72 F.3d 973 (1st Cir. 1995), 95-1581, Uno v. City of Holyoke

Docket Nº:95-1581.
Citation:72 F.3d 973
Party Name:Vecinos De Barrio UNO, et al., Plaintiffs, Appellees, v. CITY OF HOLYOKE, Defendant, Appellant.
Case Date:December 29, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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72 F.3d 973 (1st Cir. 1995)

Vecinos De Barrio UNO, et al., Plaintiffs, Appellees,


CITY OF HOLYOKE, Defendant, Appellant.

No. 95-1581.

United States Court of Appeals, First Circuit

December 29, 1995

Heard Aug. 2, 1995.

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Steven P. Perlmutter, with whom Michael D. Lurie, Robinson & Cole, and Edward R. Mitnick, Acting City Solicitor, were on brief, for appellant.

Daniel J. Gleason, with whom Nelson G. Apjohn, Nutter, McClennen & Fish, Alan J. Rom, Law Office of Sherwin Kantrovitz, P.C., David P. Hoose, and Katz, Sasson, Hoose & Turnbull, were on brief, for appellees.

SELYA, CYR and STAHL, Circuit Judges.

SELYA, Circuit Judge.

In 1965, Congress enacted the Voting Rights Act (the VRA), Pub.L. No. 89-110, 79 Stat. 437 (codified at 42 U.S.C. Secs. 1973-1973o). Three decades later, the legislation remains a Serbonian bog in which plaintiffs and defendants, pundits and policymakers, judges and justices find themselves bemired.

The case before us opens yet another window on the conceptual complexity that has engulfed the VRA. It arises against the backdrop of the biennial elections that are held for city council in Holyoke, Massachusetts. The plaintiffs, two nonprofit organizations with ties to the Hispanic community and eight voters of Hispanic descent, complain that the electoral structure violates section 2 of the VRA by denying Hispanics equal opportunity to "participate in the political process and to elect representatives of their choice." 42 U.S.C. Sec. 1973(b). The district court found merit in the plaintiffs' complaint with regard to councilmanic elections and granted relief. See Vecinos De Barrio Uno v. City of Holyoke, 880 F.Supp. 911 (D.Mass.1995). 1 After careful consideration of a bulky record, we are unable to square the lower court's factual findings with its ultimate conclusion of vote dilution. Consequently, we vacate the judgment and remand for further proceedings.


We sketch the background, reserving a more exegetic treatment of the facts pending our discussion of specific issues. We refer those readers who yearn for an immediate

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rush of details to the district court's informative opinion. See id. at 917-25.

Since 1963, the Holyoke city council has been composed of fifteen members, eight elected at large and seven elected by ward. Candidates run without party labels for two-year terms. Each voter is entitled to cast a ballot for a candidate in his or her ward, and to vote for up to eight at-large candidates.

The Hispanic community in Holyoke has grown dramatically over the past two decades. By 1990, persons of Hispanic origin accounted for 31.06% of the total population (compared to 13.8% in 1980). Under the current districting scheme--the ward lines were last redrawn in 1992--Hispanic voters comprise a clear majority in two wards and account for nearly one-third of the population in a third ward. Yet, while Hispanic-preferred city council candidates have prevailed in the two "Hispanic majority" wards, no person of Hispanic descent ever has been elected to an at-large seat. This discrepancy crystallizes into the nub of the plaintiffs' case: their vote dilution claim is that, while Hispanics now constitute 21.89% of Holyoke's voting age population, the electoral structure limits the Hispanic community's ability to elect the candidates its members prefer to only 14% of the available city council seats (two of fifteen).

The district court agreed with the plaintiffs that the Hispanic vote had been impermissibly diluted. See id. at 925-27. To remedy the perceived inequity, the court by separate order left the ward lines and representation intact, but cut back the number of at-large seats from eight to two (thus shrinking the council from fifteen to nine members, and making its electoral structure congruent with that of the school committee). See Vecinos de Barrio Uno v. City of Holyoke, 882 F.Supp. 9, 10 (D.Mass.1995) (Holyoke II ). The court reasoned that, under the revised format, Hispanics probably would continue to control two of the ward seats, and that decreasing the size of the council would boost Hispanics' percentage representation to a level that would compare favorably with their percentage of the voting age population as a whole. See id. at 12.

The district court, striving to put its remedial order in place in time for the November 1995 municipal election cycle, see id. at 13, entered the order under pressure of time. The city appealed and simultaneously moved for a stay. By an unpublished order, we expedited the appeal and granted the stay. Hence, the November 1995 elections were held under the preexisting scheme.


The bedrock on which the district court's opinion rests is its conclusion that the at-large component of the electoral structure unlawfully dilutes the Hispanic community's voting power. As a general matter, a finding of vote dilution made after a bench trial is a finding of fact subject to review under the "clearly erroneous" rubric. See Thornburg v. Gingles, 478 U.S. 30, 78-79, 106 S.Ct. 2752, 2780-81, 92 L.Ed.2d 25 (1986); Houston v. Lafayette County, 56 F.3d 606, 610 (5th Cir.1995); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1116 (3d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2779, 129 L.Ed.2d 891 (1994); see also Fed.R.Civ.P. 52(a). This means that a reviewing court ought not to disturb such a finding "unless, on the whole of the record, [the court] form[s] a strong, unyielding belief that a mistake has been made." Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.1990).

Though the clear error standard is formidable, it is not a juggernaut that crushes everything in its path. One important qualification is that the jurisprudence of clear error "does not inhibit an appellate court's power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law." Gingles, 478 U.S. at 106, 106 S.Ct. at 2795 (quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 501, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)); accord LoVuolo v. Gunning, 925 F.2d 22, 25 (1st Cir.1991). Considering asserted errors of law entails nondeferential review. See In re Extradition of Howard, 996 F.2d 1320, 1327 (1st Cir.1993).

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In order to sharpen the focus of our inquiry, we first limn the statutory framework and elucidate the requirements that attend a proper showing of vote dilution.

Section 2 of the VRA, as amended in 1982, prohibits any 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. Sec. 1973(a). A denial or abridgement of the right to vote is established when,

based on the totality of circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by all members of a [protected] class of citizens ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office ... is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C. Sec. 1973(b). While the statutory scheme does not provide an assurance of success at the polls for minority candidates, see Johnson v. De Grandy, --- U.S. ----, ---- n. 11, 114 S.Ct. 2647, 2658 n. 11, 129 L.Ed.2d 775 (1994), it does provide an assurance of fairness. Thus, when "a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives," a section 2 claim lies. Gingles, 478 U.S. at 47, 106 S.Ct. at 2764-65.

The platform required to launch a vote dilution claim must contain three interleaved planks. First, the plaintiffs must prove that they are part of a minority group that is "sufficiently large and geographically compact to constitute a majority in a single-member district." Id. at 50, 106 S.Ct. at 2766. 2 Second, they must show that the group is "politically cohesive." Id. at 51, 106 S.Ct. at 2766-67. Third, they must demonstrate significant bloc voting by non-minorities. See id. Each of these showings must be specific to the electoral unit that is under fire.

The first two Gingles preconditions look to whether, putting the challenged practice, procedure, or structure to one side, minority voters within a given constituency have the potential to elect representatives of their choice. See Growe v. Emison, 507 U.S. 25, 39-41, 113 S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993); Gingles, 478 U.S. at 50 n. 17, 106 S.Ct. at 2766 n. 17. If, for example, minority voters in an at-large system are so widely dispersed that they could not elect preferred candidates under some reasonable alternative scheme, then the "at-large system cannot be responsible for that group's inability to elect its candidates." Solomon v. Liberty County, 899 F.2d 1012, 1018 (11th Cir.1990), cert. denied, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991). Similarly, unless the minority group is politically cohesive, "it cannot be said that the selection of a [particular] electoral structure thwarts distinctive minority group interests." Gingles, ...

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