(W.D. Tenn. 1995), aff'd, 116 S. Ct. 42 (1995).
The Supreme Court has declined on four occasions explicitly to decide whether an influence dilution claim is cognizable under VRA § 2. See De Grandy, 512 U.S. at 1009, 114 S. Ct. at 2656; Voinovich, 507 U.S. at 158, 113 S. Ct. at 1157-58; Growe, 507 U.S. 25, 113 S. Ct. 1075, 1084, n. 5, 122 L. Ed. 2d 388 (1993); Gingles, 478 U.S. at 56-47, n. 12, 106 S. Ct. at 2764, n. 12. The Seventh Circuit, however, has rejected the claim that the failure to create an influence district can be a basis for a claim under Section 2. McNeill, 851 F.2d at 947. Courts in this district have generally refused to recognize influence districts because of the extent to which "influence dilution claims" would broaden the scope of Section 2 and would require a complete reappraisal of the Gingles analytical framework. Illinois Legislative Redistricting Committee v. LaPaille, 786 F. Supp. 704, 715 (N.D. Ill. 1992); Hastert, 777 F. Supp. at 651. Courts could well be flooded by marginal claims if plaintiffs needed only to show that their ability to influence elections has been weakened -- the requirement that a minority group be large enough to control a district, not merely influence it, enables courts to adjudicate VRA claims with a modicum of consistency. LaPaille, 786 F. Supp. at 715. It is also extremely difficult to make any sort of objective, non-speculative assessment of the ability of a particular community to "swing" an election; while political consultants may feel comfortable making such guesses, such speculative assessments are far beyond the expertise of most courts. Id.
The judicial review of districting decisions under VRA § 2 is not intended to require judicial supervision of every map drawing choice. The entertaining of influence district claims would force courts to intrude further into an area best left to legislative discretion by requiring courts to scrutinize the legitimacy of district boundaries even where it is impossible to create a district in which minorities would constitute a majority. This Court can see no justification for going beyond the requirements of VRA § 2 and the analytical framework of Gingles in order to entertain a claim alleging that the City failed to create an adequate influence district on the southeast side.
The discussion of influence districts cannot end, however, with the absence of a cause of action for influence dilution under the Voting Rights Act. De... Grandy's discussion of the obligation of minority voters to "pull, haul, and trade, to find common political ground...the virtue of which is not to be slighted in applying a statute meant the waning of racism in American politics," appears to recognize the relevance of influence districts, not as a basis for a VRA § 2 cause of action, but as a factor in considering the totality of the circumstances surrounding minority voters' ability to participate in the political process. See De Grandy, 512 U.S. at 1020, 114 S. Ct. at 2661. In this context, the relevant question is not whether the VRA requires the creation of influence districts, but whether the voluntary creation of influence districts should be counted as a factor weighing against finding a Section 2 violation. McWherter, 877 F. Supp. at 1102. This consideration must be undertaken cautiously, however, since the creation of influence districts could well be a subtle form of fracturing. Since De Grandy requires a searching analysis of the totality of the circumstances concerning the ability of minority members to participate in the political process, the extent to which minority voters can exert influence in districts which are not majority-minority districts should be included in the calculus. See Id. Voters in districts in which they constitute a sizeable, possibly decisive, portion of the population have the opportunity to elect candidates of their choice, even if they do not have the opportunity to elect their ideal candidate.
4. Gingles Test
The Supreme Court first interpreted the amended Section 2 in a case involving a challenge to a multi-member at-large districting scheme instituted by the North Carolina legislature. Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25. The Gingles Court held that three threshold conditions must be established by plaintiffs in order to prevail on a Voting Rights Act § 2 claim:
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 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-in the absence of special circumstances,...-usually to defeat the minority's preferred candidate.
Gingles, 478 U.S. at 50-51, 106 S. Ct. at 2766. The Supreme Court subsequently applied, without modification, the Gingles test to claims alleging vote dilution in connection with single-member districts. Growe, 507 U.S. at 37-42, 113 S. Ct. at 1084; Voinovich, 507 U.S. at 157, 113 S. Ct. 1149, 1157. While the Gingles preconditions were applied without modification in the single-member district context, in Voinovich the Court stated that the Gingles factors ought not to be applied mechanically but must be considered in the light of the specific dilution claim being made. Voinovich, 507 U.S. at 158, 113 S. Ct. at 1157. The application of the Gingles test, originally designed for at-large districting schemes, to a multi-district single-member districting scheme requires significant gymnastics on the part of a reviewing court. A test more closely tailored to the relevant districting scheme would likely ameliorate the present complexity and confusion of voting rights jurisprudence. In De Grandy, the Court recognized that in the context of partial-dilution claims in single-member districts, a court may not rest uncritically on assumptions about the force of the three Gingles factors. De Grandy, 512 U.S. at 1013, 114 S. Ct. at 2658.
In order to prevail on a VRA § 2 claim, plaintiffs must first establish each of the three preconditions by a preponderance of the evidence. Gingles, 478 U.S. at 50, 106 S. Ct. at 2766.
The first two Gingles preconditions ask whether minority voters within a constituency have the potential to elect representatives of their choice. Growe, 507 U.S. at 39-41, 113 S. Ct. at 1084; UNO v. City of Holyoke, 72 F.3d at 979. In essence, these two preconditions ask the trial court to anticipate whether it can fashion a remedy for a violation of Section 2 of the Act. Nipper v. Smith, 39 F.3d 1494, 1511 (11th Cir. 1994)(en banc), cert. denied, 514 U.S. 1083, 131 L. Ed. 2d 723, 115 S. Ct. 1795 (1995). There can be no § 2 violation, or potential remedy, for a group that lacks the population, or geographical compactness, or political cohesiveness to benefit from the drawing of an additional single-member district. McNeill, 851 F.2d at 942. It is important, however, to keep in mind that when considering the feasibility of various alternative maps the maximization of minority districts can never be the touchstone of Section 2. De Grandy, 512 U.S. at 1016, 114 S. Ct. at 2659.
Since Gingles propounded a functional evaluation of whether the minority population is large enough to form an additional district, courts have been flexible in assessing the showing made for this precondition. Plaintiffs' proposed districts are not cast in stone, they are merely presented in order to demonstrate that additional minority districts are feasible. Sanchez v. State of Colorado, 97 F.3d 1303, 1311 (10th Cir. 1996); Clark v. Calhoun County, Miss., 21 F.3d 92, 95 (5th Cir. 1994).
In McNeil the Seventh Circuit has ruled that voting age population ("VAP") is the relevant population standard for determining the first Gingles prong. McNeil, 851 F.2d at 945. This standard has never been overturned by the Seventh Circuit. While several circuits. have adopted a citizenship voting age population ("CVAP") standard as the population benchmark for the purposes of the first Gingles prong, see Campos v. City of Houston, 113 F.3d 544, 1997 U.S. App. LEXIS 11637, 1997 WL 259678 (5th Cir. 1997); Romero v. City of Pomona, 883 F.2d 1418 (9th Cir. 1988), this Court sees no reason for revisiting this circuit's use of VAP as a benchmark.
While the use of CVAP as a benchmark for evaluating plaintiffs' alternative ward maps might have the benefit of focusing the VRA § 2 analysis on minority members who are indeed eligible to vote, there are too many difficulties with the use of such data for this Court to endorse the use of CVAP.
As a population benchmark, the use of CVAP leaves much to be desired from a representational perspective. The one person one vote criteria is based upon total population; the ideal ward population benchmark utilized by defendants in this case in Chicago was based upon total population. The use of total population as a benchmark, rather than either VAP or CVAP, might better reflect the principal of virtual representation implicit in the one person one vote rule. See e.g., Barnett v. Daley, 32 F.3d 1196, 1200 (7th Cir. 1994). At least it would be a more empirical standard.
The trial testimony, particularly the testimony of Professors Estrada and Rives, also demonstrated that citizenship data is inherently less precise and reliable than either total population or VAP. (See III.B.2.d) PP 225-234). Citizenship data is based upon sample data, rather than full count data. Citizenship data is also derived at the census block group level, rather than at the census block level upon which the redistricting was based. Citizenship data also does not become available until after the redistricting process is completed. These reasons render CVAP inappropriate to be used as a benchmark for VRA § 2 liability.
Additionally, the record in this trial indicates that Latino VAP majority wards, with a Latino VAP of approximately 59% have been effective Latino wards in aldermanic elections. The record in this trial also indicates that judicial districts, although judicial elections have different outcome rules than aldermanic elections, with bare Latino majorities have been effective Latino districts. (BOPX 74). The methodologies for determining Latino CVAP are at best approximations that would not add any additional precision to this analysis.
The second Gingles precondition combines with the third precondition to ask whether "the challenged districting thwarts a distinctive minority vote by submerging it in a larger white voting population." Growe, 507 U.S. at 40, 113 S. Ct. at 1084; Reed v. Town of Babylon, 914 F. Supp. 843, 863 (E.D.N.Y. 1996). Although the second and third preconditions are analytically distinct, courts frequently group these preconditions together in their polarization analysis. Richard Grofman, Lisa Handley, Richard Niemi, Minority Representation and the Quest for Voting Equality, Cambridge University Press (Cambridge: 1992), 68. The third Gingles precondition asks whether the challenged practice, districting scheme or electoral structure is a cause of the minority group's inability to mobilize its potential voting power and to elect its preferred candidates. Uno, 72 F.3d at 980, (1st Cir. 1995). The third Gingles prong seeks to identify "legally significant white bloc voting," that is, white bloc voting that normally defeats the combined strength of minority support plus white 'crossover' votes. Gingles, 478 U.S. at 56, 106 S. Ct. at 2769.
When analyzing racial bloc voting, Gingles instructs this Court that a pattern of racial bloc voting extending over a period of time is more probative of a claim that a district experiences legally significant polarization than are the results of a single election. Gingles, 478 U.S. at 57, 106 S. Ct. at 2769; NAACP v. City of Niagara Falls, 65 F.3d 1002, 1012 (2d Cir. 1995). Plaintiffs, however, cannot prevail on the third Gingles prong in the fact of significant probative evidence establishing that whites vote as a bloc for reasons wholly unrelated to race. UNO, 72 F.3d at 981.
When analyzing voting patterns and behavior in order to determine minority cohesion and white racial bloc voting, it is important to look to who is actually running for office -- whites or African-Americans or Latinos-- in order to determine whether minorities are voting for certain candidates because they are "truly" minority representatives of choice and whether the majority is voting against candidates for reasons of race. NAACP v. City of Niagara Falls, 65 F.3d at 1014. While it is misplaced to argue that a court must be color-blind to the race of candidates when analyzing patterns of minority voting cohesion and majority racial bloc voting, it would be equally mistaken to fall into a sloppy tokenism assuming that only minority members can be the minority candidate of choice. As Judge Cabranes of the Second Circuit has so eloquently observed:
We decline to adopt an approach precluding the possibility that a white candidate can be the actual and legitimate choice of minority voters. Such an approach would project a bleak, if not hopeless, view of our society -- a view inconsistent with our people's aspirations for a multiracial and integrated constitutional democracy.
NAACP v. City of Niagara Falls, 65 F.3d at 1015.
The satisfaction of the three Gingles preconditions, while necessary for the establishment of a VRA § 2 vote dilution claim, is not sufficient to establish the existence of dilution. De Grandy, 512 U.S. at 1012, 114 S. Ct. at 2657; N.A.A.C.P. v. City of Niagara Falls, N.Y., 65 F.3d at 1007. Certainly, proof of the three Gingles preconditions creates an inference that minority members have been injured by the challenged electoral practice and structure. UNO, 72 F.3d at 980. It is the exception, rather than the rule, that plaintiffs would establish the three Gingles yet fail to establish that under the totality of the circumstances, the challenged standard, practice or procedure "impairs the ability of ... [minority] voters to participate equally in the political process and to elect candidates of their choice." Clark v. Calhoun County, Miss, 88 F.3d 1393, 1396 (5th Cir. 1996); NAACP v. City of Niagara Falls, N.Y., 65 F.3d at 1019, n. 21; Jenkins v. Red Clay Consol. School Dist. Bd. of Educ., 4 F.3d 1103, 1135 (3rd Cir. 1993), cert. denied, 512 U.S. 1252, 114 S. Ct. 2779, 129 L. Ed. 2d 891 (1994). Nonetheless, the analysis does not end with the three Gingles preconditions:
But if Gingles so clearly identified the three as generally necessary to prove a § 2 claim, it just as clearly declined to hold them sufficient in combination, either in the sense that a court's examination of relevant circumstances was complete once the three factors were found to exist, or in the sense that the three in combination necessarily and in all circumstances demonstrated dilution... The ultimate conclusions about equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts. Lack of electoral success is evidence of vote dilution, but courts must also examine other evidence in the totality of circumstances, including the extent of the opportunity minority voters enjoy to participate in the political process.