Vecinos de Barrio v. City of Holyoke
Case Date: 12/29/1995
Court: United States Court of Appeals
Docket No: 95-1581
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UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT _________________________ No. 95-1581 VECINOS DE BARRIO UNO, ET AL., Plaintiffs, Appellees, v. CITY OF HOLYOKE, Defendant, Appellant. _________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge] ___________________ _________________________ Before Selya, Cyr and Stahl, Circuit Judges. ______________ _________________________ 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. _________________________ December 29, 1995 _________________________ SELYA, Circuit Judge. In 1965, Congress enacted the SELYA, Circuit Judge. ______________ Voting Rights Act (the VRA), Pub. L. No. 89-110, 79 Stat. 437 (codified at 42 U.S.C. 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. 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. ____________________ 1The plaintiffs also challenged the way in which members of the school committee were elected. The district court repulsed that challenge, see Holyoke, 880 F. Supp. at 928, and the ___ _______ plaintiffs do not press the point on appeal. 2 I. BACKGROUND I. BACKGROUND 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 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). 3 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. II. STANDARD OF REVIEW II. STANDARD OF REVIEW 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 4 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 (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, 114 S. ________ _____ ______ Ct. 2779 (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 (quoting Bose Corp. v. Consumers Union, 466 U.S. 485, __________ _______________ 501 (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). III. PROVING VOTE DILUTION III. PROVING VOTE DILUTION 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. 5 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. 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. 1973(b). While the statutory scheme does not provide an assurance of success at the polls for minority candidates, see ___ Johnson v. De Grandy, 114 S. Ct. 2647, 2658 n.11 (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. 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 6 majority in a single-member district." Id. at 50.2 Second, ___ they must show that the group is "politically cohesive." Id. at ___ 51. 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, 113 S. Ct. 1075, 1084 (1993); Gingles, 478 U.S. at 50 ______ _______ 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 _______ _______________ ____________________ 2This precondition will have to be reconfigured to the extent that the courts eventually validate so-called influence dilution claims. See Voinovich v. Quilter, 113 S. Ct. 1149, ___ _________ _______ 1157-58 (1993) (discussing treatment of claims brought on behalf of persons who constitute a potentially influential bloc, but less than the majority, within the relevant electorate, and raising prospect that the first Gingles precondition may have to _______ be "modified or eliminated"). The lower courts are divided on the subject, compare Armour v. Ohio, 775 F. Supp. 1044, 1052 _______ ______ ____ (N.D. Ohio 1991) (three-judge panel) (recognizing influence dilution claim) with McNeil v. Springfield Park Dist., 851 F.2d ____ ______ ______________________ 937, 947 (7th Cir. 1988) (rejecting influence dilution claim), cert. denied, 490 U.S. 1031 (1989), and the Supreme Court has _____ ______ declined on four occasions to decide whether such claims are cognizable under VRA 2. See De Grandy, 114 S. Ct. at 2656; ___ __________ Voinovich, 113 S. Ct. at 1157-58; Growe v. Emison, 113 S. Ct. _________ _____ ______ 1075, 1084 n.5 (1993); Gingles, 478 U.S. at 46-47 n.12. We take _______ no view of the matter today (although we do discuss the potential relevance of evidence from elections in a particular "influence district" on the plaintiffs' claims, see infra Part V). ___ _____ 7 1012, 1018 (11th Cir. 1990), cert. denied, 498 U.S. 1023 (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, 478 U.S. at 51. The third Gingles precondition which _______ _______ embodies a showing that the majority votes sufficiently as a bloc to enable it, in the ordinary course, to trounce minority- preferred candidates most of the time, see Voinovich v. Quilter, ___ _________ _______ 113 S. Ct. 1149, 1157 (1993) addresses 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. See De Grandy, 114 S. Ct. at ___ __________ 2657; Gingles, 478 U.S. at 51. _______ Proof of all three preconditions creates an inference that members of the minority are in fact harmed by the challenged electoral practice, procedure, or structure. However, the inference is rebuttable. As a result, establishing the three Gingles preconditions is necessary, but not always in itself _______ sufficient, to ensure success on a section 2 claim. That is to say, because the inference of vote dilution can be rebutted by the force of other evidence, proof of the three preconditions, without more, will not invariably carry the day. See De Grandy, ___ _________ 114 S. Ct. at 2657. Put another way, the critical question in a vote dilution case is whether minority voters have an equal opportunity to participate in the electoral process. While the threshold elements catalogued by the Gingles Court shed _______ 8 considerable light on this inquiry, they do not comprise the only conceivable source of illumination. Completing the inquiry demands "comprehensive, not limited, canvassing of relevant facts." Id. ___ Consistent with this approach, courts must be careful not to wear blinders. The judge must sift the evidence produced at trial and gather enough information to paint a true picture of the attendant facts and circumstances. He or she must then make a realistic appraisal of what the picture discloses. See ___ Gingles, 478 U.S. at 45 (advocating achievement of a "practical _______ evaluation of the past and present reality" through a "functional view of the political process"). Some guidance can be found in a list of factors highlighted in the congressional report that accompanied the 1982 amendment to VRA 2, see S. Rep. No. 417, ___ 97th Cong., 2d Sess., at 28-29 (1982), reprinted in 1982 _________ __ U.S.C.C.A.N. 177, 206-07, but the judge should not stop there. Though helpful, the list is not all-encompassing. See Gingles, ___ _______ 478 U.S. at 45; Little Rock Sch. Dist. v. Pulaski County Special ______________________ ______________________ Sch. Dist., 56 F.3d 904, 910 (8th Cir. 1995). Since communities __________ differ, and elections play out differently in different venues at different times, the judge must make a case-specific determination, giving due weight to the idiosyncracies that bear upon the particular situation. See Jenkins, 4 F.3d at 1115. ___ _______ One road that we believe remains open to a court called upon to examine the totality of the circumstances in a vote dilution case is to mull other factors, apart from racial bias, 9 that may have caused the white bloc voting identified in the third Gingles precondition.3 While the Gingles Court split on _______ _______ this question, compare Gingles, 478 U.S. at 63-64 (opinion of _______ _______ Brennan, J.) (stating for four justices that the etiology of racially polarized voting is irrelevant under VRA 2) with id. ____ ___ at 100-02 (O'Connor, J., concurring in the judgment) (stating for four justices that the reasons why white voters reject minority candidates are relevant) and id. at 82-83 (White, J., concurring) ___ ___ (rejecting, without explanation, Justice Brennan's view), and controversy has raged since then, see, e.g., Nipper v. Smith, 39 ___ ____ ______ _____ F.3d 1494, 1513-14 (11th Cir. 1994) (en banc) (holding for two judges, with two judges dissenting, that the existence of racial bias in the community is relevant to a section 2 claim), cert. _____ denied, 115 S. Ct. 1795 (1995); League of United Latin Am. ______ _____________________________ Citizens, Council No, 4434 [LULAC] v. Clements, 999 F.2d 831, ____________________________ _____ ________ 850-63 (5th Cir. 1993) (en banc) (reaching similar conclusion, ____________________ 3We recognize that such widely used terms of art as "white bloc voting" and "racially polarized voting" may not always capture the subtleties of specific problems that arise in the political process. The case at bar, for example, involves the voting patterns of the majority (loosely termed "white") and the specific minority symbolized by the plaintiffs (loosely termed "Hispanics"). Concededly, this taxonomy is imprecise; for example, not all people who are considered "Hispanic" necessarily consider themselves "non-white." To that extent, then, the phrase "white bloc voting," though used repeatedly throughout the decided cases, may be somewhat inaccurate or even slightly misleading. Similarly, VRA 2 applies to denials of the right to vote on account of either race or color, yet the opinions harp ______ on the phrase "racially polarized voting." To that extent, the idiom of the case law may neglect potentially important distinctions between the concepts of "race" and "color." While acknowledging these limitations, we can think of no universal solution, and, thus, take refuge in the pat terminology. 10 with three judges dissenting), cert. denied, 114 S. Ct. 878 _____ ______ (1994), we are of the view that De Grandy has removed much of the _________ doubt. Even when the Gingles preconditions coalesce and _______ thereby create an inference of discrimination, lack of equal electoral opportunity remains the central focus of the inquiry. Furthermore, that question "must still be addressed explicitly, and without isolating any other arguably relevant facts from the act of judgment." De Grandy, 114 S. Ct. at 2657. It seems self- _________ evident that the presence or absence of bias is at least "arguably relevant" to the question of whether a minority lacks equal electoral opportunity. After all, a minority group's prospects for electoral success in a community riven along racial lines differ significantly from its prospects in a more unified community. We agree with the Fifth Circuit that "[a] tendency among whites to cast their votes on the basis of race presents a far more durable obstacle to the coalition-building upon which minority electoral success depends than disagreements over ideology." LULAC, 999 F.2d at 858. _____ By like token, however, sentiments unrelated to race also can be powerful stimuli. When it can be shown that, in a particular community, voters are moved primarily by causes unrelated to race, it is reasonable to assume that a minority- preferred candidate who embodies these values might equally be able to engender majoritarian (white) support. See Gingles, 478 ___ _______ U.S. at 100-01 (O'Connor, J., concurring). Thus: 11 Evidence that a candidate preferred by the minority group in a particular election was rejected by white voters for reasons other than those which made that candidate the preferred choice of the minority group would seem clearly relevant in answering the question whether bloc voting by white voters will consistently defeat minority candidates. Id. at 100. ___ The upshot is that when racial antagonism is not the cause of an electoral defeat suffered by a minority candidate, the defeat does not prove a lack of electoral opportunity but a lack of whatever else it takes to be successful in politics (say, failure to support popular programmatic initiatives, or failure to reflect the majority's ideological viewpoints, or failure to appreciate the popularity of an incumbent). Section 2 does not bridge that gap nor should it. See De Grandy, 114 S. Ct. at ___ _________ 2658 n.11; see also Baird v. Consolidated City of Indianapolis, ___ ____ _____ __________________________________ 976 F.2d 357, 361 (7th Cir. 1992) (explaining that section 2 "is a balm for racial minorities, not political ones even though the two often coincide"), cert. denied, 113 S. Ct. 2334 (1993). _____ ______ We believe it follows that, after De Grandy, plaintiffs cannot __________ prevail on a VRA 2 claim if there is significantly probative evidence that whites voted as a bloc for reasons wholly unrelated to racial animus. We so hold. This holding draws sustenance from the language of section 2 itself, particularly the statute's prohibition of electoral structures that result in a denial or abridgement of the right to vote "on account of race or color." 42 U.S.C. 1973(a). Other courts have found this language determinative of 12 the question, see, e.g., Nipper, 39 F.3d at 1515-17; LULAC, 999 ___ ____ ______ _____ F.2d at 850, especially when coupled with legislative history indicating that an electoral scheme violates VRA 2 only when it "interacts with racial bias in the community and allows that bias to dilute the voting strength of the minority group." Nipper, 39 ______ F.2d at 1520 (commenting upon legislative history). Those including the present plaintiffs who favor a more single-minded interpretation of section 2 marshal a regiment of counterarguments. Their most serious objection questions the compatibility of our holding with Congress's action in amending section 2 to scrap the "intent" test imposed by City of Mobile v. ______________ Bolden, 446 U.S. 55, 62 (1980), and to insert in its place the ______ "results" test earlier adumbrated in White v. Regester, 412 U.S. _____ ________ 755, 765-66 (1973), and Whitcomb v. Chavis, 403 U.S. 124, 143 ________ ______ (1971). This substitution permits plaintiffs to show vote dilution by proving that electoral structures "result[] 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), and, concomitantly, relieves them of the burden of proving that the structures were set in place to advance a racially discrimination purpose. Against this mise-en-scene, some have _____________ equated Congress's adoption of the "results" test with an intention to foreclose any inquiry whatever into the reasons why minority groups lack opportunities for electoral participation. We do not believe that the 1982 amendment lends itself to this restrictive conclusion. The now-discarded "intent" test 13 specifically required plaintiffs to prove that government created or maintained the challenged electoral structure with a discriminatory purpose, actually intending that a structure would disadvantage minority voters. See Mobile, 446 U.S. at 62-63. In ___ ______ enacting the amendment, Congress shifted the law's focus: plaintiffs no longer have to prove discriminatory intent but instead have to carry the burden of proving that the challenged electoral structure results in a denial of equal opportunity on account of race. Properly conceived, the results test protects racial minorities against a stacked deck but does not guarantee that they will be dealt a winning hand. Whitcomb an opinion ________ purportedly codified in the 1982 amendment illustrates the point. There, the Court discerned no denial of equal opportunity when a minority group's failure to elect its preferred candidates "emerges more as a function of losing elections than of built-in bias" directed by the establishment majority against the minority group. Whitcomb, 403 U.S. at 153. The lesson to be learned is ________ that, even when election returns in effect short-circuit a minority group's voting power, the electoral structure is not illegal if the defeat represents nothing more than the routine operation of political factors. See id. In other words, even ___ ___ under the 1982 amendment, a lack of electoral success unrelated _________ to race is not a proxy for a lack of opportunity to succeed. __ ____ Hence, VRA 2, as amended, despite its focus on results, does not require courts to ignore evidence that factors other than 14 race are the real obstacles to the political success of a minority group. See Gingles, 478 U.S. at 101 (O'Connor, J., ___ _______ concurring) ("The overall vote dilution inquiry neither requires nor permits an arbitrary rule against consideration of all evidence concerning voting preferences other than statistical evidence of racial voting patterns."). We recognize, of course, that permitting inquiry into the causes of white bloc voting potentially jeopardizes the remedial purposes of the VRA in the sense that it may make proof of vote dilution more difficult. Courts have expressed concern on this score, see, e.g., id. at 72 (opinion of Brennan, J.); ___ ____ ___ LULAC, 999 F.2d at 860, and these concerns are not without _____ foundation. Yet, two responses spring to mind. First, the VRA is designed to ensure that the electoral process is fair and the opportunities for access to it are equal. Forcing courts to turn a blind eye to other causes of majoritarian bloc voting serves neither of these ends, but, rather, facilitates a back-door approach to proportional representation. That is not a door through which Congress desired courts to pass. See 42 U.S.C. ___ 1973(b) (stating that nothing in the VRA "establishes a right to have members of a protected class elected in numbers equal to their proportion in the population"). Second, we suspect that at bottom the skeptics misapprehend the nature of the showing needed to support a section 2 claim. As amended, the statute allows plaintiffs to establish a prima facie case of vote dilution by proving the 15 three Gingles preconditions. The second and third preconditions _______ are designed to assay whether racial cleavages in voting patterns exist and, if so, whether those cleavages are deep enough to defeat minority-preferred candidates time and again. If proven, these preconditions give rise to an inference that racial bias is operating through the medium of the targeted electoral structure to impair minority political opportunities. See De Grandy, 114 ___ __________ S. Ct. at 2657 (noting that a "lack of equal electoral opportunity may be readily imagined and unsurprising when demonstrated under circumstances that include the three essential Gingles factors"); Nipper, 39 F.3d at 1525 (stating that "proof _______ ______ of the second and third Gingles factors will ordinarily create a _______ sufficient inference that racial bias is at work"); United States _____________ v. Marengo County Comm'n, 731 F.2d 1546, 1567 (11th Cir.) _______________________ (stating that the second and third Gingles preconditions remain _______ the "surest indication of race-conscious politics"), cert. _____ denied, 469 U.S. 976 (1984). ______ The resultant inference is not immutable, but it is strong; it will endure unless and until the defendant adduces ______ ___ _____ credible evidence tending to prove that detected voting patterns can most logically be explained by factors unconnected to the intersection of race with the electoral system.4 See Nipper, 39 ___ ______ F.3d at 1524. It is only when such evidence possesses convictive ____________________ 4Such factors might include, for example, organizational disarray, lack of funds, want of campaign experience, the unattractiveness of particular candidates, or the universal popularity of an opponent. 16 force that the inference of racial animus will be called into serious question. See De Grandy, 114 S. Ct. at 2658. ___ _________ Even if such proof is forthcoming, the defendant does not automatically triumph. Instead, the court must determine whether, based on the totality of the circumstances (including the original inference and the factual predicate that undergirds it), the plaintiffs have proven that the minority group was denied meaningful access to the political system on account of race. The burden of proof at all times remains with the plaintiffs; defendant's burden is an entry-level burden of production. Thus, once the defendant proffers enough evidence to raise a legitimate question in regard to whether nonracial factors adequately explain racial voting patterns, the ultimate burden of persuading the factfinder that the voting patterns were engendered by race rests with the plaintiffs. Despite the allocation of the burden of proof, this framework imposes a high hurdle for those who seek to defend the existing system despite meaningful statistical evidence that suggests bloc voting along racial lines.5 See Jenkins, 4 F.3d ___ _______ ____________________ 5The proceedings below illustrate this point. The district court acknowledged but did not accept the City's attribution of the Hispanic community's lack of electoral success to "factors other than the at-large system itself, including voter apathy, unattractive candidates, poor campaign organizations and the like all evidenced by low voter turnout." Holyoke, 880 F. Supp. at _______ 926. The court seemingly rejected the City's alternative explanations as a matter of fact. See id. (concluding that, ___ ___ based on the overall evidence, an Hispanic candidate, "no matter how attractive and no matter how effective at bringing out the Hispanic vote, [would not have had] a fair opportunity to win any at-large election in Holyoke during this period"). Having used this illustration, we hasten to add that, on remand, the court is 17 at 1135. We predict that cases will be rare in which plaintiffs establish the Gingles preconditions yet fail on a section 2 claim _______ because other facts undermine the original inference. In this regard, we emphasize that establishing vote dilution does not require the plaintiffs affirmatively to disprove every other possible explanation for racially polarized voting. Rather, plaintiffs must simply prove that the three threshold preconditions (alone or in combination with the totality of the circumstances) are strong enough in a given case that, notwithstanding the countervailing evidence of other causative agents mustered by the defendant, the record sustains a claim that racial politics specifically, the interaction of race and the electoral system have resulted in significantly diminished opportunities for minority participation in elective government. IV. THE ASSIGNMENTS OF ERROR IV. THE ASSIGNMENTS OF ERROR Having cemented into place the general framework for evaluating vote dilution claims, we shine the light of our gleaned understanding on the City's objections to the decision below. We divide our discussion into four segments. A. The Analytic Model. A. The Analytic Model. __________________ In this case, the district court analyzed fifteen different races in six different election years spanning a ten- year period from 1983 through 1993. Taking this evidence as an undifferentiated whole, the court found a pattern of racially ____________________ free to revisit the evidence and reconsider all its findings, including those that touch upon other possible causes of racially polarized voting. 18 polarized voting sufficient to support the plaintiffs' prayer for relief. The City assigns error, positing that racially polarized voting cannot be deduced from an overview which blends data from a series of separate elections, some suspect and some unexceptionable. The City's point is that only evidence from "legally significant" elections can be relevant to, or can underbrace, a finding that VRA 2 has been abridged. Warming to this theme, the City asserts that each of the three Gingles _______ preconditions must be shown to exist vis-a-vis a particular _________ election before a court may mull what transpired at that election as a link in the evidentiary chain that leads to a determination of vote dilution. If this approach were adopted, the court below, in considering whether the plaintiffs had established a pattern of racially polarized voting over the years, could not have relied upon evidence drawn from any discrete election unless the plaintiffs first proved a violation of the VRA in regard to that election.6 We reject the City's approach. In this enlightened day and age, bigots rarely advertise an intention to engage in race-conscious politics. Not surprisingly, therefore, racially polarized voting tends to be a silent, shadowy thief of the minority's rights. Where such ____________________ 6To give concrete examples, Holyoke contends that in 1983 Hispanics did not constitute a sufficiently compact group to satisfy the first Gingles precondition, thus rendering any _______ evidence of white bloc voting in that year legally irrelevant. In the same vein, the City insists that the district court should have ignored evidence of racially polarized voting in any elections won by minority candidates or in which Hispanics did not sufficiently cohere. 19 activity is detected at all, the process of detection typically involves resort to a multifaceted array of evidence including demographics, election results, voting patterns, campaign conduct, and the like. Usually, such evidence is not neatly packaged but must be pieced together bit by bit from data accumulated in a series of elections. See Gingles, 478 U.S. at ___ _______ 57; Jenkins, 4 F.3d at 1119; Gomez v. City of Watsonville, 863 _______ _____ ____________________ F.2d 1407, 1417 (9th Cir. 1988), cert. denied, 489 U.S. 1080 _____ ______ (1989); City of Carrollton Branch of NAACP v. Stallings, 829 F.2d __________________________________ _________ 1547, 1557 (11th Cir. 1987), cert. denied, 485 U.S. 936 (1988). _____ ______ Thus, the question whether a given electoral district experiences racially polarized voting to a legally significant extent demands a series of discrete inquiries not only into election results but also into minority and white voting practices over time. We think that this analysis exposes the principal flaw in Holyoke's thesis. The requirement of "legal significance" is not a barometer for deciding what evidence of racially polarized voting may be considered; rather, it is the benchmark against which all the evidence, taken in sum, must be measured. And although weaknesses in plot lines siphoned from individual elections may well imperil an overall conclusion of legally significant racially polarized voting the whole is frequently not greater than the sum of the parts such weaknesses do not render evidence from those elections inadmissible. It follows that reliance on such evidence does not necessarily invalidate an overall conclusion that unlawful vote dilution exists. See ___ 20 Gingles, 478 U.S. at 57 (explaining that "in a district where _______ elections are shown usually to be polarized, the fact that racially polarized voting is not present in one or a few individual elections does not necessarily negate the conclusion that the district experiences legally significant bloc voting"). This paradigm is fully consistent with the reality of events. One swallow does not a summer make, and the results of a single election are unlikely, without more, to prove the existence or nonexistence of embedded racial cleavages. Thus, race-conscious politics (or its absence, for that matter) can more readily be seen by producing a documentary that spans a series of elections than by taking an isolated snapshot of a single election. After all, to be legally significant, racially polarized voting in a specific community must be such that, over a period of years, whites vote sufficiently as a bloc to defeat minority candidates most of the time. See id. at 56. In order ___ ___ reliably to tell whether racial groups do (or do not) band together behind particular candidates with regularity, all elections in the relevant time frame (or, at least, a representative sampling of them) must be studied not just those elections that, taken in isolation, reveal the cicatrices of racially polarized voting. On this basis, we reject the City's contention that the failure to prove any one Gingles precondition in any one election _______ eliminates that election from judicial consideration. The preconditions are necessary to prove an overall conclusion of 21 vote dilution, not to demonstrate the relevance vel non of ___ ___ particular morsels of evidence. Hence, the court below had every right to analyze all the elections (suspect and non-suspect) in its effort to ascertain both whether (1) the Hispanic community usually coheres behind particular candidates, and (2) Holyoke's white citizens usually vote against Hispanic-preferred candidates in sufficient numbers to prevent their election. B. Compactness. B. Compactness. ___________ Holyoke's city council model seven ward seats and eight at-large seats dates back more than three decades (to an era when few persons of Hispanic descent dwelt in the municipality). Currently, the Hispanic community effectively controls two of the fifteen city council seats (Wards 1 and 2). In addition, Hispanics constitute about 28% of the voting age population in Ward 4. Based on these population statistics, the City strives to persuade us that the plaintiffs cannot satisfy the Gingles preconditions because Hispanics, as a group, are _______ insufficiently compact to constitute the majority in a third ward. We are unconvinced for two reasons. First, the City failed to make this claim in its brief, asserting it for the first time at oral argument. Thinking on one's feet is a useful tool of appellate advocacy only if the thinker has a suitable foothold in the record. Here, the thought was too little too late. See United States v. Gertner, 65 F.3d ___ _____________ _______ 963, 971 n.7 (1st Cir. 1995) (refusing to entertain an argument not raised in the government's appellate brief); see also Fed. R. ___ ____ 22 App. P. 28(a). In all events, the City's spur-of-the-moment retort is founded on a faulty premise. It assumes that the relevant benchmarks for matching the Hispanic population and its opportunity for access are the seven single-member wards. This assumption is faulty because the litigation challenges Holyoke's electoral system as a whole, and, to the extent the challenge is scissile, its cynosure is not the wards but the system's at-large component a component that allegedly dilutes the plaintiffs' opportunity for full political participation in municipal affairs. Refined to bare essence, the plaintiffs' theory is that, because of the combined impact of the at-large electoral structure and an incipient pattern of racially polarized voting, Hispanics can only hope to elect candidates to two of the fifteen city council seats (i.e., about 14% of the seats) even though they comprise at least 22% of Holyoke's total population. Thus, the City's emphasis on the seven wards misses the point. This does not mean that the wards are an irrelevancy. A successful vote dilution challenge "must find a reasonable alternative practice as a benchmark against which to measure the existing voting practice." Holder v. Hall, 114 S. Ct. 2581, 2585 ______ ____ (1994). In that sense, the single-member districts are relevant to an assessment of the system's at-large component. While it may be theoretically possible to analogize the plaintiffs' claim to a challenge addressed to a multimember at-large district in which case the court would have to compare Hispanic opportunities 23 to elect candidates to one of the eight undifferentiated at-large seats to the potential opportunities that might exist if the multimember district were divided into eight contiguous single- member districts, see, e.g., id. at 2589 (O'Connor, J., ___ ____ ___ concurring) ("In a challenge to a multimember at-large system . . . a court may compare it to a system of multiple single-member districts.") the analogy cannot be carried past its logical limits. Here, the analogy would be imperfect because the plaintiffs' challenge is addressed to Holyoke's electoral system as a whole. Accordingly, the district court had an obligation to consider whether that system not just its at-large component provides minorities with an equal opportunity to elect candidates of their choice. See Baird, 976 F.2d at 360; NAACP v. City of ___ _____ _____ _______ Columbia, 850 F. Supp. 404, 429 (D.S.C. 1993), aff'd, 33 F.3d 52 ________ _____ (4th Cir. 1994), cert. denied, 115 S. Ct. 1095 (1995). _____ ______ Bearing this in mind, we think that the lower court constructed a reasonable benchmark by comparing current Hispanic opportunities to potential opportunities that would exist if the municipality were divided into fifteen single-member councilmanic districts. And since we find no clear error in the court's conclusion that, under its projected set of circumstances, Hispanics would constitute a majority of the votes in at least three of fifteen reconstituted wards, we cannot set aside its finding that Hispanics are a sufficiently compact group. C. Low Voter Turnout. C. Low Voter Turnout. _________________ The City also asserts that, given the consistently low 24 turnout among Holyoke's Hispanic voters, see Holyoke, 880 F. ___ _______ Supp. at 925 ("Hispanic turnout rates in |