Metts v. Almond

363 F.3d 8

• Court: Court of Appeals for the First Circuit
• Decided: October 28, 2003
• Docket: 02-2204
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 02-2204

HAROLD METTS; JEAN WIGGINS; BRYAN EVANS; STEPHANIE CRUZ; URBAN LEAGUE; NAACP - PROVIDENCE; BLACK AMERICAN CITIZENS POLITICAL ACTION COMMITTEE,

Plaintiffs, Appellants,

v.

WILLIAM J. MURPHY, Speaker of the House of Representatives; ROGER N. BEGIN, in his official capacity as State Board of Elections Chairman; MATTHEW A. BROWN, Secretary of State; JOSEPH A. MONTALBANO, Senate Majority Leader,

Defendants, Appellees,

DONALD L. CARCIERI, Governor; CHARLES FOGARTY, Lt. Governor and Presiding Officer of the Senate,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, Chief U.S. District Judge]

Before

Selya, Circuit Judge, Stahl, Senior Circuit Judge, and Lynch, Circuit Judge.

Anita Hodgkiss, Lawyers' Committee for Civil Rights Under Law, with whom Sunil R. Kulkarni, Morrison & Foerster LLP, Kelli Reynolds, NAACP Legal Department, and Bruce G. Pollock were on brief, for appellants. Joseph M. Fernandez and Goldenberg & Muri LLP on brief for Rhode Island Affiliate, American Civil Liberties Union, amicus curiae.

Marlene Twaddell on brief for Puerto Rican Political Action Committee and Direct Action for Rights and Equality, amici curiae.

John A. Tarantino, with whom Patricia K. Rocha, Victoria M. Almeida, and Adler Pollock & Sheehan P.C. were on brief, for appellee Senate Majority Leader.

Richard B. Woolley and Thomas A. Palombo, Assistant Attorneys General, on brief for appellee Secretary of State.

Normand G. Benoit, Eugene G. Bernado, II and Partridge Snow & Hahn LLP on brief for appellee Speaker of the House of Representatives.

Raymond A. Marcaccio on brief for appellee Chairman of the State Board of Elections.

October 28, 2003 LYNCH, Circuit Judge. A group of African-American voters

and related organizations brought a challenge under § 2 of the

Voting Rights Act, 42 U.S.C. § 1973 (2000), to the Rhode Island

state senate redistricting plan adopted in 2002. They allege that

although African-Americans did not constitute a numerical majority

in any state senate district before redistricting, they have

historically had the ability to elect a representative of their

choice with the help of crossover votes in one of the former

districts. They claim that as a result of the redistricting plan,

this opportunity has been adversely affected (indeed, eliminated)

by the reduction of the African-American percentage in the relevant

district. After the districts were redrawn, their candidate of

choice, at that time an incumbent, lost his seat in the Democratic

Party primary. Because of the makeup of the newly configured

district, the victor in the primary was effectively assured of

being the victor in the general election.1

The district court dismissed the claim under Fed. R. Civ.

P. 12(b)(6) because the African-American group could not form a

numerical majority in any district and because that group would

require crossover votes to elect a candidate of its choice. Under

1 While the loss of the incumbent, Charles D. Walton, in Senate District 9 is not part of the plaintiffs' complaint, we take judicial notice of this electoral outcome. The fact of his loss is undisputed and has been referred to by the parties. It is also an easy inference from the complaint that the African-American voters' candidate of choice would lose after and as a result of the redistricting process.

-3- the standard for Rule 12(b)(6) dismissal, which permits dismissal

of a complaint "only if it is clear that no relief could be granted

under any set of facts that could be proved consistent with the

allegations," Hishon v. King & Spalding, 467 U.S. 69, 73 (1984),

we reverse the dismissal of the claim.2

I.

On May 2, 2002, a group of individual plaintiffs and

advocacy organizations challenged the redistricting plan in the

United States District Court for the District of Rhode Island under

§ 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973. The

plaintiffs named as defendants the Governor, the Lieutenant

Governor, the Speaker of the House of Representatives, the State

Board of Elections Chairman, the Secretary of State, and the Senate

Majority Leader.3

When reviewing the dismissal of a complaint under Fed.

R. Civ. P. 12(b)(6), "[w]e accept as true the well-pleaded factual

allegations of the complaint, draw all reasonable inferences

therefrom in the plaintiff's favor and determine whether the

complaint, so read, sets forth facts sufficient to justify recovery

on any cognizable theory." Martin v. Applied Cellular Tech., Inc.,

2 We express our appreciation to amici for their valuable assistance. 3 Many of the defendants originally sued in their official capacities no longer occupy their respective offices. The current incumbents have been substituted as defendants for their predecessors in office. See Fed. R. App. P. 43(c)(2).

-4- 284 F.3d 1, 6 (1st Cir. 2002). Thus, the following facts are

derived from the plaintiffs' amended complaint.

On February 23, 2002, the Rhode Island General Assembly

voted to pass a redistricting plan for the state senate. An

alteration was necessary for two reasons. First, there was a need

to adjust the senate districts to account for shifts in state

population. Second, a recent state constitutional amendment

reduced the number of senate districts from fifty to thirty-eight,

necessitating an entirely new district map with larger districts.

The new senate district plan was highly controversial.

There were concerns from the beginning that the plan might make it

more difficult for African-American voters to elect candidates of

their choice. Various community groups and individuals testified

before the legislature against the plan on the grounds that it

would not give African-American voters "an equal opportunity to

elect candidates of their choice" to the state senate, and that the

plan unnecessarily abridged the voting rights of African-American

voters in violation of the VRA. Nonetheless, the senate's

judiciary committee "approved the plan[] without taking the time to

evaluate the proposals and comments of those opposed to the plan."

It is fair to infer, given that there was only one African-American

senator, that the plan was approved over the objections of the

African-American community and its representative. Governor

Lincoln Almond refused to sign the legislation, explicitly

-5- questioning its fairness to Rhode Island's minority populations.

He did not veto it, however, and the plan became law without his

signature on February 23, 2002.

The population of Rhode Island is four percent African-

American,4 over half of whom live in Providence. The state's

African-American citizens continue to suffer from past official

discrimination in housing, education, health care, and employment.

By common measures of socio-economic status, educational

attainment, and access to political resources, they continue to lag

behind the rest of the state. Only one African-American state

senator, the chosen candidate of the African-American community,

has ever been elected in Rhode Island; that senator, Charles D.

Walton, represented the old Senate District 9 until the

redistricting. According to the census data from the year 2000,

that district was 25.69% African-American and 41.08% Hispanic.

Much of Providence's African-American population is now within the

new Senate District 2. The population of this new district is

21.42% African-American and 46.74% Hispanic, and the voting age

population is 21.43% African-American and 43.12% Hispanic.5

4 The complaint makes a distinction between Hispanic voters and "Non-Hispanic African-American" voters. We use "African- American" to describe the latter group, as distinguished from Hispanic African-Americans, whom the complaint counts as members of the Hispanic community. 5 The complaint does not specify the voting age population demographics of the old Senate District 9, nor does it specify the percentage of the population that is white in either the old Senate

-6- Plaintiffs plead that the African-American voters in

Rhode Island are themselves politically cohesive, and that they are

not cohesive with Hispanic or white voters. Although no

alternative plans were appended to the complaint, plaintiffs claim

that it is possible to divide the state into thirty-eight districts

such that one senate district would have a population that is at

least twenty-six percent African-American, and in such a district

it would be possible for "an African-American candidate preferred

by African-American voters" to win election due to white and

Hispanic crossover support. However, if a district is less than

twenty-six percent African-American, "[t]he white and Hispanic

communities vote sufficiently in a bloc usually to defeat the

candidate of choice of African-American voters."

II.

Without filing a responsive pleading, the defendants

quickly moved to dismiss on the basis of Fed. R. Civ. P. 12(b)(6)

for failure to state a claim. They argued that the complaint fails

to allege that it is possible to create a senate district in which

African-Americans are a majority, and that such an allegation is

required by Thornburg v. Gingles, 478 U.S. 30 (1986), and its

progeny.

On September 9, 2002, the district court granted the

defendants' motion. Metts v. Almond, 217 F. Supp. 2d 252 (D.R.I.

District 9 or the new Senate District 2.

-7- 2002). The district court analyzed the plaintiffs' complaint as

both an "ability to influence" claim and an "ability to elect"

claim. As to the former, it found that influence claims are not

cognizable under § 2. Id. at 257. As to the latter, it held that

Gingles requires that a minority group be able to constitute a

majority without the help of crossover votes from other groups.

Id. at 260. Finally, the district court also dismissed the

complaint based upon a failure to demonstrate that the majority in

Senate District 9 votes as a bloc, another requirement set out in

Gingles. Id. at 260-61. The plaintiffs appeal the dismissal of

their claim.

III.

A. Standard of Review

We review de novo a district court's dismissal of a

complaint for failure to state a claim under Rule 12(b)(6),

Morales-Villalobos v. Garcia-Llorens, 316 F.3d 51, 52 (1st Cir.

2003), taking well-pleaded facts in the complaint as true and

making all reasonable inferences in favor of the plaintiffs.

Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002).

Rule 12(b)(6) permits dismissal of a complaint for "failure of the

pleading to state a claim upon which relief can be granted." For

the purposes of Rule 12(b)(6), "it is enough for a plaintiff to

sketch a scenario which, if subsequently fleshed out by means of

appropriate facts, could support an actionable claim." Garrett v.

-8- Tandy Corp., 295 F.3d 94, 105 (1st Cir. 2002). We must reverse if

the plaintiffs have included in their complaint well-pleaded facts

which, taken as true, "justify recovery on any supportable legal

theory." Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir. 2000).

B. Legal Background

Section 2 of the VRA forbids any "voting qualification or

prerequisite to voting or standard, practice, or procedure . . .

which results in a denial or abridgement of the right of any

citizen of the United States to vote on account of race or color."

42 U.S.C. § 1973(a). First passed in 1965, it was amended in 1982

to specify that the test is one of adverse impact to minority

communities and does not require a showing of discriminatory

intent.6 Pub. L. No. 89-110, tit. I, § 2, 79 Stat. 437, 437

(1965), amended by Pub. L. No. 97-205, § 3, 96 Stat. 131, 134

(1982). A violation is established "if, based on the totality of

circumstances, it is shown that . . . a class of citizens . . .

[has] 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 Supreme Court first construed the post-amendment VRA

6 The amendment was meant, in part, to overturn the Supreme Court's interpretation of the VRA in City of Mobile v. Bolden, 446 U.S. 55, 61 (1980). See P. McCrary, Bringing Equality to Power: How the Federal Courts Transformed the Electoral Structure of Southern Politics, 1960-1990, 5 U. Pa. J. Const. L. 665, 697-699 (2003).

-9- in Thornburg v. Gingles, supra. Gingles was a challenge to a

redistricting plan that included multimember districts, which are

legislative districts from which more than one representative is

elected at a time. 478 U.S. at 35. The Gingles court established

three "preconditions" for a VRA challenge to multimember districts.

First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. . . . Second, the minority group must be able to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate.

Id. at 50-51. The Supreme Court has, in subsequent cases, held

that some form of these three preconditions should also apply to

challenges to single-member legislative districts. Growe v.

Emison, 507 U.S. 25, 40-41 (1993) (applying the second

precondition); see also Voinovich v. Quilter, 507 U.S. 146, 157-58

(1993) (applying the third precondition). The Court has summarized

the three in shorthand terms as "compactness/numerousness, minority

cohesion or bloc voting, and majority bloc voting." Johnson v. De

Grandy, 512 U.S. 997, 1011 (1994). As a matter of pleading, the

complaint explicitly pleads the second and third of the Gingles

preconditions as well as geographic compactness under the first

precondition.

This is not a case, as in De Grandy, where minority

voters hold a majority in some districts and the issue is whether

§ 2 of the VRA requires courts to maximize the number of districts

-10- in which minority voters may elect their candidates of choice.

Here, the only district in which African-American voters could

elect a candidate of their choice (with help from crossover voting)

was altered significantly; the result, plaintiffs say, is that

African-American voters can no longer elect a candidate of their

choice in any state senatorial district. Far from complaining that

the legislature has failed to maximize their political power, these

plaintiffs complain that their opportunity to elect a candidate of

their choice has been minimized -- indeed, eliminated.

C. First Precondition: Compactness & Numerousness

1. Ability to Influence and Crossover Voting

The district court characterized plaintiffs' claim as

alternately an "ability to influence" claim and an "ability to

elect" claim. The Gingles Court, when fashioning the three

preconditions to a redistricting challenge to a multimember

district, expressly reserved the question of whether § 2 permitted

claims by a minority group "alleging that the use of a multimember

district impairs its ability to influence elections," and whether

the three preconditions would apply unabated to such a claim. 478

U.S. at 46 n.12 (emphasis in original). The same question of the

meaning of an ability to elect as opposed to an ability to

influence arises in challenges to single member districts. See De

Grandy, 512 U.S. at 1008-09; Voinovich, 507 U.S. at 154.

Since Gingles, there has been much confusion over the

-11- definition of an influence claim under the VRA. Most often,

influence districts have been defined as ones "in which a minority

group has enough political heft to exert significant influence on

the choice of candidate though not enough to determine that

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

1998) (reserving question of whether such a claim is cognizable);

see Cousin v. Sundquist, 145 F.3d 818, 828-29 (6th Cir. 1998)

(refusing to recognize such a claim under the VRA); McNeil v.

Legislative Apportionment Comm'n, 828 A.2d 840, 852-53 (N.J. 2003)

(recognizing influence dilution claims under the VRA). This court

has also used the "influence district" terminology in this sense.

Vecinos de Barrio Uno v. City of Holyoke, 72 F.3d 973, 990-91 (1st

Cir. 1995).

The confusion stems from the intersection of this type of

influence claim and another type, in which a minority group

constituting less than fifty percent of the electorate can elect a

candidate of its choice with the help of crossover votes from

voters in the majority group. See R.H. Pildes, Is Voting Rights

Law Now at War with Itself? Social Science and Voting Rights in

the 2000s, 80 N.C. L. Rev. 1517, 1539-40 & n.60 (2002) (referring

to this latter type of district as a "coalitional district"); Note,

The Future of Majority-Minority Districts in Light of Declining

Racially Polarized Voting, 116 Harv. L. Rev. 2208, 2209-10 & n.13

(2003). We will refer to this second type of influence claim as a

-12- "crossover district."7 The Supreme Court has not had the

opportunity to address this distinction;8 the Court in Voinovich

used the term "influence district" to describe a crossover district

-- one in which minorities could, despite the inability to form a

majority, "elect their candidate of choice nonetheless if they are

numerous enough and their candidate attracts sufficient cross-over

votes." 507 U.S. at 154.9

Plaintiffs, for their part, forswear any claim under the

ability to influence rubric, choosing to stand or fall entirely on

an ability to elect claim. However, they do so only as far as the

7 We use "crossover" in a specialized sense with regard to racial blocs. The term is also used in a different sense when members of one political party cross over to vote in the other party's primary. See Easley v. Cromartie, 532 U.S. 234, 245 (2001). 8 The recent Supreme Court decision in Georgia v. Ashcroft, 123 S.Ct. 2498 (2003), considered influence districts and crossover districts in the § 5 context, but did not resolve the relationship between the two. 9 Crossover districts where plaintiffs allege an ability to elect also may be confused with a third type of claim, a "minority coalition" claim, in which two separate minority groups allege that a district could be formed in which they could join forces to elect a representative. See De Grandy, 512 U.S. at 1020 (describing such a VRA claim); Concerned Citizens v. Hardee County Bd., 906 F.2d 524, 526-27 (11th Cir. 1990) (indicating that minority coalition claims meet the first Gingles precondition); Brewer v. Ham, 876 F.2d 448, 453 (5th Cir. 1989) (same). But see Nixon v. Kent County, 76 F.3d 1381, 1392 (6th Cir. 1996) (en banc) (rejecting a minority coalition claim). We take no position on that issue. Plaintiffs do not allege that they and another minority group form a minority coalition and that such a coalition may qualify as a "class" under § 2. Rather, this suit appears to posit that the interests of African-American voters have been pitted against the interests of Hispanic voters.

-13- term "influence district" describes one where a minority group is

unable to elect a candidate of its choice even with crossover

support. They use the term "influence district" in the complaint

to describe what we label a crossover district, in which African-

American voters have an ability to elect with crossover support.

We consider only this type of influence claim, and not the more

nebulous variety described in Barnett and disavowed by plaintiffs.

The Supreme Court has expressly held open the question

of whether the Gingles preconditions should apply to influence

claims. See De Grandy, 512 U.S. at 1009; Voinovich, 507 U.S. at

154; Gingles, 478 U.S. at 46 n.12. We read the language of these

cases, especially Gingles and Voinovich, to profess a willingness

to consider a crossover district claim such as the one plaintiffs

plead. The Gingles language setting aside the question of an

influence claim did not differentiate between crossover district

claims and claims in which plaintiffs profess only an ability to

affect, not determine, electoral outcomes. But the Court has not

flatly refused to consider a crossover district despite the

opportunity to do so. See Voinovich, 507 U.S. at 154.

The Supreme Court's recent opinion in Georgia v.

Ashcroft, 123 S.Ct. 2498 (2003), also supports our conclusion that

crossover districts should be considered in the § 2 context.

-14- Georgia interpreted § 5 of the VRA.10 The Court has repeatedly

warned that § 2 and § 5 "combat different evils and . . . impose

very different duties upon the States." Reno v. Bossier Parish

Sch. Bd., 520 U.S. 471, 476 (1997). Despite the differences

between § 2 and § 5 analysis, the Court's treatment of influence

and crossover districts in Georgia is highly instructive.

Georgia held that when assessing retrogression, courts

must consider not only majority-minority districts but also the

existence of influence districts, including crossover districts.

123 S.Ct. at 2512. The state's plan created two additional

districts with a minority population of between thirty and fifty

percent, and two districts with a population of between twenty-five

and thirty percent. These districts, the Court found, were crucial

to determining the overall effect of the new redistricting plan.

Id. at 2515. Indeed, the Court was unanimous that crossover

districts should be considered in the § 5 analysis; the dissent

objected only to the use of those influence districts in which it

was not clear that minority voters would have an ability to elect

even with crossover support. See id. at 2513, 2514; id. at 2518-19

(Souter, J., dissenting). If crossover districts are important

10 Under § 5, the Attorney General of the United States must preclear a covered jurisdiction's "standard, practice, or procedure." 42 U.S.C. § 1973c. Preclearance depends on whether the change "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S. 130, 141 (1976).

-15- enough to minority voters to be considered when assessing a

redistricting plan's retrogression, it would be an odd result if

the same voters could not bring a § 2 claim when such a crossover

district is eliminated by redistricting.

Given these Supreme Court precedents, we believe that

whatever the status of other influence claims, at least crossover

district claims are cognizable under § 2 of the VRA. We decline to

hold, as a matter of law, that they are not.

This conclusion is consistent with our decision in

Vecinos de Barrio Uno, supra, where this court held that an

"influence district" that was twenty-eight percent Hispanic should

be considered in the determination of whether the minority

population's voting strength had been diluted. 72 F.3d at 990-91

("[T]he voting strength of a minority group is not necessarily

limited to districts in which its members constitute a majority of

the voting age population, but also extends to every district in

which its members are sufficiently numerous to have a significant

impact at the ballot box most of the time."). Unlike the present

case, the influence district in Vecinos de Barrio Uno was used by

the defendant city as evidence that the minority population

retained political power. Moreover, the city was not alleging that

the minority group could elect its own candidate with crossover

support, but only that it was large enough to wield influence over

the outcome. Despite these factual differences, this court's

-16- recognition that influence districts may be used to show the

existence of the political power of minority groups reinforces the

decision to recognize, at least in theory, a suit complaining that

a crossover district has been unjustly eliminated.

Though Gingles did not apply the preconditions to

influence claims, however they are defined, some preconditions must

apply in order to link the complained-of voting practice with the

harm the plaintiffs allege. Gingles, 478 U.S. at 48-51; see

Vecinos, 72 F.3d at 979 n.2 ("[The first] precondition will have to

be reconfigured to the extent that the courts eventually validate

so-called influence dilution claims."). For the purposes of this

discussion, we assume that plaintiffs' claim must satisfy the

second and third Gingles preconditions, and that some form of the

first precondition will also apply.

2. Majority Requirement

The first Gingles precondition requires that "the

minority group must be able to demonstrate that it is sufficiently

large and geographically compact to constitute a majority in a

single-member district." 478 U.S. at 50. Some courts have read

this literally to mean that unless plaintiffs can show that they

can constitute an absolute majority in a single district -- that

is, more than fifty percent -- then there is no possible § 2

-17- claim.11 See Valdespino v. Alamo Heights Indep. Sch. Dist., 168

F.3d 848, 852-53 (5th Cir. 1999), cert. denied, 528 U.S. 1114

(2000); Perez v. Pasadena Indep. Sch. Dist., 165 F.3d 368, 371-73

(5th Cir. 1999), cert. denied, 528 U.S. 1114 (2000); see also

Negron v. City of Miami Beach, 113 F.3d 1563, 1571 (11th Cir.

1997); Parker v. Ohio, 263 F. Supp. 2d 1100, 1104-05 (S.D. Ohio

2003). That approach has been criticized as a "talismanic

requirement, divorced from any underlying functional reasons."

Pildes, supra, at 1555. If that approach were followed here,

plaintiffs' complaint would fail to meet the first precondition.

We reject the conclusion that no § 2 cause of action is

ever stated, regardless of the nature of the claim, unless

plaintiffs can show that a minority group would be a literal

majority in a single district. The approach is inconsistent with

the Supreme Court's own descriptions of the functions served by the

first Gingles precondition. It is also inconsistent with the

variety of political realities the VRA was meant to address; a

demographic fact of life in some areas of the country is that no

single racial group constitutes an absolute majority. And finally,

it contravenes the plain text of § 2, which requires courts to

consider the "totality of the circumstances."

11 On defendants' theory, a discrete, geographically compact racial group (here, African-Americans) is not entitled to avail itself of § 2 of the VRA until it is large enough to constitute a numerical majority in any given district.

-18- Requiring the protected class to show that it is an

absolute majority ignores the reality that the class could elect

its preferred candidate without such numbers. Thus, a discussion

of whether the protected class forms a "majority" is not

necessarily helpful in determining whether an "electoral law,

practice, or structure interacts with social and historical

conditions," Gingles, 478 U.S. at 47, to impair the ability of the

class to vote. The plaintiffs here have alleged that African-

American voters formed a politically cohesive group that was able,

with the assistance of crossover voting, to elect the candidate of

its preference in a district that was less than fifty percent

African-American and that, in a properly drawn district, they could

continue to do so.

In the context of this case, that pleading suffices to

satisfy the interests identified by the Supreme Court for the first

Gingles precondition. That precondition should not be read without

regard to its function: to determine whether "the ability of

minority voters to elect representatives of their choice" is

impeded. Gingles, 478 U.S. at 48. As the Court has noted, "the

Gingles factors cannot be applied mechanically and without regard

to the nature of the claim." Voinovich, 507 U.S. at 158.12 Gingles

12 Consonant with its holding that the Gingles preconditions are in some form applicable to single-member districts, the Supreme Court has consistently avoided applying the first precondition to challenges to such districts. See De Grandy, 512 U.S. at 1009 (assuming the first precondition is satisfied); Voinovich, 507 U.S.

-19- itself, in reviewing a multi-member district, noted that the

function of the first precondition was to assure that there was a

causal relationship between the creation of the district lines and

the harm to the plaintiffs; if the minority group's candidate could

not prevail even in a single district, then "the multimember form

cannot be responsible for minority voters' inability to elect its

candidates." 478 U.S. at 50 (emphasis removed). Similarly, when

discussing majority bloc voting in the context of the third

precondition, Gingles defined it as that which is sufficient

usually to "defeat the combined strength of minority support plus

white crossover votes." Id. at 56 (internal quotation marks

omitted); see also Jenkins v. Red Clay Consol. Sch. Dist. Bd. of

Educ., 4 F.3d 1103, 1123 (3d Cir. 1993) ("[T]he Gingles [third

precondition] standard presupposes the existence of crossover

voting."). Growe reinforced this functional analysis, noting that

"the 'geographically compact majority' and 'minority political

cohesion' showings are needed to establish that the minority has

the potential to elect a representative of its own choice in some

single-member district." 507 U.S. at 40. Such support for a

functional approach leaves room to include claims in which an

electoral majority is formed only with crossover support.

This functional approach also better accounts for various

political realities. In electoral schemes in which representatives

at 158 (same); Growe, 507 U.S. at 41 (same).

-20- can usually be elected with less than a majority of the vote,

Gingles should not be read to require that the minority group

nevertheless be able to form a literal majority in a reconfigured

district. Rhode Island law specifically provides that candidates

in both primary and general elections for state office may be

elected with a plurality of the vote. See R.I. Const. art. IV, §

2 (general elections); R.I. Gen. Laws § 17-15-29 (2002) (primary

elections). In such cases, constituting a majority would not be

necessary for minorities to "elect a representative of their

choice." 42 U.S.C. § 1973(b); see Romero v. Pomona, 883 F.2d 1418,

1424 n.7 (9th Cir. 1989), overruled on other grounds, 929 F.2d 1358

(9th Cir. 1990).13 "To the extent that courts have read Gingles to

elevate the ability to create a district with a majority-black

electorate into a threshold requirement for establishing liability

in all vote dilution litigation, they have improperly applied one

particular theory of liability to other distinct types of vote

dilution." P.S. Karlan, Maps and Misreadings: The Role of

Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv.

C.R.-C.L. L. Rev. 173, 202 (1989).

Georgia v. Ashcroft, supra, confirms that influence

13 But see Brewer, 876 F.2d at 454 (requiring a majority even for plurality elections, reasoning that a "plurality feature is of course more responsive to minority voter groups"); McNeil v. Springfield Park Dist., 851 F.2d 937, 943-44 (7th Cir. 1988) (rejecting any showing of less than an absolute majority as unduly speculative).

-21- districts, including crossover districts, are important to any

practical assessment of minority voting power. In Georgia, the

Court emphasized the fact-bound nature of VRA claims, holding that

the retrogression inquiry under § 5, like the dilution inquiry

under § 2, see 42 U.S.C. § 1973(b), requires an assessment of the

"totality of the circumstances." 123 S.Ct. at 2511. One reason

for this broad factual inquiry, the Court indicated, is that "[t]he

ability of minority voters to elect a candidate of their choice is

important but often complex in practice to determine." Id.

Accordingly, the Court held, influence and crossover districts must

be considered as part of that determination in the retrogression

context. Id. at 2512. The Court also cited empirical studies

indicating that such districts may maximize minority voting

strength. Id. at 2512-13.

We also consider relevant both modern and historical

political realities. During the 1970s and 1980s, African-American

populations usually could not elect representatives of their choice

unless they constituted a majority in an electoral district. See

generally Quiet Revolution in the South (C. Davidson & B. Grofman

eds., 1994). Indeed, usually a mere majority was not sufficient;

many believed that to overcome racial bloc voting patterns, the

total minority population needed to be sixty-five percent.

See Ketchum v. Byrne, 740 F.2d 1398, 1415-16 (7th Cir. 1984)

(collecting sources). But the percentage of minority population

-22- necessary to elect a candidate has been steadily declining. By

1990, fifty-five percent was generally considered sufficient. And

thereafter, due to increased white crossover voting, the number has

slipped below majority level. One study reported that during the

1990s, an African-American candidate could be elected from a

congressional district that was between thirty-three and thirty-

nine percent African-American. B. Grofman, L. Handley & D. Lublin,

Drawing Effective Minority Districts: A Conceptual Framework and

Some Empirical Evidence, 79 N.C. L. Rev. 1383, 1407-09 (2001). The

percentage of minority voters necessary to elect a candidate

depends heavily on the political makeup of the district as a whole,

see Pildes, supra, at 1535-36, a matter difficult to determine on

a motion to dismiss a complaint.

In sum, it is not an absolute bar to a claim under § 2 of

the VRA that some amount of crossover voting is needed for a

minority group to elect a candidate of its choice.14 See Armour v.

14 Our dissenting colleague engages in the sort of factual predictions that courts are forbidden to indulge on a motion to dismiss. See Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (refusing to engage in "speculation" on appeal from a Rule 12(b)(6) dismissal and instead assuming the truth of the averments in the complaint). The dissent assumes that a minimum level of crossover voting of 32% will be required for the African- American minority to elect a candidate of its choice, and it assumes that only two-candidate contests are relevant. It assumes that the African-American voters' inability to elect their preferred candidate "can much more readily be attributed to candidate-specific issues" than to the reduction in the representation of the African-American community in the political process. It assumes that plaintiffs will establish no history of discrimination against black citizens in the political process. It

-23- Ohio, 775 F. Supp. 1044, 1059-61 (N.D. Ohio 1991) (three-judge

court); see also McNeil, 828 A.2d at 852-53; Powers, 263 F. Supp.

2d at 1109-1113 (three-judge court) (Gwin, J., concurring in

judgment); West v. Clinton, 786 F. Supp. 803, 807 & n.2 (W.D. Ark.

1992) (three-judge court).

Though a claim that includes crossover voting may be

cognizable under the first precondition for a § 2 cause of action,

not every such claim will pass muster. It would be discordant with

the Act, for instance, to consider a crossover district claim from

a numerically tiny minority population that can only claim a hope

to elect a candidate with an overwhelming number of crossover

votes. Several limiting principles readily present themselves.15

assumes that there will not be sufficient bloc voting by Hispanic voters after the redistricting to defeat the African-American community's candidate of choice. Further, the dissent assumes that "whites and Hispanics would have to cast almost half of the votes needed for a successful senatorial candidacy." In a plurality race, as the dissent apparently concedes, that is almost certainly untrue. Even in a two-candidate race, it may be untrue -- given, for example, low overall voter turnout, high African-American turnout, and African- American bloc voting. Similarly, the dissent assumes that a 5% reduction in the African-American population is insignificant. But the former African-American state senator may have lost the election by that 5%. Each of these assumptions reflects factual inferences that, by law, must be made in plaintiffs' favor on a motion to dismiss. United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992). 15 We reach a determination only with regard to crossover districts, the sole type of influence claim presented in this appeal. We reach no conclusion concerning other types of influence claims, which, if they are recognized, may require a different application of the Gingles preconditions and different limiting principles.

-24- First, this case presents a claim not merely of an

abstract hope to elect the African-American voters' preferred

candidate through both African-American and crossover voting. The

alleged loss is much more concrete. Historically, the African-

American community's preferred candidate was consistently elected,

even though African-American voters were less than a numerical

majority in the district. The redistricting plan, however,

significantly reduced the percentage of African-American voters in

the district, and the candidate lost his bid for reelection.

African-American voters sued, saying they had been denied an equal

opportunity to elect the candidate of their choice, and on this

motion to dismiss, the redistricting plan must be taken as the

cause of the lost election. That is not to say that a history of

electoral success is a necessary part of a successful claim,

especially if the lack of success is due to historic vote dilution,

but the minority group's historical voting success makes this an

easier case.

The second is the statutory requirement that a minority

population be able to elect, in a potential district,

"representatives of their choice." 42 U.S.C. 1973(b) (emphasis

supplied). A minority group may require so many crossover votes

that it does not truly have the capacity to choose its own

candidate, but only to help elect candidates chosen by other

groups. If so, plaintiffs cannot make a crossover district claim.

-25- Here, however, the plaintiffs clearly plead in their complaint that

the African-American community can elect its own candidate with

crossover support in a properly drawn district.

The third limitation is expressed in the third

Gingles precondition: "the minority must be able to demonstrate

that the white majority votes sufficiently as a bloc to enable it

. . . usually to defeat the minority's preferred candidate." 478

U.S. at 51. A minority population that is too small, and that

therefore requires too high a level of crossover support, will not

be able to meet the third precondition. If the majority population

is willing to provide crossover support to minority-chosen

candidates at very high levels, then it cannot be said to be voting

as a bloc against these candidates. For the reasons described

below, the plaintiffs' complaint offers enough on the third

precondition to render a Rule 12(b)(6) dismissal on that ground

inappropriate.16

Finally, we note that this is not a situation, as in

Georgia v. Ashcroft, supra, where the leaders of the African-

American community developed the redistricting plan at issue. The

contrary is true here. With only one state senator out of fifty,

the African-American community had precious little political

strength in the senate before the redistricting. After the plan

16 The parties agree that the second Gingles precondition is met by the plaintiffs' pleading that "African-American voters in the State of Rhode Island are politically cohesive."

-26- was implemented, they lost their only representation. Similarly,

this is not a case about the failure to maximize potential African-

American voting power. Cf. Abrams v. Johnson, 521 U.S. 74 (1997).

Rather, this is a case about the elimination of African-American

voters' opportunity to elect the candidate of their choice, an

opportunity that they had consistently enjoyed prior to the

redistricting.

D. Third Precondition: Majority Bloc Voting

The third Gingles precondition requires that "the

minority must be able to demonstrate that the white majority votes

sufficiently as a bloc to enable it . . . usually to defeat the

minority's preferred candidate." 478 U.S. at 51. Again, this is

part of a functional approach to the Act. See id. ("In

establishing this last circumstance, the minority group

demonstrates that submergence in a white multimember district

impedes its ability to elect its chosen representatives."). This

court has described the third condition as addressing "whether the

challenged practice, procedure, or structure is the cause of the

minority group's inability to mobilize its potential voting power

and elect its preferred candidates," Vecinos, 72 F.3d at 980, and

referred to the bloc simply as a "majoritarian" bloc, id. at 981,

982.

The district court held that the plaintiffs' complaint

failed to satisfy this third condition. First, it read Gingles

-27- specifically to require that the majority bloc must be a white

numerical majority. While the complaint does not specify the white

population of Senate District 2, it can be no more than 31.84%

after subtracting the African-American and Hispanic population.

Furthermore, the court calculated that because the old district was

only twenty-six percent African-American, the crossover vote needed

to elect the candidate preferred by African-American voters would

have to constitute twenty-four percent of the electorate. If half

of that crossover vote were white, the court reasoned, then the

white population would be crossing over at a rate of about one-

third, which it thought too high to be consistent with "bloc

voting" needed to "defeat the minority's preferred candidate."

Metts, 217 F. Supp. 2d at 260-61.

This reasoning has several flaws. Inherent in the

court's analysis is the assumption that the electoral contest would

have only two candidates. That is not necessarily so, particularly

in primaries. In many jurisdictions, the winner of a particular

party's primary is de facto the winner of the general election; it

may be inferred that this was historically the case in the old

Senate District 9 and it remains true in the reconfigured Senate

District 2. The court also allocated the crossover vote half to

whites and half to Hispanics, but there is simply no evidence of

the racial composition of the crossover votes, either historically

or in a proposed alternative district.

-28- Further, we reject the district court's impermissible

focus on only the white voters in Senate District 2 for purposes of

the third Gingles precondition. The plaintiffs, in their

complaint, claim that "[t]he white and Hispanic communities vote

sufficiently as a bloc usually to defeat the candidate of choice of

African-American voters when that candidate is African-American and

the district is less than twenty-six percent black in total

population." Under the standards of Rule 12(b)(6), such claims in

the complaint may be rejected only if they are "bald assertions" or

"unsupportable conclusions." Chongris v. Bd. of Appeals, 811 F.2d

36, 37 (1st Cir. 1987). Neither characterization can be said to be

true here.

The VRA does not, by its terms, afford protection to or

against any particular racial or ethnic group; if it did, it might

well be suspect under the Equal Protection Clause. U.S. Const.

amend. XIV, § 1. The language of Gingles referred to a "white

majority" only because that happened to be the composition of the

majority on the facts before the Court. See 478 U.S. at 51.

Nor must the majority bloc be comprised of only one race.

While the "protected class" being discriminated against must be

constituted of a particular "race or color," see 42 U.S.C.

§ 1973(a), there is no requirement in the VRA that a contrary

voting bloc be of just one race. Coalitions of certain races that

characteristically vote against the preferred candidate of a

-29- different racial group may well constitute bloc voting for purposes

of the third Gingles precondition. In De Grandy, the Supreme Court

considered such a challenge to Florida's state legislative

districts. In one county, there were three large voter groups:

African-Americans, Hispanics, and whites. The trial court found,

based on expert testimony, that during elections pitting a minority

candidate against a white one, the white voters would vote as a

bloc along with the other minority group's voters to elect the

white candidate. De Grandy v. Wetherell, 815 F. Supp. 1550, 1572

(N.D. Fla. 1992) (three-judge court). The Supreme Court did not

find this fact pattern problematic as a means to satisfy the third

Gingles precondition. De Grandy, 512 U.S. at 1007. In a similar

case, also reviewing a challenge to a Florida redistricting plan,

the Eleventh Circuit found that "a coalition of Hispanics and Non

Latin Whites could form the relevant majority voting bloc for the

purpose of the third Gingles factor." Meek v. Metro. Dade County,

908 F.2d 1540, 1545-46 (11th Cir. 1990). We agree.

The district court's rationale does, however, highlight

a potential difficulty with the plaintiffs' complaint. In the

plaintiffs' proposed remedial district, the African-American

population would be at least twenty-six percent. Depending on how

the facts are developed, that number may raise issues related to

the third precondition. If it is true that a majority (rather than

only a plurality) is needed to elect a candidate, if the racial

-30- makeup of the voters is proportional to the racial composition of

the district, and if, as the plaintiffs assert, the African-

American voters are politically cohesive, then crossover voting

would need to reach twenty-four percent. In that scenario, thirty-

two percent of the non-African-American voters would have to

support the African-American community's chosen candidate in order

to reach the majority needed. The district court believed that

such a high rate of crossover voting would be inconsistent with a

finding of bloc voting.

At the Rule 12(b)(6) stage, that conclusion is premature.

A series of factual assumptions would be required to judge the

average level of crossover support the plaintiffs are alleging,

assumptions that cannot be confirmed or repudiated at this stage of

the proceedings. While the complaint's description of a

reconfigured district includes total population figures, there is

no demographic information concerning the voting age population,

the number of registered voters, or the expected voters in any

given election, much less the typical voting patterns of various

groups. There are also no facts about the number of candidates

that typically run in the primary or general elections. Without

such information, it is impossible to know the percentage of

crossover support necessary to elect the candidate of the African-

American community's choice.

More importantly, even if the facts show that crossover

-31- voting of thirty-two percent would be required, that number,

without more, does not warrant a Rule 12(b)(6) dismissal for

failure to state a claim in light of the third

Gingles precondition. The statute commands an examination of "the

totality of circumstances." 42 U.S.C. § 1973(b). An inquiry into

the third precondition is thus an inherently factual enterprise.

"[T]he degree of racial bloc voting that is cognizable as an

element of a § 2 vote dilution claim will vary according to a

variety of factual circumstances." Gingles, 478 U.S. at 57-58; see

Vecinos, 72 F.3d at 989. The Supreme Court has been chary of per

se rules in this area, whether the claim is that a device is a per

se violation of § 2, Voinovich, 507 U.S. 154, or whether the claim

is that a single factor is a safe harbor for defendants, De Grandy,

512 U.S. at 1017-18.

One important factor about which the record is

undeveloped is the pattern of voting behavior over time. Gingles

stressed the importance of determining whether racial bloc voting

is a pattern extending over time or merely a phenomenon in a single

election. 478 U.S. at 57. The reverse is also true: the success

of a minority candidate, or the absence of bloc voting in a few

elections, cannot be taken to mean that the district does not

experience racial bloc voting overall. Id.

Furthermore, a crossover rate of thirty-two percent is

within the range of fact patterns in which courts have found

-32- majority bloc voting. Gingles itself found majority bloc voting

where the majority group supported African-American candidates in

the general election at a rate between twenty-eight and forty-nine

percent, with an average support of one-third. Id. at 59; see

Campos v. Baytown, 840 F.2d 1240, 1249 (5th Cir. 1988) (finding

majority bloc voting when the crossover vote was thirty-seven

percent). Of course, that does not mean that a crossover rate less

than one-third would always disprove majority bloc voting: in other

circumstances, the Supreme Court has found a crossover rate

averaging between twenty-two and thirty-eight percent sufficient to

suggest "a general willingness of white voters to vote for black

candidates," especially when minority candidates have a record of

success.17 Abrams v. Johnson, 521 U.S. 74, 93 (1997) (internal

quotation marks omitted).

At this stage of the litigation there is no evidence of

the degree or effect, if any, of racially polarized voting, or

whether a voting district could have been constituted to protect

the ability of both African-American and Hispanic voters to elect

candidates of their choice.

17 The dissent's citation to Abrams v. Johnson, 521 U.S. 74, 92-93 (1997), does not assist it. Abrams was decided after trial on a full record. The record revealed that there was, over time, an increased general willingness of white voters to vote for black candidates, and a corresponding decrease in racial polarization. The Abrams Court did not purport to establish a mathematical litmus test for screening cases under the third Gingles precondition on a motion to dismiss.

-33- The dissent misses the point when it objects that the VRA

is not meant "to ensure the success of candidates favored by

minority groups." In this case, it is undisputed that a minority

group's preferred candidate, an incumbent, failed to win reelection

in the first election after the state legislature adopted a

redistricting plan that decreased the percentage representation of

that minority in the candidate's home electoral district. No court

has ever held -- and it would be clear error for a court to hold --

that such a defeat is irrelevant to the question whether members of

that minority group "have 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). Plaintiffs

seek equality of opportunity, not a guarantee of electoral success.

The district court's dismissal of the plaintiffs'

complaint under Rule 12(b)(6) for failure to meet the third Gingles

precondition was inappropriate.

IV.

Congress, in enacting the Voting Rights Act, was

cognizant of this country's long and shameful history of excluding

African-Americans from our political processes. In light of the

purposes of the Fourteenth Amendment and its guarantee of equal

protection of the laws, it is no answer to say, as the dissent

does, that the federal courts should close their doors to possibly

meritorious complaints under the Voting Rights Act out of deference

-34- to majoritarian will and "difficult" legislative choices. That is

particularly true at this early stage of the litigation.

Plaintiffs must still prove their case; they must establish the

Gingles preconditions, as well as a substantive violation of the

VRA, with evidence. There is no frustration of majoritarian will

in requiring the defendants to respond to allegations that state a

claim under the Act. The dissent describes such a claim as a quest

for "unfair advantage." To the contrary, the complaint states a

claim of unfair disadvantage to African-American voters in the

exercise of the most important right in our American democracy. If

plaintiffs ultimately prevail, it will be because they have proven

that the Rhode Island legislature, acting for the majority, has

violated the Voting Rights Act by impermissibly denying members of

the African-American community in Providence an equal opportunity

to elect a state senator of their choice. As the Supreme Court

stated in Georgia v. Ashcroft, "[t]he purpose of the Voting Rights

Act is to prevent discrimination in the exercise of the electoral

franchise and to foster our transformation to a society that is no

longer fixated on race." 123 S.Ct. at 2517.

The plaintiffs must be given the opportunity to prove

their case. We express no view as to the outcome. The dismissal

of the plaintiffs' complaint is reversed and the case is remanded

for proceedings consistent with this opinion.

-35- Dissenting opinion follows.

-36- SELYA, Circuit Judge (dissenting). Although it is

regrettable that redistricting may make it more difficult for a

candidate preferred by African-American voters to win election to

the Rhode Island state senate, the Voting Rights Act is not

intended as a means of ensuring that every minority group has

exactly the district lines that it deems most advantageous. In the

circumstances of this case, I can discern no valid legal basis for

us to superimpose the appellants' will on that of the Rhode Island

General Assembly. I would therefore affirm the district court's

dismissal of the amended complaint.

My reasoning is rooted in precedent. The Supreme Court

has made it reasonably clear that, as a threshold requirement for

the maintenance of a vote dilution claim in a single-member

district, plaintiffs must show (1) that they are part of a minority

group that is sufficiently large and geographically compact to

constitute a majority in some plausible iteration of the affected

district; (2) that the group is politically cohesive; and (3) that

other racial groups engage in bloc voting significant enough to

defeat the minority group's preferred candidate. Voinovich v.

Quilter, 507 U.S. 146, 157-158 (1993) (applying Thornburg v.

Gingles, 478 U.S. 30, 50-51 (1986), to single-member districts);

Growe v. Emison, 507 U.S. 25, 40 (1993) (same). Given the nature

of their claim, I think it is fairly clear that the appellants

cannot satisfy the first precondition. It is absolutely clear,

-37- however, that they cannot simultaneously satisfy both the first and

third preconditions.

I start with the first Gingles precondition. The

appellants concede that they are unable to show that African-

Americans can constitute a literal majority in any plausible

iteration of Senate District 2. Rather, their complaint rests on

the novel premise that a minority group whose members cannot

conceivably comprise a numerical majority, even in what is from

their point of view an ideally configured single-member district,

nonetheless can mount a viable vote dilution claim by demonstrating

that the district's lines could have been drawn in such a way as to

give the minority group the ability to elect the candidate its

members prefer. Whether or not this type of claim ever can fall

within the purview of section 2 of the Voting Rights Act (VRA), 42

U.S.C. § 1973, the instant claim does not. The identified minority

group is so small and its need to rely on crossover voting so great

that the appellants' section 2 claim necessarily fails.

It is common ground that courts must apply the Gingles

preconditions to the ideal district proposed by those who challenge

a redistricting plan. See Holder v. Hall, 512 U.S. 874, 880 (1994)

(opinion of Kennedy, J.); Negrón v. City of Miami Beach, 113 F.3d

1563, 1571 (11th Cir. 1997). In this case, the appellants concede

that the adoption of a constitutional amendment downsizing the

General Assembly required redistricting of the state senate. Thus,

-38- Senate District 9 could not remain intact and had to be

reconfigured. With this in mind, the appellants describe their

ideal version of Senate District 2 as a district in which African-

Americans comprise roughly 26% of the population. This

configuration differentiates the appellants' case from the mine-

run. Typically, vote dilution claims address redistricting schemes

that take a racial minority group whose members have the potential

to comprise a numerical majority in a geographically compact

district and disperse the group across two or more districts (with

the result that its members constitute a majority in none). See

Voinovich, 507 U.S. at 153.

My colleagues suggest that we can change the paradigm

because the appellants may have been deprived of a "crossover

district" — a kind of "influence district" in which a numerical

minority is so positioned that it has an ability to swing

elections. See generally id. at 154 (describing an influence

district as one in which minority group members "could not dictate

electoral outcomes independently [but] could elect their candidate

of choice nonetheless if they are numerous enough and their

candidate attracts sufficient cross-over votes from white voters").

The Supreme Court has repeatedly refrained from deciding the

cognizability of claims based on legislative dismantling of

crossover districts, e.g., Johnson v. De Grandy, 512 U.S. 997,

1008-09 (1994); Voinovich, 507 U.S. at 154, and, until today, this

-39- court has exhibited the same restraint, e.g., Vecinos de Barrio Uno

v. City of Holyoke, 72 F.3d 973, 979 n.2 (1st Cir. 1995).

To be sure, the preservation of influence or crossover

districts may constitute a relevant factor in defending against a

vote dilution claim. See, e.g., De Grandy, 512 U.S. at 1020;

Vecinos, 72 F.3d at 990-91 & n.13; Latino Political Action Comm. v.

City of Boston, 784 F.2d 409, 414-15 (1st Cir. 1986). But to say

that a court may consider crossover districts in deferring to a

state's redistricting plan is very different from saying that a

minority has the legal right, under section 2 of the VRA, to demand

that the legislature establish such a district. The ultimate goal

of the VRA is "transition to a society where race no longer

matters." Georgia v. Ashcroft, 123 S. Ct. 2498, 2517 (2003).

Thus, minorities still bear the burden "to pull, haul, and trade to

find common political ground, the virtue of which is not to be

slighted in applying a statute meant to hasten the waning of racism

in American politics." Id. at 2512 (quoting De Grandy, 512 U.S. at

1020) (internal quotations marks omitted). My colleagues' freshly

minted "functional approach" would significantly lighten this

burden.

In all events, deciding this case does not require us to

go so far as to rule out all section 2 claims based on a

legislature's failure either to assemble or to preserve a crossover

district. Here, the raw numbers are inimical to such a claim. The

-40- pertinent demographic for analysis of the first Gingles

precondition is the voting age population. See Growe, 507 U.S. at

38 n.4; Ketchum v. Byrne, 740 F.2d 1398, 1412-13 (7th Cir. 1984).

In this case, the appellants maintain that African-Americans

represented approximately 26% of the voting age population in

former Senate District 9 yet represent only 21% of the voting age

population in the new district (Senate District 2). They claim

that this 5% differential is a political kiss of death.

Stripped of rhetorical flourishes, the appellants' thesis

proceeds along the following lines. Whenever a candidate preferred

by African-Americans runs for the state senate in the new district,

he or she will receive all the African-American votes plus no less

than 32% but no more than 37% of the combined white and Hispanic

votes (these being the percentages of all white and Hispanic voters

necessary to form a majority in conjunction with African-American

voters when African-Americans constitute 26% and 21% of the

population, respectively).18 In the appellants' view, those

crossover voters will favor the African-Americans' preferred

candidate regardless of the race or politics of his or her

opponent(s). Consequently, the redistricting plan is vulnerable

under section 2 of the VRA because the electorate's polarization is

18 This estimate is conservative. To the extent that voter registration or voter turnout differs, or that African-Americans are not completely monolithic in their voting preferences, the needed thresholds become harder to achieve.

-41- so deeply entrenched that candidate-specific variations will

operate only within a 5% margin.

Whether viewed as a matter of logic, political science,

or human behavior, this prediction strikes me as utterly

conjectural. For good reason, a difference of a few percentage

points in the minority population of a single-member district

generally has been thought unlikely to affect election outcomes.

See S. Christian Leadership Conf. v. Sessions, 56 F.3d 1281, 1296

(11th Cir. 1995) (en banc). The appellant's claim flies in the

teeth of this conventional wisdom — and the mere fact that one very

popular candidate, running uphill, had a series of successes in the

"old" district does not validate the appellants' claim.

Even if I must indulge the claim because the district

court chose to act at the Rule 12(b)(6) stage, the most that can be

said is that the appellants had forged a sort of functional

majority in former Senate District 9. By that I mean that African-

Americans, though neither numerous nor concentrated enough to

comprise a majority in the district, exhibited an ability to elect

a particularly appealing candidate with the aid of a large and

predictable non-African-American crossover vote. But whatever may

be said for functional majority claims in general, the appellants'

functional majority claim is a non-starter. Where, as here, a

minority group comprises only a relatively small fraction of the

total population of an electoral district before redistricting, the

-42- inability of group members to elect the candidate of their choice

after redistricting can much more readily be attributed to

candidate-specific issues than to a slight reduction in their

numbers. In all events, a minority group of that modest size must

rely so heavily on crossover votes, both before and after

redistricting, that section 2 of the VRA provides no safe harbor.

The figures tell the tale. In the appellants' idealized

district, whites and Hispanics would have to cast almost half of

the votes needed for a successful senatorial candidacy. Those

votes would not correlate with the individual voter's race, but,

rather, with the race of the candidate, or, alternatively, with the

race of the minority group members with whom the crossover voters

identify. This fact has two important implications. In the first

place, it confirms that, regardless of how the district's lines are

drawn, African-Americans by themselves do not have anything close

to an ability to elect the candidate of their choice. In the

second place, it demonstrates that the appellants' claim puts the

emphasis not on assuring equal opportunity for minority voters but

on assuring a victory by the African-Americans' preferred

candidate. That is the wrong emphasis. See 42 U.S.C. § 1973(b)

(identifying "members of a class of citizens," not candidates, as

the operative unit of statutory protection); see also De Grandy,

512 U.S. at 1014 n.11 (explaining that "the ultimate right of § 2

is equality of opportunity, not a guarantee of electoral success");

-43- Smith v. Brunswick County Bd. of Supervisors, 984 F.2d 1393, 1400

(4th Cir. 1993) (abjuring classification of protected groups by the

way they vote rather than by their race; to do otherwise would

impermissibly "resolv[e] discrimination issues on the basis of

whether members of the protected group are elected"); cf. Gingles,

478 U.S. at 99-100 (O'Connor, J., concurring) (agreeing that, for

purposes of a section 2 claim, voting must correlate with the race

of the voter).

The existence of this misdirected emphasis is borne out

by the fact that the appellants' proposed reconfiguration of Senate

District 2 would strengthen the electoral power not only of the

African-American community but also of the sizable white and

Hispanic crossover vote. That increased political clout would come

at the expense of the remaining two-thirds of the white and

Hispanic voters. The VRA empowers courts to protect the rights of

a minority group to participate in the electoral process so that

such a group, if treated fairly, can become a majority. It does

not give courts the raw power to privilege the interests of the few

over the interests of the many, much less the power to override the

normal functioning of the majoritarian process. See Vecinos, 72

F.3d at 982; Smith, 984 F.2d at 1400-02.

The democratic system remains the best and fairest

electoral system ever devised. Even so, the realities of democracy

are sometimes harsh. The appellants seek to avoid these realities

-44- by tempting us to treat crossover voters as if they constitute part

of a protected minority within the purview of section 2. Fidelity

to core democratic values demands that we resist this temptation.

While the Gingles preconditions contemplate a certain degree of

crossover voting, see Gingles, 478 U.S. at 56; Jenkins v. Red Clay

Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1123 (3d Cir. 1993),

there is a point at which crossover voting becomes so large a part

of the picture as to crowd out the possibility of a legally

cognizable vote dilution claim.

That is the picture painted by the amended complaint.

Where, as in this case, the bricolage comprises a roughly equal mix

of minority and crossover voters, allowing a vote dilution claim to

go forward would make sense only if the end game were to ensure the

success of candidates favored by minority groups. As I already

have explained, however, that is not the objective of the VRA. Nor

should it be; my colleagues' "functional approach" would create a

topsy-turvy world in which legislatures would have to base

redistricting plans not on the need to preserve legitimate

majority/minority districts, but, rather, on guesswork about the

way in which each constituent was likely to vote.19

19 My colleagues write that "[i]n this case, it is undisputed that a minority group's preferred candidate, an incumbent, failed to win reelection in the first election after the state legislature adopted a redistricting plan that decreased the percentage representation of that minority in the candidate's home electoral district." Maj. Op. at 34. That is not a relevant consideration. When the appellants served their amended complaint (May 14, 2002)

-45- In short, I do not believe that section 2 of the VRA

authorizes vote dilution claims that are wholly dependent upon

massive crossover voting. There is a critical distinction between

minority-preferred candidates who lose because redistricting

excludes too much of the minority electorate from a particular

district (illegal vote dilution) and minority-preferred candidates

who lose because they do not attract enough votes from other folks

within the district (legal majoritarian rule). The amended

complaint, even when taken at face value, blurs this distinction.

My colleagues attempt to blunt the force of this

reasoning in two ways. First, they posit that vote dilution claims

must be decided based on the totality of the circumstances. That

is so — but the statutory provision they cite, 42 U.S.C. § 1973(b),

does not inoculate all such claims against Rule 12(b)(6)

challenges. A plaintiff class must do more than cry "vote

dilution" to engage the gears of the VRA. The Gingles

preconditions act as a sentry at the gates — a bright-line rule

that must be satisfied before the totality of the circumstances

comes into play. See Valdespino v. Alamo Heights Indep. Sch.

Dist., 168 F.3d 848, 852 (5th Cir. 1999) (collecting cases); City

of Carrollton Branch of N.A.A.C.P. v. Stallings, 829 F.2d 1547,

1550-51 (11th Cir. 1987). This framework helps ensure the

and when the district court dismissed the case (September 9, 2002), no elections had yet been held under the redistricting plan.

-46- effectiveness of the remedy created by the VRA without distorting

either its scope or intent.

My colleagues' second gambit is to stress that Rhode

Island elects its state senators under what amounts to a plurality

system. This seems to me to be a bit of a red herring. On the one

hand, cases holding plaintiffs to the requirements of the first

Gingles precondition despite the existence of a plurality election

system are ubiquitous.20 See, e.g., Perez v. Pasadena Indep. Sch.

Dist., 165 F.3d 368, 370-71 (5th Cir. 1999); Stabler v. County of

Thurston, 129 F.3d 1015, 1025 (8th Cir. 1997); Cane v. Worcester

County, 35 F.3d 921, 924 n.4, 925 (4th Cir. 1994); McNeil v.

Springfield Park Dist., 851 F.2d 937, 943-44 (7th Cir. 1988). On

the other hand, cases in which courts have recognized a section 2

claim by members of a small minority group simply because they

reside in a jurisdiction that employs a plurality election system

are nonexistent. Moreover, plurality election rules are, as my

colleagues apparently concede, more responsive to minority voters

than simple majority election rules. It would be ironic to relax

the first Gingles precondition for vote dilution claims arising

20 Given the widespread popularity of plurality election systems, the Supreme Court must certainly have taken their existence into account in formulating the Gingles preconditions. Cf. Voinovich, 507 U.S. at 157 (applying the Gingles preconditions without making any allowance for Ohio's use of a plurality voting system). I therefore see no reason why we should not adhere to the Supreme Court's rendition of the first Gingles precondition without engaging in rank speculation about the possibility of multiple candidacies.

-47- under an electoral structure already more favorable to minorities.

It also would make little sense, politically or mathematically, to

proclaim that a plurality rule supports a minority group's ability

to elect when its members number 26% of the electorate yet utterly

forecloses that ability when they number 21% of the electorate.

Last — but far from least — my colleagues' reliance on

the existence of a plurality election system ignores the

vicissitudes of such systems. For example, in elections in which

only two candidates are on the ballot or in which one of several

candidates enjoys great popularity, minorities will have to muster

a clear majority of all votes cast in order to elect the candidate

of their choice. The permutations are endless. To my mind, this

means that the putative effects of a plurality voting system are

simply too speculative to provide a basis for a convincing vote

dilution claim. See Brewer v. Ham, 876 F.2d 448, 455-56 (5th Cir.

1989); McNeil, 851 F.2d at 944. These problems may explain why the

appellants never made reference to Rhode Island's plurality

election laws in their amended complaint or their appellate briefs.

That ends this aspect of the matter. While I am willing

to leave open the possibility that a racial minority group

constituting less than 50% of the electorate in a particular

single-member district may in special circumstances satisfy the

-48- first Gingles precondition,21 the facts alleged in this case reflect

no such special circumstances. I conclude, therefore, that the

appellants' claim does not and cannot satisfy the first Gingles

If more were needed — and I doubt that it is — the

appellants' claim also fails to satisfy the third Gingles

precondition. That precondition requires a showing of nonminority

bloc voting (which, for purposes of this case, encompasses the

combined voting power of whites and Hispanics). Here, such a

showing is inconsistent with the theme around which the appellants'

case is constructed.

The appellants showcase Senator Walton's past electoral

successes as proof of the cogency of their ability to elect claim

— but this is a two-edged sword. Consistent electoral success on

the part of a racial or ethnic minority group that comprises

considerably less than a numerical majority of the electorate is

indicative of the absence of nonminority bloc voting and, thus, is

presumptively inconsistent with the third Gingles precondition.

21 Such a situation may occur, for example, where evidence of intentional vote dilution exists, e.g., Garza v. County of Los Angeles, 918 F.2d 763, 770-72 (9th Cir. 1990); Armour v. Ohio, 775 F. Supp. 1044, 1060-62 (N.D. Ohio 1991), or a minority group comprises nearly 50% of the population of a particular district, e.g., Martinez v. Bush, 234 F. Supp. 2d 1275, 1299 (S.D. Fla. 2002) (three-judge court) (per curiam), or the demographic trend lines are such that the affected minority group reasonably can be expected to attain majority status in the near future, e.g., Solomon v. Liberty County, 899 F.2d 1012, 1018 n.7 (11th Cir. 1990) (en banc) (Kravitch, J., specially concurring).

-49- See Gingles, 478 U.S. at 102 (O'Connor, J., concurring); see also

S. Christian Leadership Conf., 56 F.3d at 1291-94 (finding no white

bloc voting where African-Americans, though less than a numerical

majority, had been largely successful in electing their preferred

candidates); Overton v. City of Austin, 871 F.2d 529, 540 (5th Cir.

1989) (per curiam) (similar); see also Brooks v. Miller, 158 F.3d

1230, 1241 (11th Cir. 1998) (noting that claims dependent on

substantial white crossover voting are inherently inconsistent with

fulfillment of the third Gingles precondition); Turner v. Arkansas,

784 F. Supp. 553, 570-71 (E.D. Ark. 1991) (three-judge court)

(similar). This line of cases reflects a common-sense proposition:

that the ability of a racial minority group actually to elect its

preferred candidate may depend upon such a high degree of crossover

voting that the third Gingles precondition inevitably fails of

satisfaction. So it is here: the appellants' reliance on a high

level of crossover voting, ranging upward from a minimum of 32% and

nearly equalling the whole of the African-American vote,

defenestrates their claim of illegal vote dilution.22

22 The appellants' argument necessarily presupposes that this crossover voting peaks at a point below 37%. That is a purely arbitrary figure and, as such, need not be credited (even for purposes of a motion to dismiss). See, e.g., Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (warning that courts should be wary of "unsupported conclusions, subjective characterizations, and problematic suppositions" when reviewing dismissal orders under Rule 12(b)(6)).

-50- The appellants — and my colleagues — cite a few cases

suggesting (or so they say) that a high rate of crossover voting

does not necessarily preclude a finding of racially polarized

voting. See, e.g., Gingles, 478 U.S. at 59-61 (upholding lower

court's finding of white bloc voting despite white crossover voting

ranging from 8% to 50%); Campos v. City of Baytown, 840 F.2d 1240,

1249 (5th Cir. 1988) (upholding lower court's finding of white bloc

voting despite the fact that 3% to 37% of whites crossed over).

But all of these cases addressed multi-member or at-large districts

— situations that pose a much more subtle threat to minority

electoral strength precisely because they require higher levels of

crossover voting for minorities to prevail.23 See Growe, 507 U.S.

at 40; Cane, 35 F.3d at 926; see also S. Rep. No. 97-417, at 29

(1982), reprinted in 1982 U.S.C.C.A.N. 177, 206. In the realm of

challenges to single-member redistricting plans, no less an

authority than the Supreme Court has held average majority

crossover voting of 22% to 38% sufficient to demonstrate the

"general willingness of [majority] voters to vote for [minority]

23 The appellants do cite one case, Old Person v. Cooney, 230 F.3d 1113 (9th Cir. 2000), that involves single-member districts. There, the Ninth Circuit found white bloc voting because white voting in excess of 60% defeated minority candidates in most elections. Id. at 1124-27. That case was not decided based on the rate of crossover voting, but, rather, on the regularity with which the white majority had banded together to defeat minority candidates. See id. at 1127-28 (distinguishing Abrams v. Johnson, 521 U.S. 74, 92-93 (1997), on that very ground). For that reason, the Ninth Circuit never specified what rate of crossover voting actually existed.

-51- candidates," particularly in conjunction with a record of

significant success by minority candidates. Abrams v. Johnson, 521

U.S. 74, 92-93 (1997) (citation and internal quotation marks

omitted); cf. Voinovich, 507 U.S. at 151-52, 158 (approving lower

court's finding of no majority bloc voting where "black candidates

have been repeatedly elected from [single-member] districts with

only a 35% black population").

To be sure, the appellants asseverate that their past

victories occurred only because the "old" district (in which

African-Americans comprised approximately 26% of the population)

was different than the "new" district (in which African-Americans

comprise approximately 21% of the population). But this modest

change in the level of African-American penetration does not render

the voters' track record irrelevant. Whatever the precise numbers,

African-Americans were and are a numerical minority in the district

— and the appellants are in effect arguing that whenever crossover

voting is large enough to secure the success of a minority-

preferred candidate, that crossover voting cannot be used to

disprove nonminority bloc voting. Such a rule would conflict with

both the realities of modern politics and the objectives of section

2. The better rule is that when African-Americans constitute a

relatively small numerical minority yet repeatedly attract a

crossover vote sizable enough to elect their preferred candidate,

-52- that fact is highly relevant to (and, as here, may be conclusive

in) an analysis of the third Gingles precondition.

In a final effort to salvage the vote dilution claim, my

colleagues posit that we cannot make any determinations as to the

third Gingles precondition until we have evidence of voter

registration, turnout, and voting patterns. That might ordinarily

be true — but the appellants have not presented us with an ordinary

vote dilution claim. Rather, they make a very specific and highly

idiosyncratic claim premised on the notion that at least 32% of the

white and Hispanic population can be expected regularly to cross

over in order to form the majority required by the first Gingles

precondition. This approach inextricably intertwines the first and

third Gingles preconditions, so that allowances given as to one

necessarily have repercussions as to the other. See Sanchez v.

Colorado, 97 F.3d 1303, 1315 (10th Cir. 1996) (remarking the

interrelatedness of these preconditions); Jenkins, 4 F.3d at 1133

n.32 (same). That is one reason why this case cannot survive a

motion to dismiss.

Although "the degree of racial bloc voting that is

cognizable as an element of a § 2 vote dilution claim will vary

according to a variety of factual circumstances," Gingles, 478 U.S.

at 57-58, the touchstone of the third Gingles precondition is

whether the majority votes sufficiently as a bloc to enable it to

defeat the minority's preferred candidate most of the time. See

-53- id. at 56; Sanchez, 97 F.3d at 1319. Crossover voting in South

Providence enabled African-American voters regularly to elect the

candidate of their choice despite the relatively small African-

American constituency in the predecessor district. This is a

telling bit of political history. See Gingles, 478 U.S. at 56

(noting that the amount of nonminority bloc voting that is legally

significant varies in part with the size of the minority group

within the district); Rangel v. Morales, 8 F.3d 242, 245 (5th Cir.

1993) (same). It demonstrates to my satisfaction that no legally

cognizable anti-minority bloc voting exists here (and that,

therefore, the appellants have failed to meet the third Gingles

precondition).

I give the majority its due. In the ordinary course,

district courts should allow colorable vote dilution claims to

proceed beyond the Rule 12(b)(6) stage. And, moreover, if one is

willing to split an infinite number of hairs, it always will be

possible to conjure up remote scenarios that might be disinterred

during discovery (and, thus, prevent the entry of a motion to

dismiss). But Rule 12(b)(6) does not invite courts to engage in

such endless conjecture. See Garrett v. Tandy Corp., 295 F.3d 94,

105 (1st Cir. 2002) ("The method of Rule 12(b)(6) requires courts

. . . to resolve all realistic possibilities in the pleader's

favor." (emphasis supplied)). Some cases are sufficiently clear

that, on any rational view of the facts alleged, a vote dilution

-54- claim is insupportable. See Mixson v. Ohio, 193 F.3d 389, 399-400,

406-08 (6th Cir. 1999) (affirming dismissal of section 2 claim

under Rule 12(b)(6)); Mirrione v. Anderson, 717 F.2d 743, 746 (2d

Cir. 1983) (similar); Martinez v. Bush, 234 F. Supp. 2d 1275, 1280

n.7 (S.D. Fla. 2002) (three-judge court) (per curiam) (granting

defendants' Rule 12(b)(6) motion with respect to a section 2

claim). This is such a case: the allegations are unapologetic,

the key facts are essentially undisputed, and the amended complaint

stands or falls on the cogency of the appellants' avant-garde legal

theory. Like the district court, I find that theory unacceptable.

I add a coda. Reapportionment and redistricting are

thorny matters — and matters in which state legislatures are best

suited to lead. Within wide limits, courts ought to respect

legislative choices. See Voinovich, 507 U.S. at 156-57 (collecting

cases). I understand that respect is not equivalent to blind

allegiance, and if there were signs that the Rhode Island General

Assembly had acted in derogation of the Constitution or federal

law, I would not hesitate to support judicial intervention. But

such signs are lacking here, so respect counsels restraint.

Given the mixed racial and ethnic composition of South

Providence, the Rhode Island General Assembly was caught between a

rock and a hard place. It made a series of difficult choices, not

perfectly, but within the compass of its legal and constitutional

authority. Whether or not I would have drawn the lines of the

-55- affected district in the same manner is beside the point. What

matters is that the General Assembly's line-drawing is a product of

legitimate legislative choices made within allowable limits.

Accepting the appellants' vote dilution claim would nullify these

choices and give an unfair advantage to a particular subset of

voters — an advantage beyond any that Congress contemplated in

drafting the VRA. In the bargain, accepting the claim would shrink

the district-wide Hispanic population, thereby disadvantaging

another group of minority voters.

I have said my piece. Because the appellants fail to

allege the kind of impermissibly race-based distortion of electoral

opportunity that would sustain a claim under section 2 of the VRA,

I respectfully dissent.

-56-