Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-1997

Jenkins v. Reinbold
Precedential or Non-Precedential:

Docket 96-7313




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Filed June 18, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7313

ALDEN JENKINS; GWENDOLYN NEAL;
HARLAN ROBERTS,

Appellants

v.

WILLIAM E. MANNING; CAROLECE SCOTTON; IRWIN J.
BECNEL, JR.; CHARLES M. CAVANAUGH; LORETTA C.
RICE; EDWARD M. SOSNOWSKI; JACQUELINE WITT;
RED CLAY CONSOLIDATED SCHOOL DISTRICT BOARD
OF EDUCATION

On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 89-00230)

Argued April 17, 1997

BEFORE: GREENBERG, ALITO, and ROSENN,
Circuit Judges

(Filed: June 18, 1997)
Gary W. Aber
Heiman, Aber & Goldlust
First Federal Plaza
702 King Street
P.O. Box 1675, Suite 600
Wilmington, DE 19801

Brenda Wright (Argued)
Samuel L. Walters
Todd A. Cox
Lawyers Committee for Civil
Rights
1450 G. Street, N.W.
Suite 400
Washington, DC 20005

Attorneys for Appellants

Thomas J. Manley (Argued)
Albert Diaz
Hunton & Williams
One Hanover Square
Fayetteville Street Mall
Suite 1400
Raleigh, NC 27601

Alfred D'Angelo, Jr.
Pepper, Hamilton & Scheetz
1201 Market Street Suite 1600
Wilmington, DE 19801

Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Appellants, Alden Jenkins, Gwendolyn Neal, and Harlan
Roberts, appeal from a judgment entered in favor of
appellees, the Red Clay Consolidated School District Board
of Education ("The Board") in Delaware and the individual

                   2
Board members,1 finding that the at-large system of electing
Board members does not violate Section 2 of the Voting
Rights Act. The district court's conclusion that appellants
failed to establish a section 2 violation was not clearly
erroneous, and its legal conclusions were sound. Therefore,
we will affirm.

I. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C.
§§ 1331, 1343(a)(3) and (4), and 42 U.S.C. § 1973j(f). We
have jurisdiction over this timely filed appeal under 28
U.S.C. § 1291.

Section 2 cases present mixed questions of law and fact,
so our review of the district court's legal analysis is plenary,
but our review of the court's factual findings is governed by
the clearly erroneous standard. Jenkins v. Red Clay Consol.
Sch. Dist. Bd. of Educ., 

, 1116-17 (3d Cir.
1993), cert. denied, 

, 

(1994)
("Jenkins II"). "[I]t is this combination of factual deference
and legal review that best `preserves the benefit of the trial
court's particular familiarity with the indigenous political
reality without endangering the rule of law.' " 

(citation omitted); see also Ortiz v. City of Philadelphia
Office of City Com'rs Registration Div., 

, 308-09
(3d Cir. 1994).

If there is some evidence to support a district court's
findings, a reviewing court can conclude that thefindings
are clearly erroneous only when " `the reviewing court on
the entire evidence is left with the definite andfirm
conviction that a mistake has been committed.' " Anderson
v. City of Bessemer City, 

, 573, 

, 1511 (1985) (citation omitted). A reviewing court,
however, may not substitute its own view of the weight of
the evidence for that of the district court if the district
court's findings represent a plausible reading of the
evidence. 

105 S.Ct. at 1511.
_________________________________________________________________

1. The individual named appellees are William E. Manning, Carolece
Scotton, Irwin J. Becnel, Jr., Charles M. Cavanaugh, Loretta C. Rice,
Edward M. Sosnowski, and Jacqueline Witt.

                    3
II. FACTUAL AND PROCEDURAL HISTORY

The appellants filed this case as a class action on behalf
of all eligible black voters in the Red Clay School District to
challenge the method of electing members to the Red Clay
Board of Education. Appellants charged that the at-large
electoral system "unlawfully dilutes the voting strength of
black citizens and has the effect of providing black citizens
in the Red Clay School District less opportunity than white
citizens to participate in the political process and to elect
candidates of their choice to the Red Clay Board of
Education." Jenkins v. Red Clay Consol. Sch. Dist. Bd. of
Educ., 

, 221-22 (D. Del. 1991) ("Jenkins
I"), rev'd, Jenkins II, 

.

The Red Clay School District was established in
November 1980. The Board has seven seats; each member
sits for a five-year term, and elections are staggered so that
each year there are elections for one or two seats. The first
election was held in January 1981; since then, elections
have been held annually in May. Candidates for the Board
only must obtain the signatures of 20 voters to run for the
Board.

The Red Clay electoral system is characterized as an at-
large or multi-member district system. Jenkins I, 780 F.
Supp. at 222. "In Red Clay, there is an assigned-post
system, and only candidates living in a particular district
may run for that particular district's seat. All Red Clay
voters, however, can vote for each seat." Jenkins v. Red
Clay Consol. Sch. Dist. Bd. of Ed., 

, at *21
(D. Del. 1996) ("Jenkins III"). Each voter may vote for one
candidate from each particular district, which is called a
nominating district, and the candidate in each nominating
district receiving a plurality of the votes wins. Jenkins 

. Thus, the system, though providing
for representation on the Board from each of seven defined
nominating districts, does so on the basis of at-large voting.
This voting plan is at the heart of this controversy.

The Supreme Court has "long recognized that. . . at-large
voting schemes may `operate to minimize or cancel out the
voting strength of racial [minorities in] the voting
population.' " Thornburg v. Gingles, 

, 47-48, 106

                    

, 2764-65 (1986) (citations, footnote, and internal
quotation marks omitted). The danger inherent in at-large
voting systems is that the majority, based on its greater
numbers, will be able to elect its chosen candidates and
defeat the candidates preferred by the minority. 

106 S.Ct. at 2765. Gingles has become a guiding case
under the Voting Rights Act.

Following a bench trial, the district court concluded that
appellants failed to establish one of three necessary factors
to support their case under Gingles, namely, legally
significant white bloc voting. Nonetheless, to make a
comprehensive record, the court also analyzed the at-large
electoral system under the totality of the circumstances.
Jenkins 

. The court concluded that
even if the appellants had established the three threshold
factors, including white bloc voting, necessary to obtain
relief under Gingles, under the totality of the circumstances
they failed to prove a violation of Section 2 of the Voting
Rights Act. 

Appellants appealed the district court's decision to this
court, and we reversed and remanded for further
proceedings. Jenkins II, 

. We held that the
district court erred in its assessment of the effects of white
bloc voting. Only one candidate ever won a Red Clay
Education Board election with a plurality of the vote; we
found this single election insufficient to support the district
court's finding that the plurality-win rule enables minority-
preferred candidates to overcome white bloc voting. 

We explained that the district court improperly
based its assessment on the potential, rather than the
actual, effects of plurality voting on the ability of black
voters to elect their chosen representatives. 

Because we had "no way of knowing what conclusions the
district court would have arrived at in regards to white bloc
voting had it not been laboring under its misperception as
to the significance of Red Clay's plurality voting scheme,"
we remanded the case to the district court for
reconsideration. 

the district court admitted additional
evidence and ultimately concluded that although the
appellants had demonstrated the presence of the three

                     5
threshold Gingles factors, they had not established under
the totality of the circumstances that there had been a
section 2 violation. Jenkins III, 

. The
appellants then appealed again.

III. DISCUSSION

Section 2 of the Voting Rights Act provides:

(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or
applied by any State or political subdivision 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, or in contravention of the
guarantees set forth in section 1973(b)(f)(2) of this title.
...

(b) A violation of subsection (a) of this section is
established if, based on the totality of the
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. The extent to
which members of a protected class have been elected
to office in the State or political subdivision 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. "The essence of a § 2 claim is that a
certain electoral law, practice, or structure interacts with
social and historical conditions to cause an inequality in
the opportunities enjoyed by black and white voters to elect
their preferred representatives." 

,
106 S.Ct. at 2764. In the legislative history to the 1982
amendments to the Voting Rights Act, the Senate
enumerated several factors ("the Senate Report factors")

                     6
that might be relevant to an evaluation of challenges made
under section 2:

To establish a violation, plaintiffs could show a variety
of factors, depending upon the kind of rule, practice, or
procedure called into question. Typical factors include:

1. the extent of any history of official discrimination
in the state or political subdivision that touched the
right of the members of the minority group to register,
to vote, or otherwise to participate in the democratic
process;

2. the extent to which voting in the elections of the
state or political subdivision is racially polarized;

3. the extent to which the state or political
subdivision has used unusually large election districts,
majority vote requirements, anti-single shot provisions,
or other voting practices or procedures that may
enhance the opportunity for discrimination against the
minority group;

4. if there is a candidate slating process, whether
the members of the minority group have been denied
access to that process;

5. the extent to which members of the minority
group in the state or political subdivision bear the
effects of discrimination in such areas as education,
employment and health, which hinder their ability to
participate effectively in the political process;

6. whether political campaigns have been
characterized by overt or subtle racial appeals;

7. the extent to which members of the minority
group have been elected to public office in the
jurisdiction.

Additional factors that in some cases have had
probative value as part of plaintiffs' evidence to
establish a violation are:

whether there is a significant lack of responsiveness
on the part of elected officials to the particularized
needs of the members of the minority group.

                    7
whether the policy underlying the state or political
subdivision's use of such voting qualification,
prerequisite to voting, or standard, practice or
procedure is tenuous.

1982 U.S.C.C.A.N. 177, 206-07 (footnotes omitted).
According to the Senate Report, there is no magical number
of factors which must be shown to exist; "the question
whether the political processes are `equally open' depends
upon a searching practical evaluation of the `past and
present reality.' " 

(footnote omitted).
Additionally, the Senate Report noted that "Section 2, as
amended, adopts the functional view of `political process.
. . .' " 

n.120. See also 

,
106 S.Ct. at 2763-64; Jenkins 

.

A plaintiff must establish three elements before he or she
can demonstrate that minority voters have been deprived of
the opportunity to elect representatives of their choosing in
violation of Section 2. These factors, to which we alluded
above, have come to be known as the "Gingles factors":

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 -- in the absence of
special circumstances, such as the minority candidate
running unopposed. . . usually to defeat the minority's
preferred candidate.

, 106 S.Ct. at 2766-67 (footnotes
and citations omitted). See also Reno v. Bossier Parish Sch.
Bd., 

, 1498 (1997).

The Supreme Court viewed the Gingles factors as
"necessary preconditions," 

106 S.Ct. at 2766, to
finding a section 2 violation but also noted the importance
of the other factors enumerated in the Senate Report.
Indeed, the Supreme Court and the courts of appeals
continuously have reiterated that the Gingles factors are
necessary, but not sufficient, preconditions to a successful
section 2 challenge. Johnson v. De Grandy, 

,

                     8
1011, 

, 2657 (1994); Jenkins 

; Uno v. City of Holyoke, 

, 980 (1st Cir.
1995); N.A.A.C.P., Inc. v. City of Niagara Falls, 

, 1019 (2d Cir. 1995); Baird v. Consolidated City of
Indianapolis, 

, 359 (7th Cir. 1992). The two
most important Senate Report factors are " `the extent to
which minority group members have been elected to public
office in the jurisdiction' and the `extent to which voting in
the elections of the state or political subdivision is racially
polarized.' " 

n.15 (citations omitted).

The Supreme Court recently has refined the processes for
evaluating Section 2 claims. "In a § 2 vote dilution suit,
along with determining whether the Gingles preconditions
are met and whether the totality of the circumstances
supports a finding of liability, a court mustfind a
reasonable alternative practice as a benchmark against
which to measure the existing voting practice." Holder v.
Hall, 

, 880, 

, 2585 (1994)
(footnote and citation omitted); see also Little Rock Sch.
Dist. v. Pulaski County Special Sch. Dist., #1, 

,
910 (8th Cir. 1995).

We addressed Gingles in Jenkins II, where we emphasized
that:

The ultimate determination under § 2 remains whether,
under the totality of the circumstances, the
multimember districting scheme at issue in this case
deprived black voters of an equal opportunity to
participate in the political process and to elect
representatives of their choice. . . . Therefore, even
after a court has determined that the plaintiffs proved
each of the Gingles factors, it must go on to consider
whether the totality of circumstances, evaluated under
a searching practical evaluation of the past and
present reality and a functional view of political
process, establishes that the particular voting scheme
diminishes the minority group's opportunity fully to
participate in the political process.

Jenkins 

-16 (citations and internal
quotation marks omitted). We opined that it would be the

                    9
unusual case where the plaintiffs proved the Gingles factors
yet could not prove a section 2 violation under the totality
of the circumstances, but we did not foreclose the
possibility that such a case could arise. 

n.6. See
also Little Rock Sch. Dist. 

(court assumed
existence of Gingles factors but found no violation
established under totality of circumstances); Niagara Falls,

(Gingles factors established, but no violation
under totality of the circumstances).

According to the district court, this case is such an
unusual case. On remand, the district court addressed only
the third Gingles factor, the existence and effect of white
bloc voting, reasoning that we had affirmed its prior
findings that the appellants had satisfied the other Gingles
factors. Jenkins III, 

, at *2. Using a three-
step inquiry to analyze whether white bloc voting defeats
minority preferred candidates in Red Clay, the district court
"(1) identif[ied] which candidates were minority-preferred;
(2) observe[d] whether the percentage of whites voting as a
bloc against the minority-preferred candidate has been
sufficient usually to defeat the minority-preferred
candidate; and (3) decide[d] whether any of the elections
involved special circumstances." 

(footnote omitted).

The district court found that five out of 11 minority-
preferred candidates won their elections. 

After
considering whether the victories of minority-preferred
candidates could be attributed to special circumstances,
the district court concluded that "white voters usually vote
as a bloc against the minority-preferred candidate when
that candidate is black and there is a white candidate in
the race. This bloc is large enough usually to defeat black
minority-preferred candidates. In these circumstances, the
court finds legally significant, although not overwhelming,
white bloc voting." 

Finding that appellants satisfied the three Gingles factors,2
the district court then assessed the Senate Report factors.
As we will discuss in more detail below, the district court
addressed each factor individually, finding that some
_________________________________________________________________

2. The appellees do not challenge this finding on appeal and, of course,
the appellants accept it.

                    10
supported the appellants' claim while others weighed
against finding a violation of Section 2. The court concluded
that under the totality of the circumstances, the appellants
failed to establish a section 2 violation.

Appellants contend that this conclusion was in error and
argue that the district court improperly weighed the various
Senate Report factors in its analysis of the totality of the
circumstances. The Board responds that the court's
analysis was proper and also argues that the district
court's conclusions are bolstered by the fact that the black
voting population consistently has elected 10% black and
20% minority-preferred candidates to the Board, afigure
commensurate with the 13% black representation in the
voting age population.

During the initial appeal, we rejected the Board's
argument that even if all the Gingles factors had been
satisfied, the district court's analysis supported a finding
that under the totality of the circumstances, no violation
was established. First, we found that the district court's
evaluation of the totality of the circumstances was tainted
by its finding that the plurality-win rule combated the
potential effects of white bloc voting. Jenkins 

. Second, we concluded that the district court's
analysis was conclusory and did not comport with the
requirement that the totality of the circumstances be
subject to " `a searching practical evaluation.' " 

Third, even if a less searching evaluation were
permitted, we required the district court to provide a more
detailed explanation of its findings and analysis. 

the district court corrected these errors.
First, it discarded its plurality-win theory and reevaluated
the elections to determine whether legally significant white
bloc voting was established. Jenkins III, 

,
at *15. Thus, the plurality-win theory did not taint its
findings on the remand. Second, the district court engaged
in the more detailed evaluation contemplated by the Senate
Report and the case law as we required in Jenkins II.
Finally, the district court provided detailed explanations of
its findings and analysis.

As on the first appeal, the parties' dispute focuses on the
findings related to white bloc voting. This time, however,

                     11
the disagreement centers not on the finding that the
appellants established the third Gingles factor, but on how
the district court's finding of legally significant white bloc
voting influenced its other findings. Specifically, the parties
dispute the weight to be accorded the electoral success of
black candidates in the analysis of the totality of the
circumstances.

1. Significance of Proportional Representation and Minority
Electoral Success

In finding that appellants did not establish a Section 2
violation, the district court relied in large part on the
undeniably substantial success of minority candidates.
Nevertheless, proportionality of representation, or the lack
thereof, though relevant, is not dispositive either in proving
or disproving a section 2 claim. See, e.g., Little Rock Sch.

(citing Johnson v. De Grandy);
Harvell v. Blytheville Sch. Dist. #5, 

, 1388 (8th
Cir. 1995), cert. denied, 

(1996).3

In Jenkins II, we rejected the Board's argument that the
consistent proportional representation of blacks on the
Board should defeat the section 2 claim. Jenkins 

. We viewed the district court's findings that
some of the black electoral victories were the product of
special circumstances and its decision to consider the
Gingles factors

as a finding that the black voters of Red Clay had not
achieved the persistent proportional representation
discussed in Gingles that would defeat a § 2 claim at
the threshold and thereby obviate the need to consider
the Gingles factors. We conclude that the court's
finding in this regard was not clearly erroneous as the
_________________________________________________________________

3. These cases rely on Johnson v. De Grandy for support. However, the
court in Johnson v. De Grandy was addressing a different sort of
proportionality when it found that proportionality is relevant but not
dispositive. As used there, the term "link[ed] the number of majority-
minority voting districts to minority members' share of the relevant
population. The concept is distinct from the subject of the proportional
representation clause of 2. . . ." Johnson v. De 

n.11.

                    12
record amply supports a finding that the black voters
of Red Clay have not achieved persistent proportional
representation.

On remand, the district court reassessed its earlier
finding that black candidates had achieved substantial
electoral success, but not sustained proportional
representation, in light of its new findings that two white
candidates who were elected to the Board also were
minority-preferred. Jenkins III, 

, at *24.
The district court based its finding of substantial minority
electoral success on several elections. First, the district
court counted the 1981 victory of black candidate Harlan
Roberts, who won a plurality of the votes in an election of
seven candidates. The district court also found that black
candidate Carolece Scotton's 1990 defeat of black candidate
Rita Shockley demonstrated minority electoral success. 

In 1991, black candidate Ronald Greene defeated
white candidate Russell Fiske; the court also considered
this election in its evaluation of minority electoral success.

court included in its evaluation the electoral
victories of two white candidates, Charles Cavanaugh in
1988 and Patricia Reinbold in 1989, whom it deemed
minority-preferred. Appellants argue that although the
district court did not allow these elections to defeat its
finding of legally significant white bloc voting, it improperly
weighed those elections in finding substantial minority
electoral success. Appellants also claim that these
candidates should not have been considered minority-
preferred.

In Jenkins II, we rejected a bright-line rule that any
minority candidate should be viewed as minority-preferred
and explained that although there is an inference that a
minority candidate is minority-preferred, plaintiffs must
provide evidence, such as statistical evidence regarding
voting patterns or lay testimony, demonstrating that the
candidate is, in fact, minority-preferred. Jenkins 

. Similarly, we refused to propound a rule that only
minority candidates may be considered minority-preferred.

                    13


Instead, we adopted a more flexible approach,
emphasizing that courts must examine closely the nature of
minority voter support for candidates, especially white
candidates, to determine whether a particular candidate is
minority-preferred. 

(citing Sanchez v. Bond,

, 1494-96 (10th Cir. 1989)).

We enumerated several inquiries pertinent to determining
whether a particular white candidate is minority-preferred.
"One relevant consideration is the extent to which the
minority community can be said to have sponsored the
candidate." Jenkins 

. An evaluation of that
factor should focus on "the level of minority involvement in
initially advancing the particular candidate and in
conducting or financing that candidate's campaign." 

of attention the candidate gave to minority needs and
interests, including how often the candidate campaigned in
predominantly minority areas, is also relevant. 

We also found pertinent the level of minority voter turn out
in white-white elections, compared to the turn out when a
black candidate is running. 

in mind
the disincentives that may exist for minority candidates to
seek office, the extent to which minority candidates have
run for office and the ease or difficulty with which a
minority candidate can qualify to run for office may be
relevant considerations." 

examine individual
elections.

a. Election of Harlan Roberts in 1981

The election of Harlan Roberts in 1981 has been a matter
of some controversy during this litigation. Roberts is the
only candidate ever elected to the Board by a plurality of
the votes. The district court, considering the "practical
effect" of the plurality-win rule in assessing minority
electoral success, relied on this unusual election to support
its finding of substantial black electoral success. Jenkins
III, 

, at *23.

In Jenkins II, we accepted the district court's original
finding that the Roberts victory occurred under special
circumstances. Jenkins 

, 1132. The
district court's conclusion on remand that special
circumstances were not at work in this election was based

                    14
on its finding that Roberts enjoyed substantial white and
black support and its conviction that the victory should not
be discounted simply because the plurality system
contributed to Roberts' victory. Jenkins III, 

, at *15. This finding was clearly erroneous; this
election involved the largest field of candidates ever to run
for a single Board seat, 

it was the first Board
election ever held, and Roberts was the only candidate ever
to have won with a plurality of the vote, Jenkins 

.

However, this error does not require reversal and remand
to the district court for yet another assessment of this case.
Although the district court should have discounted the
effect of this victory in its analysis of minority electoral
success, the fact remains that a black candidate was
elected. This election still should be counted, although it
should be accorded less weight. Thus, although the district
court erred in its analysis of this race, this error does not
upset the overall evaluation of minority electoral success.
Rather, we must look to the other races considered in the
district court's analysis to determine whether the error is
reversible.

b. Carolece Scotton's Election in 1990

The district court found that there were special
circumstances in this election because it was between two
black candidates. The court therefore found the election
less probative on the question of white bloc voting. Jenkins
III, 

, at *17. Appellants urge that the
district court erred by failing to consider this special
circumstance in its analysis of black electoral success.

Appellants' argument fails. In Jenkins II, we "express[ed]
no opinion on the relationship between the consideration of
special circumstances in the two contexts (sustained
proportional representation and white bloc voting)." Jenkins

n.9. Ironically, in its original opinion, the
district court considered special circumstances in the
context of its findings on sustained proportional
representation but erroneously failed to apply those
findings to its evaluation of white bloc voting. 

that Gingles requires the district court to consider those

                     15
circumstances in the context of white bloc voting, 

remand, the district court did so.

We now find that it is quite reasonable to hold that a
particular election must be discounted for one purpose but
not another. Here, the district court's finding that a black-
black election should be discounted for purposes of
evaluating white bloc voting does not compel the conclusion
that the same election must be discounted when evaluating
minority electoral success. To the contrary, the fact that
two black candidates ran in one election, unopposed by any
white candidate, is evidence of black electoral success. It
demonstrates that blacks in Red Clay can and do put
forward and support candidates who can succeed. The
appellants actually seem to be asking us to discount any
evidence of black electoral success; this we cannot do.
There was no error in giving weight to the electoral success
of Scotton in 1990.4

c. Election of Ronald Greene in 1991

Ronald Greene, a black candidate, defeated Russell Fiske,
a white candidate, in a 1991 election for a special one-year
term. The court found that both statistical and lay
testimony demonstrated that Greene was the minority-
preferred candidate. Jenkins III, 

, at *9.
This finding has not been challenged on appeal, and we
accept it as not clearly erroneous.

d. Election of Charles Cavanaugh in 1988

In 1983, Cavanaugh, a white candidate, defeated Betty
Anderson, who is black. The district court found that
_________________________________________________________________

4. In a footnote to their brief, appellants also argue that the court erred
in finding that Scotton, rather than her opponent Shockley, was the
minority-preferred candidate in 1990. Br. at 32 n.15. There is no
detailed argument on this point, and we decline to address it. However,
the evidence we have reviewed supports the district court's finding on
this matter, and we view the argument as an effort by the appellants to
persuade us (and the district court) to disregard all evidence of minority
electoral success. For a more detailed discussion of this question, see
Jenkins III, 

, at *8 (comparing statistical evidence
supporting Scotton's status as the minority-preferred candidate to
plaintiffs' lay testimony about minority support for Shockley).

                    16
Anderson was the minority-preferred candidate in that race.
In 1988, Cavanaugh, running unopposed, won reelection.
Evaluating the factors delineated in Jenkins II, the district
court concluded that by 1988 "Cavanaugh was the
representative of choice of minority voters," and was the
minority-preferred candidate. 

6. The district court
found that Cavanaugh had become focused on the needs
and interests of the minority community during his earlier
term, and that in 1988 he was supportive of issues
important to the minority community. 

Additionally, the court found that there were no
impediments to a minority candidate entering the 1988
race against Cavanaugh. 

This finding may be questionable, given that the district
court recognized that no evidence demonstrated that the
minority community advanced, conducted, or financed
Cavanaugh's campaign in 1988. 

Additionally, the
court noted that there was no evidence that Cavanaugh's
unopposed race affected black or white voter turnout. 

finding that Cavanaugh was minority-
preferred may not be clearly erroneous, it is certainly not
well supported. The district court should have discounted
this race as having no impact on minority electoral success,
just as it discounted this race in its assessment of white
bloc voting, 

e. Election of Patricia Reinbold in 1989

Reinbold, who is white, defeated white candidate Donald
Schneck in 1989. Based on evidence that Reinbold
campaigned on issues of concern to the minority
community, blacks were involved in Reinbold's campaign
efforts, important black community leaders supported
Reinbold, and there were no barriers to a black candidate
running in the election, the district court concluded that
Reinbold was the minority-preferred candidate. 

The court found that although black voter turn out
decreased disproportionately in that year, the decrease
could not be attributed to the absence of a black candidate.

The district court's conclusion that Reinbold was the
minority-preferred candidate was not clearly erroneous.

                    17
Moreover, as noted above, individual elections can be
accorded differing weight for different purposes. Although a
white-white election obviously is of less relevance to an
analysis of white bloc voting, it is relevant to an assessment
of minority electoral success if white minority-preferred
candidates defeat other white non-minority-preferred
candidates. The district court did not err in considering this
election in its assessment of minority electoral success.

f. Conclusion on Minority Electoral Success

Section 2 guarantees equality of opportunity for minority
participation in the electoral and political processes. It does
not focus on whether minorities are able to elect other
minorities to office, but rather addresses whether minorities
have an equal opportunity to elect representatives of their
choice, whatever their race, to office. Although the district
court did err in some respects, on the whole, discounting
the elections which should have been weighed less heavily
or ignored in the analysis of minority electoral success, we
find that the district court did not commit clear error in
concluding that minority electoral success, while not
reaching sustained levels of proportionality, was
substantial. Although several black candidates who sought
election were defeated, often by white candidates, others
were successful, and in some elections minorities also were
able to elect white candidates of their choosing. The
electoral success of Roberts, Scotton, Greene, and Reinbold
support the finding of substantial minority electoral
success. As the district court reasonably found,
"Considering that black voters comprise only 13% of the
VAP [voting age population], their success has been great.
It has not been persistent or sustained, but it has been
impressive." 

These findings supported the
district court's conclusion that under the totality of the
circumstances, no section 2 violation was established.

2. Analysis of the Remaining Senate Report Factors

Appellants challenge the district court's findings on many
of the Senate Report factors as erroneous and also argue
that the court improperly weighed the different factors in its
evaluation of the totality of the circumstances. Wefirst will

                    18
discuss the court's assessment of each factor and then
evaluate the weight ascribed to each factor in its analysis of
the totality of the circumstances.

a. Past and Present Discrimination

Finding a history of discrimination against minorities in
Delaware and a general lower socioeconomic status of
minorities in Red Clay, the district court concluded that
those factors might have caused the demonstrated
depressed minority political and electoral participation in
Red Clay. 

Appellants challenge only the weight
accorded this finding in the totality of the circumstances
analysis.

b. Racial Polarization of Voting

Based on its findings of voting cohesion among blacks as
well as legally significant white bloc voting, the district
court determined that voting in Red Clay is, to a degree,
racially polarized. 

This finding is not challenged
on appeal.

c. Effects of other Electoral Practices or Procedures

On remand, the district court reaffirmed that the
opportunity for electoral discrimination against minorities
was not enhanced by other features of the Red Clay
electoral system, such as the size of the district, the
plurality-win rule, or the anti-single shot voting provision.

although the anti-single shot rule
precludes resort to a strategy that minorities could employ
to elect candidates of their choosing, the court noted that
it also ensures that citizens from each district in Red Clay
have representatives on the Board. 

were
not clearly erroneous.

The district court also noted that other aspects of the Red
Clay voting system were beneficial to minorities,
particularly the absence of any voter registration
requirements and the ability of voters to vote at any polling
place in the district. 

The court correctly
concluded that these elements of the electoral system make
it easier for minorities to vote. Similarly correct were the
district court's original findings that the use of Tuesdays
rather than Saturdays as election days did not enhance the

                    19
opportunity for discrimination. Jenkins 

.

The district court did not discuss in either opinion the
appellants' charges that the opportunity for discrimination
was enhanced by the low appointment rate of blacks as poll
workers and election officials in school board elections. The
parties stipulated that during a three-year period only ten
of 149 such appointments were black. While this number
obviously reflects some disparity, the appellants have not
alerted us to any other record evidence on this issue, so it
is not possible to determine whether the disparity is the
result of intentional discrimination or how that disparity
affects voter turnout.

The appellants also claim that the district court erred
"because of its failure to acknowledge that [the voting
practices and procedures] include a nominating-district
residency requirement that creates a direct barrier to
minority candidacies outside the two Wilmington-based
nominating districts." Br. at 48. This is a more serious
concern; however, the district court adequately addressed
this issue in its original opinion, concluding that the
system promotes slating and also ensures that citizens
from all areas of the district will be represented on the
board. Jenkins 

. The court concluded
that although the system precluded single shot voting
which can help minorities elect candidates of their
choosing, overall this feature of the electoral system did not
work either in favor of or against minority voters. 

The district court again discussed this issue on
remand, and reaffirmed its earlier findings. Jenkins III,

, at *21.

Appellants' contention that a nominating district
requirement limits minority candidates to the two
Wilmingon-based nominating districts strikes us as highly
ironic. The appellants have brought this action seeking the
establishment of a single-member district system with each
district electing its own member. Thus, for example, only
residents of District B could vote in the elections for the
member from District B, and those residents could vote in
only those elections. The theory, of course, is that a single-
member district could become a majority-minority district,

                    20
thus leading to the election of a minority member. Yet,
surely the appellants should recognize that according to
their theory of this case, the system they seek would tend
to limit minority candidates to the majority-minority district
or districts. Although under the at-large system, black
candidates most frequently run for election in Districts A
and B, minority candidates have run for election from five
different districts. 

Thus, appellants now
complain about a system that they seek to perpetuate and
strengthen.

On the whole, as the district court explained, the Red
Clay election procedures "are open and accommodating and
do not enhance the opportunity for discrimination against
black citizens." 

Thus, the district court's findings
about the features of the Red Clay electoral system were
not clearly erroneous.

d. Accessibility of Slating Processes to Minority Candidates

The district court reaffirmed its original conclusion that
the slating processes are open to minority candidates. 

is not challenged on appeal.

e. Use of Racial Appeals in Election Campaigns

On remand, the district court reaffirmed its original
conclusion that racial appeals were not used in Red Clay
elections. 

Appellants argue that the district court
improperly discounted the use of a flyer during the 1988
campaign that warned against voting for a black candidate
who might support school population changes to promote
racial balance. The district court correctly determined that
this flyer did not constitute a racial appeal. Theflyer simply
noted the three candidates' positions on changing feeder
patterns within the School District, and it did not identify
the candidates by race. Although the feeder pattern issue
did involve the percentages of students of different races in
the various schools and how the candidates might vote on
feeder pattern issues, this flyer was more of an issue appeal
than a racial appeal, albeit an issue heavily identified with
racial concerns. The district court's finding on this factor
was not clearly erroneous.

f. Policies Supporting At-Large Multi-District System

The district court reaffirmed its earlier finding that two
policies support the use of at-large voting: it promotes

                     21
broader accountability of the Board members by requiring
them to seek support from citizens of all district
neighborhoods, and it allows citizens to vote every year for
Board members, rather than once every five years, when a
particular district seat comes up for election. 

The district court found that the relationship between these
policies and the use of the at-large electoral system was not
tenuous. Moreover, all but one school district in Delaware
elect board members in this manner. The common usage of
this system further supports the district court's conclusion
that the policies advanced in support of the at-large system
are sufficiently related to the use of the system. The finding
was not clearly erroneous.

g. Responsiveness of the Board

The district court reaffirmed its original finding that the
Board had been unresponsive to minority concerns despite
improvement in the areas of employment of black teachers
and administrators and concerns about how black children
were being placed into special education classes. 

The court also noted, however, that a federal court now has
held that the schools of Red Clay are desegregated,
although there was substantial delay in achieving that
result. 

Board members, both black and
white, have begun to represent and advocate for issues of
concern to minorities. 

court noted that
recent electoral victories of black and white minority-
preferred candidates might represent or lead to increased
responsiveness by the Board to minorities. 

court found these factors significant, it still concluded that,
on the whole, this Senate Report factor weighed in favor of
appellants. This finding was not clearly erroneous.

h. The Totality of the Circumstances

In weighing the Senate Report factors in this case, the
two most important factors, the existence of racially
polarized voting and the extent of minority electoral
success, tilted the balance in different directions.

The district court found "legally significant, although not
overwhelming, white bloc voting," in Red Clay. 

The district court was entitled to accord substantial weight
to the existence of white bloc voting in its analysis of the

                    22
totality of the circumstances; the fact that the white bloc
voting was "not overwhelming" did not require the court to
discount significantly this factor. However, the court was
required to weigh this factor against its finding of
substantial minority electoral success, and it did so,
concluding that "[w]hile there has been legally significant
racially polarized voting in Red Clay, the results of that one
legal test do not tell the whole story." 

In some
cases, for example, either white bloc voting was not
responsible for the defeat of a minority or minority-
preferred candidate or there was actually cross-over white
voting for such candidates.

In the analysis of the totality of the circumstances,
substantial minority electoral success strongly
counterbalances the racially polarized voting. The
significance of the level of minority electoral success
achieved in Red Clay further is evidenced by the district
court's comparison of the success achieved under the at-
large system and the projected minority electoral success
the appellants' proposed single-district system would
produce. This comparison underscores the propriety of the
district court's finding that no Section 2 violation was
established by demonstrating that the proposed system
would be unlikely to produce increased minority electoral
success.5

Relying on appellants' expert's testimony, the court found
that a single district, District B, could be drawn in Red
Clay, the voting age population of which would be 55.64%
black. 

This district would include sections of two
_________________________________________________________________

5. We note that appellants argue that the district court's comparative
analysis is flawed because the district court did not discount those
elections in which special circumstances contributed to minority
electoral success and therefore incorrectly overstated the electoral
success in the at-large system. As noted above in the discussion
regarding minority electoral success, however, the court's discounting of
the elections was related to its assessment of white bloc voting, not
minority electoral success. Although we found that some of those
elections should have been discounted in the analysis of minority
electoral success as well, we conclude that the district court's
comparative analysis of the two electoral systems is not rendered clearly
erroneous by its failure to discount these elections.

                    23
existing nominating districts, Districts A and B, and would
enjoy, according to our calculations, an increase of almost
44% in the percentage of minorities in the voting age
population. In the new District A, blacks would comprise
15.46% of the voting age population, id.; as we calculate it,
this would represent almost a four percent increase. The
district court concluded that if Red Clay adopted a single-
member district system, blacks living in the new District B
almost always would succeed in electing their chosen
candidates, while blacks living outside of Districts A and B
would not often succeed in electing their preferred
candidates. 

To date, a black candidate has won all of the elections in
District B except for the 1985 election in which Harlan
Roberts was defeated. 

the results would
be the same if District B were transformed into a majority
black district in a single-member district system, the
district court concluded that "[b]ecause under the single
member district system the minority-preferred candidate
can be expected usually to win in District B, Harlan
Roberts' loss in 1985 logically could be blamed on the at-
large system of election." 

The district court concluded that a single-member system
would benefit some minority candidates and voters while
disadvantaging others: minority-preferred candidates
running in District B would benefit from a change to a
single-member district because of the significant increase of
the percentage of blacks in the voting age population. 

District A also would benefit, but the portion
of black voters for whose votes they would be competing
would increase only slightly. 

running in other districts (C, D, E) would be disadvantaged,
for the percentage of black voters to whom they could look
for support would decrease from 12% to less than 3% in
Districts E and D and 5% in District C. 

court also concluded that by concentrating black voters
into one district, the single-member plan also might
concentrate black candidates into one district, thereby
decreasing the representation of blacks outside that
district. 

district court concluded that the
single-member system might impair the ability of black

                    24
voters to elect white minority-preferred candidates by
decreasing the incentives for white candidates in the non-
black majority districts to appeal to black voters due to
their decreased percentages in the voting age populations of
those districts. 

For these reasons, the district
court found that "a switch to a single member district
would have had and likely would have only a very minor
impact, if any, on the success of minority-preferred
candidates." Id.6

Given the countervailing weight of the two most
important Senate Report factors, the other Senate Report
factors are very important in an assessment of the totality
of the circumstances. The district court's findings make
clear that, although there has been discrimination in Red
Clay which may have resulted in the decreased minority
voter participation, most of the features of the Red Clay
electoral system not only have not increased discrimination
against minorities but in several aspects actually have
made the electoral system more accessible to minority
voters and candidates. Moreover, racial appeals have not
been used in Red Clay elections. Finally, the situation in
Red Clay seems to be improving, as minority electoral
success continues and the Board's responsiveness to
minority concerns increases. Given these circumstances, we
find that the district court properly weighed all the various
Senate Report factors and reasonably concluded that no
Section 2 violation was established.

The district court conducted a searching analysis of past
and present political realities in Red Clay, and it compared
actual minority electoral success with the potential success
a single-member system would produce. The district court
followed our instructions on remand, and the evidence
supported its conclusions. We, too, have made a searching
_________________________________________________________________

6. We note that in the text of its opinion, the district court discussed the
effects of the proposed single-member plan on onlyfive nominating
districts. However, it is clear from the record, and from a footnote in the
district court's opinion, that the proposed plan would maintain a system
with seven nominating districts. App. at 846; Jenkins III, 

, at *30 n.35. The black voting age population would be 2.13% in
proposed District F and 2.86% in proposed District G. Jenkins III, 

, at *30 n.35.

                    25
analysis of the numerous facets of this case, and based on
that analysis, we are convinced that this case falls into that
category of unusual cases where the Gingles factors are
proved, but under the totality of the circumstances, no
section 2 violation is established. Although racially
polarized voting has characterized Red Clay elections, there
has been substantial minority electoral success, and a
change to a single-member system would not improve
appreciably the level of such success. Therefore, the district
court correctly concluded that no section 2 violation was
established.

IV. CONCLUSION

The district court's factual findings (except where noted
with regard to certain electoral results) and conclusions
were not clearly erroneous. We therefore uphold the district
court's conclusion that no section 2 violation was
established. Consequently, we affirm the order of April 12,
1996, entering judgment in favor of the appellees.

                    26
ROSENN, Circuit Judge, dissenting.

When last this case was before our court, Jenkins v. Red
Clay Consol. Sch. Dist. Bd. of Educ., 

(3d Cir.
1993) [Jenkins I], we stated that"it would be a highly
unusual case in which a plaintiff successfully proved the
existence of the three Gingles factors and still failed to
establish a violation [of § 2 of the Voting Rights Act]." 

n.6; see also 

Since that time, several
other Courts of Appeals have adopted our view.1 Yet today
the majority retreats from the compelling mandate of
Jenkins I, finding a "highly unusual" situation in the
ordinary and ambiguous details of the case as currently
presented. For this reason, I respectfully dissent.

The majority correctly states that the Gingles factors are
merely preconditions to a successful § 2 challenge, and that
courts must look beyond these factors to the totality of the
circumstances. The majority is also correct in stating that
the totality of the circumstances analysis focuses on the
Senate Report factors, and that the two most important
factors are "the extent to which voting in the elections of
the state or political subdivision is racially polarized" and
"the extent to which members of the minority group have
been elected to public office in the jurisdiction." But the
majority's analysis hinges on its view that minority
candidates have enjoyed "undeniably substantial success"
in Red Clay elections. I see the elections through a different
lens. The majority's weighing of the Senate Report factors is
imbalanced, and its affirmance of the district court decision
is unwarranted.

In focusing on the details of this case, the majority has
apparently overlooked the broad sweep of the Voting Rights
Act of 1965, 42 U.S.C. § 1973, and its 1982 amendments.
The Act is widely considered to be the most successful piece
of civil rights legislation ever enacted by Congress. See, e.g.,
Alexander Athan Yanos, Note, Reconciling the Right to Vote
_________________________________________________________________

1. See, e.g., Clark v. Calhoun County, 

, 1396 (5th Cir.
1996); Uno v. City of Holyoke, 

, 983 (1st Cir. 1995); NAACP
v. City of Niagara Falls, 

, 1020 n.21 (2d Cir. 1995); Nipper
v. Smith, 

, 1514 (11th Cir. 1994), cert. denied, 

(1995).

                    27
With the Voting Rights Act, 92 Colum. L. Rev. 1810, 1835
(1992). President Lyndon Johnson recognized the critical
importance of the vote to minorities when he responded to
the Civil Rights Act of 1964 by stating, "Yes, yes, . . . I want
all of those other things -- buses, restaurants, all of that --
but the right to vote with no ifs, ands, or buts, that's the
key." Merle Miller, Lyndon, An Oral Biography 371 (1980).

The 1982 amendments to the Voting Rights Act
acknowledged that while outright deprivation of the right to
vote was more or less a thing of the past, minority vote
dilution was still a tenacious problem. See, e.g., Armand
Derfner, Vote Dilution and the Voting Rights Act
Amendments of 1982, in Minority Vote Dilution 145, 145
(Chandler Davidson ed., 1984). When it enacted the
amendments, Congress was aware that at-large elections
were seen as the principal impediment to minority
representation. See, e.g., Timothy G. O'Rourke, The 1982
Amendments and the Voting Rights Paradox, in
Controversies in Minority Voting 85, 110 (Bernard Grofman
& Chandler Davidson eds., 1992).

The purpose of Section 2 is to prohibit electoral
arrangements which "dilute" (i.e., diminish) the voting
power of racial minority groups. For example, at-large
electoral systems (which allow every voter to vote for as
many candidates as there are legislative seats to be
filled in an entire jurisdiction) often violate Section 2 by
allowing a cohesive racial majority to elect every single
legislator, thereby leaving racial minorities
unrepresented.

Michael E. Lewyn, When Is Cumulative Voting Preferable to
Single-Member Districting?, 

. Rev. 197, 197 (1995)
(footnotes omitted).

It is against the broad mandate from Congress, that we
eliminate minority vote dilution resulting from at-large
electoral systems, that we must evaluate the case now
before us. Plaintiffs had asked the district court to order
Red Clay to adopt a system of single-member districts, the
traditional remedy in cases of this sort, see, e.g., 

, and one which would virtually guarantee
that minorities are represented on the Red Bank school

                     28
board. The majority has instead, by affirming the district
court decision, placed its imprimatur on a system which
only by a series of flukes and anomalies has permitted any
minority representation at all. This cannot be the desire of
Congress, and it most certainly is not that of the Supreme
Court. See Thornburg v. Gingles, 

, 76 (1986)
("Where multimember districting generally works to dilute
the minority vote, it cannot be defended on the ground that
it sporadically and serendipitously benefits minority
voters.").

When we examine the "undeniably substantial success of
minority candidates" upon which the majority relies, we see
that it is neither undeniable nor substantial. The majority
itself acknowledges that Harlan Roberts' 1981 plurality
victory was a never-repeated situation which should be
discounted. This echoes our view in Jenkins I in 1993:

Since no candidate, black or white, has won with a
mere plurality since 1981, and only one black
candidate has run in an election against more than a
single opposing candidate since 1981, the court could
not have concluded on this record that the plurality
scheme had the actual effect of allowing the black
voters of Red Clay to elect their representatives of
choice even though the white voters consistently voted
against the minority-preferred candidates in numbers
sufficient to prevent those candidates from winning a
majority of the overall vote.

Jenkins 

.

Carolece Scotton, who was slated with a white, suburban
candidate, beat another black candidate in an election in
which no white candidate chose to run. The election took
place in 1990, the year after this lawsuit was filed. The
Supreme Court has noted that it might be proper for lower
courts to view with some caution the success of black
candidates during the pendency of litigation. 

. See also Zimmer v. McKeithen, 

,
1307 (5th Cir. 1973) ("[S]uch success might be attributable
to political support motivated by different considerations --
namely that election of a black candidate will thwart
successful challenges to electoral schemes on dilution

                    29
grounds."); Gingles v. Edmisten, 

, 367
n.27 (E.D.N.C. 1984) ("[I]n some elections the pendency of
this very litigation worked a one-time advantage for black
candidates in the form of unusual organized support by
white leaders concerned to forestall single-member
districting . . ..").

Ronald Greene won against a white candidate in a mid-
term election with exceptionally low voter turnout. Greene
was perceived as being aligned with white suburban
interests, presumably because of his strong opposition to
mandatory school reassignment. On the morning of the
election, a flyer was distributed stating that the white
candidate, Fiske, had withdrawn from the race. Fiske
testified that this had a major impact on the election
because the timing made it impossible for him to respond
that the statement was untrue.

We see that of ten black candidates to run in Red Clay in
the years 1981 to 1991, only three succeeded: one (Roberts)
in a never-repeated plurality win, one (Scotton) by defeating
another black candidate, and one (Greene) in a little-
noticed mid-term election. This hardly exemplifies
substantial or consistent electoral success. On the
contrary, it demonstrates legally significant white bloc
voting. The dismal picture is not improved by adding into
the mix the two white candidates characterized by the
district court as "minority-preferred," and upon which it
relied so much in reaching its ultimate result. The majority
acknowledges that Charles Cavanaugh was, in fact, not
minority-preferred, and the district court "should have
discounted this race as having no impact on minority
electoral success." Maj. op. at 17. As to the other white
candidate, Patricia Reinbold, of the two blacks identified by
her as important in her campaign, only one testified before
the district court. He had this to say in response to a query
as to why he supported Reinbold: "I guess I couldn't stand
Schneck, who was running against her." This is not the
sort of "minority sponsorship" we envisioned when, in
Jenkins I, we gave explicit instructions for determining
whether a white candidate is "truly the minority
community's representative of choice." Jenkins I at 1126.

                    30
Our decision today guarantees that minority voting rights
in Red Clay will continue to depend upon happenstance.
This is not what Lyndon Johnson envisioned when he
instructed his attorney general to write the "toughest voting
rights act that you can devise." Howell Raines, My Soul Is
Rested 337 (1977). It is not what Congress envisioned when
it gave the president that law, and then made it even more
effective with the 1982 amendments. And it is not what this
court envisioned when in Jenkins I we emphasized
repeatedly the rarity of a case where "an electoral system
that routinely results in white voters voting as a bloc to
defeat the candidate of choice of a politically cohesive
minority group is not violative of § 2 of the Voting Rights
Act." Jenkins I at 1135.

I believe that the plaintiffs' proof of the three crucial
Gingles factors and other elements that show impeded
access by black citizens to full participation in the Red Clay
School District more than meet the tests necessary to
establish a violation of Section 2 under the totality of the
circumstances. In light of the prolonged history of this case
and its remand in 1993, remand for further findings would
only aggravate an obviously unsatisfactory situation.
Accordingly, I would reverse the district court's judgment
for the defendants and remand the case to it to fashion
forthwith an appropriate remedy.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                    31