Lewis v. Alamance County, N.C.

• Decision Date: 04 November 1996
• Docket Number: No. 95-2002,95-2002
• Parties: Ernestine LEWIS; Sylvester J. Lewis, Plaintiffs-Appellants, and Minnetta E. Hill, Plaintiff, v. ALAMANCE COUNTY, NORTH CAROLINA, including its Board of Commissioners and Board of Elections, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 600

99 F.3d 600

Ernestine LEWIS; Sylvester J. Lewis, Plaintiffs-Appellants, and Minnetta E. Hill, Plaintiff, v. ALAMANCE COUNTY, NORTH CAROLINA, including its Board of

Commissioners and Board of Elections, Defendant-Appellee.

No. 95-2002.

United States Court of Appeals, Fourth Circuit.

Argued March 5, 1996.

Decided Nov. 4, 1996.

ARGUED: Donnell Van Noppen, III, Patterson, Harkavy & Lawrence, Raleigh, NC, for Plaintiffs-Appellants. J. Michael Crowell, Tharrington, Smith, Raleigh, NC, for Defendant-Appellee. ON BRIEF: E. Hardy Lewis, Tharrington, Smith, Raleigh, NC; S.C. Kitchen, Alamance County Attorney, Graham, North Carolina, for Defendant-Appellee.

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the majority opinion, in which Chief Judge WILKINSON joined. Chief Judge WILKINSON wrote a concurring opinion. Judge MICHAEL wrote a dissenting opinion.

OPINION

LUTTIG, Circuit Judge:

Appellants Ernestine and Sylvester Lewis, black voters of appellee Alamance County, North Carolina, challenged the County's at-large method of electing county commissioners, arguing that black citizens have been denied an equal opportunity to elect representatives of their choice through vote dilution, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. The district court granted summary judgment for the County, holding that plaintiffs failed to demonstrate that minority-preferred candidates are usually defeated by white bloc voting, as required by Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). For the reasons that follow, we affirm.

I.

Alamance County is governed by a Board of Commissioners, the five members of which are elected, in at-large partisan elections, to four-year staggered terms. Voters are allowed to cast votes for as many candidates as there are vacant seats, but they cannot cast more than one vote for any one candidate. Since the 1965 passage of the Voting Rights Act, black candidates have run for seats on the Board in eight of fourteen election cycles. Only one black candidate, Jack O'Kelley, has been elected, although he was elected three times, in 1974 (after first being appointed to fill a vacancy), 1976, and 1980. Moreover, white candidates supported by a majority (often substantial) of black voters, either in the primary election, the general election, or both, have repeatedly won election. ¹

Section 2(a) of the Voting Rights Act of 1965 prohibits a State or its political subdivisions from imposing any voting practice "in a manner 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). Section 2(b) of the Act, as amended in 1982, further provides that a violation of § 2(a) occurs,

if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section 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.

42 U.S.C. § 1973(b) (emphasis added). ²

In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court interpreted the amended Voting Rights Act as it applied to a challenge to multi-member districts in which candidates were elected at large. Rejecting the claim that an at-large election scheme is per se violative of the Voting Rights Act, id. at 48, 106 S.Ct. at 2765, the Court established three preconditions to proving that such a voting system dilutes minority group voting strength sufficiently to violate the Act:

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.

478 U.S. at 50-51, 106 S.Ct. at 2766-67. If these preconditions are met, the court must then determine under the "totality of circumstances" whether there has been a violation of Section 2. See Johnson v. De Grandy, 512 U.S. 997, ----, 114 S.Ct. 2647, 2657, 129 L.Ed.2d 775 (1994); Collins v. City of Norfolk, Va., 816 F.2d 932, 938 (4th Cir.1987) ("Collins I") ("[The] ultimate determination [of vote dilution under the Voting Rights Act] still must be made on the basis of the 'totality of the circumstances.' ").

In an effort to meet Gingles ' second and third preconditions, plaintiffs' expert in this case conducted bivariate ecological regression analyses on the eleven primary and general elections in which a black candidate was on the ballot. Based on those regression analyses, the expert estimated the level of support among black voters for each candidate. ³ Plaintiffs then proffered the voter preference estimates as proof of both black voter cohesion (the second Gingles element) and white bloc voting sufficient to usually defeat black-preferred candidates (the third Gingles element). After reviewing the voter preference estimates from plaintiffs' expert on these selected elections, the district court held that plaintiffs had failed to provide evidence sufficient to satisfy the third Gingles element, because they had not shown that black-preferred candidates were usually defeated. Based upon the limited data before the court, this conclusion was fully supported even by plaintiffs' own expert witness, who admitted during his deposition that twenty of the thirty-one candidates "generally preferred" by black voters in the select number of elections he analyzed won election or nomination, thirteen of twenty-two "strongly preferred" candidates won election or nomination, and eleven of the seventeen "strongest preferred" candidates won election or nomination. If only the five general elections analyzed by plaintiffs' expert are considered, eight of the eleven candidates most strongly preferred by black voters were elected to seats on the Board.

Plaintiffs advance on appeal four arguments as to why the district court's conclusion was in error. We reject plaintiffs' claim that those white candidates who received overwhelming support from black voters in general elections, assertedly only because they were Democrats, should not have been considered as black-preferred candidates by the district court. And we also reject plaintiffs' argument that the district court erred in not discounting the repeated success of one of the minority-preferred candidates because of the alleged effects of incumbency. We agree with plaintiffs, however, that the district court improperly aggregated primary and general election results, and also that it failed to conduct an individualized determination into whether some candidates should be treated as black-preferred candidates. Additionally, we conclude that the district court erred in a third respect, by basing its decision exclusively on data from elections in which a black candidate was on the ballot, rather than on a more representative sample of elections. By limiting its consideration to elections in which a candidate of the minority's race was on the ballot, the district court may have failed to include as black-preferred candidates some white candidates who may very well have been the representatives of choice of the black community.

II.

Turning first to what we perceive to be the overarching error, we believe that, by considering only elections in which a black candidate was on the ballot, the district court failed to analyze a sufficient number of elections to enable it to determine whether white bloc voting usually operates to defeat minority-preferred candidates. As noted, the district court considered only election data from eleven of the twenty-eight primary and general elections held since passage of the Voting Rights Act--six of fourteen primary elections and only five of fourteen general elections. Although we recognize that this election data was the only data proffered by plaintiffs, we believe that, without a larger, more representative sample of elections, the district court simply did not have before it sufficient evidence to determine whether the black-preferred candidates usually were defeated, ⁴ unless one is willing to assume (which we are not) that the black community will never have a preferred candidate in an election in which no black candidate is on the ballot, or, more fundamentally, that a black voter can never prefer a candidate who is white.

Although the district court erred in this regard, we do not reverse its judgment because of this error, for it is the plaintiffs' burden to establish a violation of Section 2, and therefore their burden to proffer data from a sufficient number of elections to enable the district court to determine whether white bloc voting usually defeats minority-preferred candidates. Where, as here, plaintiffs fail to carry their burden to proffer sufficient evidence, and the district court correctly concludes on the basis of the proffered evidence that no Section 2 violation has been established, then the plaintiffs cannot be heard to complain.

A.

Section 2 of the Voting Rights Act prohibits the use of voting procedures, such as at-large elections, that afford minority voters less opportunity than other members of the electorate "to elect representatives of their choice," 42 U.S.C. § 1973(b) (emphasis added), or, in the language of Gingles, that afford minority voters less opportunity to elect minority-preferred candidates. Gingles, 478 U.S. at 51, 106 S.Ct. at 2766-67. The only possible interpretation of this unambiguous language is...