BLACK POLITICAL TASK FORCE v. GALVIN

300 F.Supp.2d 291 (2004) | Cited 3 times | D. Massachusetts | February 24, 2004

MEMORANDUM AND ORDER

In the spring of 2001, the Massachusetts legislature (the Legislature)redrew the dimensions of its House and Senate districts>. The end productof that endeavor — the 2001 Redistricting Act — forms thebackdrop for this litigation. The plaintiffs, African-American andHispanic voters, complain that the redistricting scheme, as it pertainsto House districts> in the Boston area, infringes upon rights guaranteedto them by the United States Constitution and deniesPage 2them equal opportunity "to participate in the political process andto elect representatives of their choice" in violation of section 2 ofthe Voting Rights Act (VRA), 42 U.S.C. § 1973 (b). After carefulconsideration of the parties' plenitudinous submissions, we conclude thatthe Redistricting Act deprives African-American voters of the rightsguaranteed to them by section 2 of the VRA. This conclusion renders itunnecessary to decide whether the Redistricting Act also (i) impingesupon the plaintiffs' constitutional rights, or (ii) deprives Hispanicvoters of the rights guaranteed to them by section 2.1

We start with certain background information and then turn to themerits. At that juncture, we apply the test set forth inThornburg v. Gingles, 478 U.S. 30 (1986), make aseries of factual findings, and explain why the plaintiffs prevail ontheir claim that the Redistricting Act infringes upon rights protected bysection 2 of the VRA. We conclude by discussing the development of anappropriate remedy.Page 3

I. BACKGROUND

We rehearse, in broad brush, the evolution of the Redistricting Act.Thereafter, we recount the procedural history of the litigation.

A. The Evolution of the Redistricting Act.

In the wake of the most recent decennial census, the Legislatureestablished a joint special committee on redistricting andreapportionment (the Joint Committee) to review existing legislativedistricts>, formulate revisions reflecting the increase in theCommonwealth's population from 6,016,425 to 6,349,097 residents, andredraw the district lines.2 This is standard operating procedure,designed to ensure compliance with the one-person, one-vote requirementof the United States Constitution. See Georgia v.Ashcroft, 123 S.Ct. 2498, 2516 n.2 (2003) ("When the decennialcensus numbers are released, States must redistrict to account for anychanges or shifts in population."); Gray v. Sanders,372 U.S. 368, 379 (1963) (locating the source of the one-person,one-vote requirement in the Equal Protection Clause of the FourteenthAmendment); see generally Black Political TaskForce v. Connolly, 679 F. Supp. 109, 123-30 (D. Mass.1988) (three-judge court) (outlining relevant public policies vis-a-visone-person,Page 4one-vote requirement in connection with 1987 reapportionment ofMassachusetts House of Representatives). Insofar as state legislativeseats were concerned, the Joint Committee functioned as an integratedbody in name only: the House delegation delineated the 160 new Housedistricts> and the Senate delegation independently delineated the fortynew Senate districts>. This case focuses exclusively on the redistrictingactivities of the House delegation (the Committee).

The Speaker of the House, Thomas M. Finneran, named RepresentativeThomas M. Petrolati to chair the Committee. With the one-person, one-voterequirement in mind, Petrolati and his fellow Committee membersdetermined that the ideal population for each House district was 39,682,plus or minus 5%, that is, somewhere between 37,698 and 41,666 persons.Aided by a specialized computer software program known as Maptitude, theythen embarked on the task of shifting the district lines to achieve thisnumerical goal. The Committee (and the House as a whole) apparently wascontent to leave the heavy lifting to Finneran, Petrolati, their aides,and the Committee staff. Finneran and Petrolati kept the process on ashort leash.3 As it evolved,Page 5Petrolati met one by one with the other 159 members of the House todiscuss their concerns. The Committee then held five public hearings atdivers locations throughout the Commonwealth. Apart from these publichearings, the Committee did not meet as a body. Moreover, Petrolatineither solicited nor accepted views from community leaders.

On October 18, 2001, the Committee filed House Bill No. 4700 (theCommittee Plan), which proposed 160 reshaped House districts>. Theaccompanying report described the Committee's redistricting goals, whichincluded complying with the one-person, one-vote requirement, ensuringcontiguity and compactness, acknowledging communities of interest, andattempting to create "minority influence districts>." With regard to thislast goal, the report explained: A number of [the newly proposed] districts> in Boston and Springfield contain a sizable majority comprising people of color. One proposed district of Boston presently has no incumbent and is over two-thirds minority. This increased the chances of there being an additional minority House member from the City of Boston.The Committee simultaneously wrote to House members, overPetrolati's signature, lauding the "new minority-majority districtPage 6in the Roxbury section of Boston,"4 touting the fact that itwas incumbent-free, and representing that minorities composed 68% of itspopulation.

Just four days later, the House debated the Committee Plan. Variousamendments were proposed and some were incorporated into the finalredistricting scheme (the Enacted Plan). Only one of these amendments isrelevant here — the so-called Fitzgerald Amendment.

This amendment had its genesis in Representative Kevin Fitzgerald'svacillation over whether to retire from the House. When the Committeedrafted its plan, it assumed that Fitzgerald had no interest in runningfor reelection. Consequently, it proceeded to move the residence ofRepresentative Elizabeth Malia from her previous district (the 11thSuffolk) to Fitzgerald's home turf (the 15th Suffolk). It then made the15th Suffolk a majority white district and retained the majority minoritycharacter of the 11th Suffolk district — the very majority minoritydistrict heralded in the Committee's report and letter of transmittal.

During the course of the floor debate, Fitzgerald (who is white) let itbe known that, contrary to the Committee's assumption, he planned to runfor reelection. To facilitate his candidacy, he offered an amendment thathad three notable effectsPage 7on the Committee Plan: it returned Malia's residence to the 11thSuffolk district, changed the contours of that district so that it wouldbe majority white, and kept the 15th Suffolk as a majority white districtin which Fitzgerald would be the lone incumbent. The House adopted thisamendment, thereby eliminating the majority minority district that hadbeen a selling point of the original Committee Plan.5 Like the otherfloor amendments, the Fitzgerald Amendment was reviewed only forcompliance with the one-person, one-vote requirement before beingenacted.

The Senate adopted the Enacted Plan without substantive debate (weimply no criticism; the House, with equal alacrity, embraced the Senate'shandiwork). On November 8, 2001, the governor signed the RedistrictingAct, Chapter 125 of the Acts of 2001, into law.

B. The Travel of the Case.

On June 13, 2002, African-American and Hispanic voters filed acomplaint in this court challenging the Redistricting Act as it appliesto House districts> in the Boston area.6 ThePage 8complaint alleged that the Enacted Plan transgressed the Fourteenthand Fifteenth Amendments as well as section 2 of the VRA. The chief judgeof the First Circuit convened this three-judge panel to hear anddetermine these claims. See 28 U.S.C. § 2284(a).

Pretrial discovery proved to be an intensive and demanding process,during which defense witnesses routinely invoked the protections oflegislative privilege when asked about the inner workings of theredistricting process. Despite this impediment, the plaintiffs mustered asufficient case to warrant a trial. At trial, the plaintiffs attempted toshow that the Redistricting Act set the boundaries of the House districts>in and around Boston in a way that impermissibly diluted the votingstrength of African-Americans and Hispanics, notwithstanding the growingpopulation of these two minority groups; that the Committee failed toprovide a reasonable explanation for the lines that were drawn; that theCommittee deviated from conventional redistricting procedures by, amongother things, allowing staffers from Speaker Finneran's office to playkey roles in the process and refusing to consult with minority communityleaders; and that the Committee simultaneously packed minority votersinto a tiny number of districts> and splintered the minority vote in other(more variegated) districts> in an effort to protect white incumbents.Page 9

With respect to this last point, testimony for the plaintiffs focusedlargely on what they described as the intentional packing of the 6thSuffolk House district and the stripping of African-American voters fromthe 11th, 12th, and 15th Suffolk districts>. The plaintiffs emphasizedthat, despite the increase in Boston's minority population from 1990 to2000 and the concomitant decrease in the white population, theRedistricting Act reduced the number of majority minority districts> whileincreasing the number of majority white districts>. They proffered twoalternate redistricting schemes as potential remedies for this allegedimbalance.

Under Massachusetts law, William F. Galvin, the secretary of state, ischarged with the administration and oversight of state elections.See Mass. Gen. Laws chs. 50-57. The plaintiffs filed their suitagainst several defendants, including Galvin in his official capacity.After the other defendants were dropped as a result of case managementdeterminations, Galvin became the sole defendant. Meanwhile, Petrolatiintervened and functioned as the legislative defendants' designatedrepresentative. As a practical matter, the plaintiffs' grievances arewith the House leadership. Having that in mind, we henceforth will referto Galvin and Petrolati as "the defendants."

Throughout the trial, the defendants maintained that the Enacted Planprovides African-American and Hispanic voters with equal opportunities toparticipate in the political process and toPage 10elect representatives of their choice. The defendants alsodisclaimed any intent or purpose to deny the plaintiffs equal votingopportunities on account of their race, and provided evidence indicatingthat incumbency protection was the driving force behind the drawing ofthe district lines. Finally, the defendants urged us to refrain fromengaging in an unnecessary "tinkering exercise" because the Enacted Planfurnishes African-American and Hispanic voters with electoralopportunities that are no worse than "roughly proportional" to theirpercentage of the relevant population.

Both sides presented extensive expert testimony in support of theirrespective positions. Following prolific briefing and final arguments, wetook the matter under advisement. This memorandum comprises our findingsof fact and conclusions of law.

II. ANALYSIS

Section 2 of the Voting Rights Act provides in pertinent part: (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 . . .

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open toPage 11 participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

42 U.S.C. § 1973 (emphasis supplied). To prevail under thisstatute, plaintiffs need not establish that the Legislature acted with adiscriminatory purpose; it suffices to prove that the contested standard,practice, or procedure has a discriminatory effect. Bush v.Vera, 517 U.S. 952, 976 (1996); Gingles, 478 U.S. at35-36. We caution, however, that section 2 does not turn electoralpolitics into an elaborate series of quotas. Despite its focus onresults, the statute does not create a right to have members of aprotected class actually elected in numbers equal to their proportion ofthe population. Johnson v. De Grandy, 512 U.S. 997,1014 n.11 (1994). It merely guarantees minorities a level playing field,that is, an opportunity for victory at the polls equal to the opportunityenjoyed by others. Vecinos de Barrio Uno v. City ofHolyoke, 72 F.3d 973, 979 (1st Cir. 1995).

Although relieved of the burden of proving intentional discrimination,plaintiffs who bring section 2 challenges still face formidable hurdles.In Gingles, the Supreme Court limned three threshold conditionsthat must be fulfilled in order to mount a successful vote dilutionclaim. First, the plaintiffs must demonstrate that they are part of aminority group that is "sufficiently large and geographically compact toconstitute aPage 12majority in a single-member district." 478 U.S. at 50. Second, theymust show that the group is "politically cohesive." Id. at 51.Third, they must prove "that the white majority votes sufficiently as abloc to enable it — in the absence of special circumstances, suchas the minority candidate running unopposed — usually to defeat theminority's preferred candidate." Id. (citation omitted).

Plaintiffs who satisfactorily complete this three-step pavane are nothome free. Gingles demands a further sifting of relevant facts.This wide-ranging inquiry must dig into the totality of thecircumstances, starting with the litany of factors delineated in theSenate report that accompanied passage of the 1982 amendments to section2. Id. at 43-46. The list includes (i) the extent of anyhistory of official discrimination at the polls in the relevantjurisdiction; (ii) the frequency with which members of the minority grouphave been elected to public office in that jurisdiction; (iii) thepresence of voting practices or procedures that stand as obstacles tominority participation; (iv) the extent to which members of the minoritygroup must endure the effects of discrimination in such fields aseducation, employment, and health care; (v) the level of responsivenessexhibited by elected officials vis-a-vis the particular needs of theminority group; and (vi) the magnitude of racially polarized votingwithin the relevant jurisdiction. See S. Rep. No. 97-417, at28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07.Page 13

Comprehensive as this compendium may appear, it is not exclusive; otherfactors may be equally instructive in particular cases. One such factoris proportionality — the relationship between the number ofmajority minority voting districts> and the minority group's share of therelevant population. De Grandy, 512 U.S. at 1000, 1014 n.11.Another is related to causation — the extent to which influencesapart from racial bias may have caused the white bloc voting identifiedby the third prong of the Gingles formulation. SeeVecinos, 72 F.3d at 983 & n.4 (noting that other possibleinfluences may include "organizational disarray, lack of funds, want ofcampaign experience, the unattractiveness of particular candidates, orthe universal popularity of an opponent").

When all is said and done, the critical issue in a vote dilution caseis whether the challenged districting> scheme deprives minority voters ofan equal opportunity to participate in the electoral process and to electcandidates of their choice. Id. at 980. In the pages thatfollow, we conduct our assessment of the plaintiffs' case, using theGingles framework.

A. Numerosity.

The overarching purpose of the first Gingles precondition isto ensure that, in the absence of the challenged practice, procedure, orstructure, the minority group would have the potential to elect arepresentative of its choice in the relevantPage 14political subdivision. See Growe v.Emison, 507 U.S. 25, 40 (1993) (extending the Ginglesrubric to single-member districts>); see alsoGingles, 478 U.S. at 50 n.17 (observing that without thisshowing, the plaintiffs cannot claim to have been injured by thechallenged practice, procedure, or structure). In a vote dilution case,this showing requires the plaintiffs to demonstrate that an effective andfeasible remedy exists. Typically, this demonstration is accomplished byproffering an alternative plan that contains more than the existingnumber of reasonably compact districts> with minority populations largeenough to elect minority-preferred candidates. See,e.g., De Grandy, 512 U.S. at 1008. An inquiring courtnormally will use the plaintiffs' alternative plan as a benchmark againstwhich to take the measure of the challenged scheme. SeeHolder v. Hall, 512 U.S. 874, 880 (1994).

At first blush, this aspect of the Gingles test seems fairlystraightforward. Appearances can be deceiving, however, and courts havestruggled with a host of complexities implicated by its formulation.Although we need not catalogue all of these complexities, a few of themare of particular pertinence here, and, thus, deserve furtherelaboration.

We note, first, that the Supreme Court has explicitly declined toresolve whether plaintiffs may satisfy the first prong ofGingles with evidence that the minority group, although notcomprising an absolute majority of the population within a givendistrict, nevertheless wields enough influence that it usually willPage 15be able to elect candidates of its choice with the help ofcrossover votes. See, e.g., De Grandy, 512U.S. at 1008-09 (leaving this question open); Voinovich v.Quilter, 507 U.S. 146, 154 (1993) (same); Growe, 507U.S. at 41 n.5 (same). Because this issue is not outcome-determinative inthis case, we assume, arguendo, the correctness of the bright-line rulefollowed by most courts: a minority population is sufficiently large toconstitute a "majority" for the purposes of the first Ginglesprecondition only if it comprises more than 50% of the relevantpopulation in the affected district. See, e.g.,Valdespino v. Alamo Heights Indep. Sch. Dist.,168 F.3d 848, 852-53 (5th Cir. 1999); Cousin v.Sundcruist, 145 F.3d 818, 828-29 (6th Cir. 1998);McNeil v. Springfield Park Dist., 851 F.2d 937,943-45 (7th Cir. 1988); Parker v. Ohio, 263 F. Supp.2d 1100,1104-05 (S.D. Ohio) (three-judge court), aff'dmem., 124 S.Ct. 574 (2003).

This does not mean that the existence of such "influence" or"crossover" districts> is entirely inconsequential to the case; they arerelevant in assessing the totality of the circumstances, seeVecinos, 72 F.3d at 979 n.2, 990-91, and we shall return tothem in that setting. However, we reject the defendants' effort to useinfluence or crossover districts> as a means of undercutting theplaintiffs' showing on the first Gingles precondition (by, forexample, pointing to districts> with African-American populations justunder the 50% line to boost the number of "effective" majority minoritydistricts> created by the Enacted Plan). These concernsPage 16are adequately accounted for not only in addressing the totality ofthe circumstances but also in the analysis required by the thirdGingles precondition. After all, if African-American voters arein fact able to convert influence or crossover districts> into "effective"majority minority districts>, this circumstance should result in theplaintiffs' failure to prove that majority white bloc voting regularlyoperates to defeat the preferred candidate of African-American voters.

A second unresolved issue is whether, in determining the size of theminority group in a particular district, a court should concern itselfwith the percentage of the minority population that is simply of votingage (VAP) or the percentage of the minority population that is composedof citizens who are of voting age (CVAP). To date, the SupremeCourt has refrained from choosing between these indices. SeeDe Grandy, 512 U.S. at 1021 n.18, 1023 (forgoing a decisionbetween VAP and CVAP in assessing proportionality, but using VAPfigures); cf. Growe, 507 U.S. at 38 n.4 (declining tochoose between total population and VAP). Although the First Circuit hasnot spoken directly to the point, other courts of appeals lately havetended to support the use of CVAP data, at least when that data isreadily available and its use is not contraindicated by othercircumstances. See, e.g., Perez v.Pasadena Indep. Sch. Dist., 165 F.3d 368, 372 (5th Cir. 1999);Negrón v. City of Miami Beach, 113 F.3d 1563,1568-69 (11th Cir. 1997); see also Barnettv. City of Chicago, 141 F.3d 699, 704-05Page 17(7th Cir. 1998) (stating, in dictum, that CVAP is the properyardstick for measuring proportionality in a section 2 vote dilutioncase).

The cardinal purpose of the first Gingles precondition is todetermine whether minority voters have the potential to electpreferred candidates. See Gingles, 478 U.S. at 50n.17 (referring to the potential of minority voters to electrepresentatives). Because non-citizens cannot vote (or even register tovote), the use of CVAP data, when and where available, seems moreconcinnous than the use of VAP data. Here, however, we need not make adefinitive choice. For one thing, no one has pointed to any materialdifferences in the available VAP and CVAP figures for African-Americansin Boston and, according to the defendants' expert, non-Hispanic whitesand non-Hispanic blacks register to vote at similar rates (56% and 57% ofthe voting age population, respectively). For another thing, VAP figuresmay be unreliable when analyzing Hispanic populations, where there aregreater numbers of recent immigrants, see Negrón, 113 F.3d at 1568, but there is no serious reason to believe thatthey are less reliable when analyzing African-American populations.7Then, too, the Legislature used only VAP data in drawing the EnactedPlan, and thePage 18parties have provided only VAP data for certain analyses (e.g., thesecond and third Gingles preconditions). For these reasons, weemploy VAP data in our ensuing analyses. We note, however, that we wouldreach the same result vis-a-vis the first Gingles preconditionutilizing either set of data (VAP or CVAP).

A third unresolved issue concerns the appropriate method ofcharacterizing voters as members of a particular race. Unlike previouscensuses, the 2000 census permitted interviewees to identify themselvesas members of more than one race. This means that there are now twodifferent methods for assigning persons to racial groups. Under the firstmethod — referred to as the "alone" method — a person who hasidentified himself or herself only as "black" will be counted as black,but a person who has checked both the box for "black" and the box for,say, "Asian" will be counted only as multiracial. Under the second method— referred to as the "combined" or "combo" method — a personwho has identified himself or herself as a member of more than one racewill be counted in every such category (in our earlier example, theresponder will be counted as both black and Asian). The plaintiffs urgeus to use the alone method because it avoids an overcount (by placing anindividual voter in two or more racial categories, the combo methodresults in totals exceeding 100% of actual responders) while thedefendants urge us to use the combo method because it is morecomprehensive in its representation of voter identities (it places in anygiven racial category everyone who considers himself orPage 19herself a member of that race). This is a recent development inelection law and the jurisprudence is embryonic. The Supreme Courtappears to have employed combo (or combo-like) data in Georgiav. Ashcroft, 123 S.Ct. at 2507 n.1, but it did so with regardto a section 5 preclearance claim, not a section 2 vote dilution claim,and we regard the question as open. Indeed, there may well be no singlerule; context and the availability of data may determine which methodbest reflects the realities of a specific situation.

In all events, the circumstances of this case render it unnecessary tochoose one method over the other. As the defense acknowledged, throughits expert witness and in its trial brief, there are no great differencesin this case between the two data sets, at least insofar as the secondand third Gingles preconditions are concerned.8Accordingly, we will provide both sets of data with respect to the firstGingles precondition in order to demonstrate that the choice isnot outcome-determinative. As for the remaining Ginglespreconditions and the totality of the circumstances, we will use anadmixture of alone and combo data,Page 20determined primarily by the form in which the parties havefurnished relevant data to us.

We turn now to the proof on the first Gingles precondition.At trial, the plaintiffs established that the African-American populationin Suffolk County — which encompasses all of the city of Boston anda few environs — is sufficiently large and compact to allow for thecreation of more majority black districts> than currently exist. Using thealone method, the Enacted Plan provides for one majority black districtin Suffolk County (the 6th) whereas Plan No. 2 — which we deem tobe the more useful of the plaintiffs' two submissions — providesfor two majority black districts> (the 6th and the 12th). Using the combomethod, the Enacted Plan provides for three majority black districts> inSuffolk County (the 5th, 6th, and 12th) whereas Plan No. 2 provides forthe same three majority black districts> plus a fourth (the 11th).

We enumerate the specifics needed to support these conclusions inAppendix A (attached hereto and incorporated by reference herein). Wenote, moreover, that the plaintiffs would be equally successful inproving the first Gingles precondition if we were to use CVAPdata instead of VAP data. See Appendix B (attached hereto andincorporated by reference herein). To cinch matters, the districts>illumined in Plan No. 2 are compact, meet applicable standards ofcontiguity, and comply fully with the one-person, one-vote requirement.Page 21

The defendants' counter-arguments are unpersuasive. First, they insistthat the proper benchmark for the first Gingles precondition isthe plan initially offered by the plaintiffs (the so-called Harmon Plan),not Plan No. 2. In this respect, the defendants lament that they firstbecame aware of Plan No. 2 after the close of discovery. They add thatthey received critical documents relating to this new plan only two weeksbefore trial began.

Their argument is unconvincing. In the first place, the defendants haveshown no unfair surprise; Plan No. 2 is simply a new iteration of datalong in the defendants' possession. Perhaps more importantly, inrequiring plaintiffs "to demonstrate that [the minority group] issufficiently large and geographically compact to constitute a majority ina single-member district," Gingles, 478 U.S. at 50, the Courtfocused on the potential of minority voters to elect representatives oftheir choice in some hypothetical district, seeVecinos, 72 F.3d at 979. While plaintiffs must offer analternative plan, they may do so, with leave of the court, at any time upto the end of trial. Cf. Barnett, 141 F.3d at 702("The plaintiff is not required to propose an alternative map that is`final' in the `final offer' arbitration sense, where the parties cannotmodify their offers once they have denominated them final. . . .").Had the defendants so desired, they too could have processed the censusdata and discovered, early in thePage 22redistricting effort, the possibility of creating an additionalmajority black district.

The defendants' second counter-argument attacks Plan No. 2 frontally.This plan, the defendants aver, fails to show that African-Americanvoting opportunities would be "significantly diminished" if the EnactedPlan were to remain in effect. Since two of the majority black districts>configured by Plan No. 2 fall just over the 50% mark (at least when oneuses VAP data and the combo method) and one of the Enacted Plan'sdistricts> falls slightly under that mark (42.59%, using the same data andmethod), they asseverate that Plan No. 2 does precious little to enhanceAfrican-American voting opportunities in Suffolk County.

We reject this reasoning. Even were we prepared to indulge thedefendants' ipse dixit that 42.59% is "only somewhat under the line," thedefendants' argument overlooks that neither the Supreme Court nor theFirst Circuit has held that the first Gingles precondition isconcerned with districts> that fall under the 50% majority minority cutoffpoint. Moreover, the Gingles line of cases only requiresplaintiffs to show the feasibility of one additional majority minoritydistrict. See Vecinos, 72 F.3d at 985-86. Theplaintiffs have cleared that hurdle here. We find, therefore, that theplaintiffs have carried the devoir of persuasion with regard to the firstprong of Gingles.

B. Cohesiveness and Bloc Voting.Page 23

The second and third Gingles preconditions demand slightlydifferent analyses of substantially similar data. For that reason, wethink it convenient to discuss them together. We remain aware, however,that each of the two inquiries serves a distinct purpose.

The second Gingles precondition focuses on cohesiveness. Itmeasures the potential of minority voters to elect representatives oftheir choice were they presented with an ideally configured district. Thepremise is that unless a minority group is politically cohesive, it willnot have the voting strength necessary to achieve electoral success,notwithstanding favorable numbers. See Growe, 507U.S. at 40-41; Gingles, 478 U.S. at 51.

The third Gingles precondition focuses on majoritarian blocvoting. It delves into the cause of minority voters' lack of success inexisting districts>. The premise is that if a majority group votessufficiently as a bloc to enable it to impose its will and defeatminority-preferred candidates most of the time, the challenged practice,procedure, or structure is likely to be a cause of the minority group'simpotence at the polls. See Growe, 507 U.S. at 40-41;Gingles, 478 U.S. at 51.

To satisfy the second and third preconditions, plaintiffs typicallyoffer statistical evidence detailing the voting patterns of racial groupsin past elections. True to this profile, the plaintiffs' expert, Dr.Richard Engstrom, presented the results of his analysis of four BostonCity Council elections, one city-widePage 24district attorney election, and two Democratic primaries for Houseseats. The defendants countered with the testimony of Dr. Harold Stanley,who undertook to analyze the results of several House races (involving amix of primary and general election match-ups) and one city-wide districtattorney contest. We found both experts knowledgeable and both usedaccepted analytic tools, such as regression and homogeneous precinctanalyses. See Gingles, 478 U.S. at 52-53 (endorsingboth of these analytic approaches). Dr. Engstrom also employed a thirdmethodology, known as ecological inference — but we have chosen tofocus our attention on the two more conventional types of analysis.

Under the best of circumstances, combing through columns of statisticaldata is a daunting task for those of us untrained in the finer points ofan admittedly arcane science. Maintaining a focus on the inquiries posedby the second and third Gingles preconditions makes the taskmore manageable.

Refined to bare essence, the second precondition (political cohesion)asks whether the electoral data exhibits clear voting preferences on thepart of the minority group (here, African-Americans). Id. at56 ("A showing that a significant number of minority group membersusually vote for the same candidates is one way of proving the politicalcohesiveness necessary to a vote dilution claim. . . ."). The thirdprecondition (white bloc voting) requires a four-step inquiry: a courtmust (i) identify the candidates most preferred by thePage 25minority group; (ii) observe whether the white majority votes as abloc for other candidates; (iii) determine whether the white bloc vote isof a magnitude that usually suffices to defeat minority-preferredcandidates; and (iv) assess whether any of the electoral results shouldbe discounted because of special circumstances. Id. at 56-57;cf. Jenkins v. Manning, 116 F.3d 685, 691(3d Cir. 1997) (outlining a similar inquiry but dividing it into three,rather than four, parts).

Although the bulk of the analysis necessarily functions at the level ofindividual elections, courts must be careful not to become preoccupiedwith the trees and thereby lose sight of the forest. The ultimate answerto the question of whether racially polarized voting exists to asignificant degree will crystallize only after the court steps back toview the landscape as a whole. Although the number of elections that mustbe studied will vary from case to case, the Supreme Court has cautionedthat a pattern of polarized voting extending over a period of time iscustomarily more probative than the results of any single election.Gingles, 478 U.S. at 57 & n.25; accordVecinos, 72 F.3d at 984 (explaining the need to examine votingpractices over time because "[i]n this enlightened day and age, bigotsrarely advertise an intention to engage in race-conscious politics").Above all, an inquiring court should resist the temptation to confineitself to raw numbers in a particular election, instead endeavoring tomake a practical, commonsense appraisal of all the evidence.Vecinos, 72 F.3d atPage 26989. With these precepts in mind, we begin our evaluation of thedata.

1. The Multi-Race Endogenous Elections. Afterhaving conducted an exhaustive review of the case law and thecircumstances of this litigation, we conclude that the most probativeelections for our purposes are likely to be multi-race endogenouselections. By multi-race, we mean those elections in which at least onewhite candidate vied for office against at least one African-Americancandidate. By endogenous, we mean House elections in the seventeenaffected Suffolk County districts>.

Our decision to accord more weight to multi-race elections is supportednot only by common sense but also by the case law. SeeRural West Tenn. African-Am. Affairs Council v.Sundguist, 209 F.3d 835, 840-41 (6th Cir. 2000) (approving adecision to accord greater weight to results of black-versus-whiteelections); Jenkins, 116 F.3d at 692, 694-95 (affirming adecision to discount same-race elections); Westwego Citizens forBetter Gov't v. City of Westwego, 872 F.2d 1201, 1208 n.7(5th Cir. 1989) ("[T]he evidence most probative of racially polarizedvoting must be drawn from elections including both black and whitecandidates."); see generally Vecinos, 72F.3d at 988 n.8 ("[E]lections in which minority candidates run are oftenespecially probative on the issue of racial bloc voting."). We understandthat black voters sometimes may consider a white candidate theirPage 27representative of choice and vice-versa. If no candidate of thevoter's race is in the field, however, that support may well representsomething less than a true preference. Cf. Gingles,478 U.S. at 68 (plurality op.) (stating, as a fact, "that race of voterand race of candidate is often correlated"). Indeed, the choice presentedto minority voters in an election contested only by two white candidatesis somewhat akin to offering ice cream to the public in any flavor, aslong as it is pistachio.

The VRA focuses on the opportunity of minority voters to electrepresentatives of their choice, and we believe that this opportunity isbest and most easily measured in elections that offer black voters thechance to support a viable black candidate against a viable whitecandidate.9 See Sanchez v. Colorado,97 F.2d 1303, 1317 n.24 (10th Cir. 1996). At the same time, we recognizethe obvious: in most instances, the best indicator of how voting operatesin a particular type of election is how voting historically has operatedin that type of election. See Rural West Tenn., 209F.3d at 841; Johnson v. Hamrick, 196 F.3d 1216, 1222(11th Cir. 1999); see also Vecinos, 72 F.3dat 990 (suggesting that, in general, endogenous elections are moreprobative thanPage 28exogenous elections). Consequently, we focus initially on multi-raceendogenous elections.

We commence our canvass of this electoral subset with the 1994Democratic primary election in what was then the 5th Suffolk Housedistrict. The evidence shows that black voters preferred the blackcandidate (Golar-Richie) while white voters preferred the white candidate(Roman). Golar-Richie prevailed. On these facts, it appears that raciallypolarized voting existed, but that white bloc voting lacked the muscle todefeat the black-preferred candidate.

In a typical district, these results would supply evidence tending toestablish the second Gingles precondition and to defeat thethird. But the 5th Suffolk, as it existed in 1994, was not a typicaldistrict. Rather, it was a majority black district in whichAfrican-Americans comprised 50.87% of the VAP (based on 1990 censusfigures). This constitutes a special circumstance that robs the electionof any probative force with respect to the third Ginglesprecondition. After all, it should come as no surprise that ablack-preferred candidate was successful in a majority black districtwith racially polarized voting, which is why Gingles's thirdprong directs the court's attention to those districts> in which there isa white majority. See Gingles, 478 U.S. at 51;see also Growe, 507 U.S. at 40 (explainingthat a showing of white bloc voting is "needed to establish that thechallenged districting> thwarts a distinctive minority vote byPage 29submerging it in a larger white voting population"); cf.De Grandy, 512 U.S. at 1003-04 (indicating that standardbloc-voting analysis must give way "in a district where a given minoritymakes up a voting majority").

In sum, we believe that the results of this election support theplaintiffs' allegation that African-Americans in Boston are politicallycohesive without in any way contradicting their allegation that whitebloc voting usually serves to defeat black-preferred candidates inmajority white districts>. See Old Person v.Cooney, 230 F.3d 1113, 1122 (9th Cir. 2000) (concluding that adistrict court erred in drawing "no distinction between jurisdictions inwhich Indian voters constitute a majority of the voting age population,and those jurisdictions in which white voters were in the majority" whileanalyzing the third Gingles precondition).

We turn next to the 1996 Democratic primary election in the samedistrict. This election was largely a reprise of the 1994 primary.African-American voters preferred Golar-Richie, white voters preferredRoman, and Golar-Richie won. For the reasons explicated above, weconclude that these results constitute evidence of political cohesivenessamong African-American voters, but do not speak to the existencevel non of legally significant white bloc voting.

The 2002 general election for the House seat in the 5th Suffolkdistrict pitted a black candidate (St. Fleur) against aPage 30white candidate (Chaparro). In this election, both black and whitevoters favored St. Fleur (who ran on the Democratic ticket) over Chaparro(who ran as an independent).

Here, too, we are satisfied that special circumstances explain thesuccess of the black-preferred candidate (and, therefore, that theresults of this election have scant probative value). The reasoning thatled us to discount the prior two elections does not apply to thiscontest. The election occurred in 2002 and the Enacted Plan had revisedthe district lines. As such, the district had 49.73% black VAP on thealone method and a 55.93% black VAP on the combo method. Although theseestimates leave us uncertain whether the district fairly can becharacterized as a majority black district, the political climate inBoston — an area in which the vast majority of citizens voteDemocrat — makes general election results unreliable barometers ofthe second and third Gingles preconditions. Based on electionstatistics compiled by the Elections Division of the Office of theMassachusetts Secretary of State, we take judicial notice, Fed.R.Evid.201, of the fact that no Republican, independent, or third-partycandidate has been elected to the House from a representative districtwholly or partly within Boston since 1992. Prior to the election ofRepresentative Althea Garrison in that year, none had been elected since1970. Because political allegiance can be a tie that binds every bit asmuch as race, a determination that black and white voters in Bostonpreferred the Democratic candidate at a generalPage 31election is hardly news. In our estimation, that fact says lessabout race than about partisan politics.

The relationship between race and party politics is a complicatedmatter and the removal of partisanship from the equation helps to isolaterace for purposes of a vote dilution inquiry. SeeSanchez, 97 F.3d at 1317 n.25 (noting that analysis ofDemocratic primary elections helps counter the argument that, in aheavily Republican district, "Hispanics don't lose elections, Democratsdo"). For this reason, we deem the results of this electionunilluminating.

This brings us to the 1998 House primary in the 9th Suffolk district.In this race, two white candidates (Branson and Walsh) ran against anAfrican-American candidate (Rushing). Rushing proved to be the preferredcandidate of both black and white voters. The rub, however, is that bythe time of the 1998 primary, Rushing was an eight-term incumbent who hadserved in the House for sixteen years. Incumbency is a specialcircumstance that must be weighed, sometimes heavily, in assaying theprobative value of election results. See Gingles, 478U.S. at 60; Old Person v. Brown, 312 F.3d 1036, 1048n.13 (9th Cir. 2002), cert. denied, 124 S.Ct. 566 (2003).Consequently, we decline the defendants' invitation to treat thiselection as disproving the plaintiffs' allegation that legallysignificant white bloc voting exists in Boston.Page 32

The 2000 general election in the same House district is no morehelpful. Both black and white voters preferred the black incumbent,Rushing, who won over his white opponent (Ashcroft) in a landslide. Wediscount this result both because of Rushing's long-time incumbency andbecause he had the Democratic nomination (Ashcroft ran as a Libertarian).

In 2002, there were three candidates in the Democratic primary in the11th Suffolk House district. Two were white (Malia and McLaughlin) andone was black (Payne-Thompson). The statistical evidence satisfies usthat Malia, who won the election, was the preferred candidate of whitevoters. The record is tenebrous, however, as to which candidateAfrican-American voters preferred because the best available regressionanalysis produced a negative roll-on. A roll-on is the percentage of aparticular group's voters estimated to have cast a ballot in the contest.A negative roll-on shows that voters in the studied subgroup chose, inlarge numbers, not to vote for any candidate in the election in question.Thus, a negative roll-on is a powerful indicator that no candidate in therace was that subgroup's candidate of choice. Given the negative roll-onfor African-Americans here, we conclude that this factor rendersunreliable the estimates of how black votes were cast.

In 1990, two white candidates (Finneran and Bennett) ran against ablack candidate (Johnson) in the Democratic primary for the House seat inthe 12th Suffolk district. Both white and blackPage 33voters preferred Finneran — a legendary political powerhousewho became Speaker of the House of Representatives a few years later.Although the election results tend to argue against racial polarization,they constitute rather weak proof in the circumstances of this case.

The final election in this grouping is the 2002 general election in the15th Suffolk House district. This three-way race involved an Hispaniccandidate (Sanchez — who had the Democratic endorsement), a blackcandidate (Chidi, who ran as an independent), and a white candidate(Clifford, who also ran as an independent). Although white voterspreferred Sanchez, we cannot draw any reliable conclusions from theseresults because regression analysis produced a negative roll-on estimatefor the African-American vote.

This concludes our survey of the results of the multi-race endogenouselections. For our purposes, the 1994 and 1996 primary elections in theformer 5th Suffolk House district tend to prove that African-Americansvote as a politically cohesive group. Apart from that, the results arelargely uninformative. Accordingly, we find it necessary to turn tomulti-race exogenous elections as the next best available source ofevidence to help us discern whether a pattern of racially polarizedvoting exists in Boston.

2. Multi-Race Exogenous Elections. In theabsence of a sufficient number of useful multi-race endogenous elections,thePage 34next most ferfile field is composed of multi-race exogenouselections. By this, we mean those elections in which at least one blackcandidate competed against at least one white candidate for an electedoffice (other than a House seat) in the general geographic area involvedin the plaintiffs' vote dilution challenge. Courts, as a matter ofdiscretion, have the authority to consider exogenous elections when facedwith a paucity of meaningful endogenous elections. See,e.g., NAACP v. Fordice, 252 F.3d 361,370-71 (5th Cir. 2001); Askew v. City of Rome,127 F.3d 1355, 1381 n.13 (11th Cir. 1997) (per curiam); Cano v.Davis, 211 F. Supp.2d 1208, 1235 (C.D. Cal. 2002) (three-judgecourt) (per curiam). They must, however, furnish explanations for whyparticular exogenous elections reveal reliable information about relevantvoting patterns. Vecinos, 72 F.3d at 990.

The affected area here is Suffolk County (and, in particular, Boston).The plaintiffs urge us to consider several exogenous elections asevidence of African-American political cohesion and white bloc voting.Specifically, they point to four at-large Boston City Council electionsand one race for Suffolk County district attorney.

The defendants argue strenuously against consideration of theseexogenous elections. They contend that the different circumstancessurrounding the elections render the retrieved data of dubious value in avote dilution case designed to test the composition of the House ofRepresentatives.Page 35

This argument has a patina of plausibility. The dynamics of theproffered exogenous elections are somewhat different than those of Houseelections. For instance, Boston City Council elections are non-partisan,certain candidates run city-wide for four at-large seats instead ofdistrict by district, and each voter may cast up to four votes for thoseseats.10 The Suffolk County district attorney election also differsfrom a prototypical House election. Although that election is partisanand involves only a single vote for a single office, the politicalsubdivision is slightly different; whereas the plaintiffs' vote dilutionclaim concentrates on those House districts> that lie at least partlywithin the city of Boston, the district attorney election involves votesfrom all over Suffolk County (a region that includes Boston, Chelsea,Revere, and Winthrop, and, more to the point, includes two Suffolk CountyHouse districts> that are not within the scope of the plaintiffs'challenge). The district attorney election is also different in that itdoes not include votes from Milton (although Milton is in Norfolk County,the Committee tacked several precincts from that community onto SpeakerFinneran's 12th Suffolk district). And, finally, all of the exogenouselections that the plaintiffs urge us to consider may differ from Houseelections in terms of more amorphous factors (e.g., the importance thatvoters assign toPage 36the office or the campaign strategy that a candidate is likely toemploy).

In the end, however, we think that the similarities between theproffered exogenous elections and the elections at issue in this case aresufficiently compelling to outweigh the differences. Both sets ofelections are for offices with comparable levels of importance within thecommunity. They concern much the same constituencies, and we believe thatthere is a considerable measure of truth in Dr. Engstrom's observationthat racially polarized voting rarely stops at electoral borders. Thus,we are confident that an in-depth consideration of the multi-raceexogenous elections may allow us to glean meaningful insights into thevoting patterns and preferences of Boston-area residents. We turn, then,to those elections. As we do so, we note that although the defendantshave scoffed at the probative value of these elections, they have notseriously questioned the accuracy or integrity of the plaintiffs'regression analysis.

We begin with the 1995 councilmanic election. There, a black candidate(Jones) and seven white candidates competed for four at-large seats.Jones received over 81% of the black vote,11 and the correlationcoefficients indicate political cohesion amongPage 37African-American voters. However, Jones received only 20% of thenon-minority vote12 and he failed to win a seat. In our judgment, theresults of this election — Jones ranked first among black votersbut last among white voters — evince both a pattern of cohesiveblack voting and a pattern of majoritarian bloc voting sufficientlystrong to defeat the black-preferred candidate.

The results of the 1997 councilmanic election reinforce these findings.There, a lone black candidate (Jones) faced seven white candidates in arace for four available seats. Jones received 88.5% of the black vote andwas the most prolific vote-getter in that segment of the community. Notsurprisingly, the correlation coefficients once again indicate politicalcohesion among African-American voters. Jones nonetheless failed tofinish in the top four (and, hence, lost the election), receiving only27.8% of the non-minority vote (ranking as the sixth most popularcandidate among non-minority voters). We find that this election providesadditional evidence of both cohesive African-American voting andmajoritarian bloc voting powerful enough to defeat a black-preferredcandidate.

The results of the 2002 election for Suffolk County district attorneymilitate in the plaintiffs' favor. In thisPage 38contest, a black candidate (Jenkins) ran against a white candidate(Conley).13 Jenkins received 99.6% of all African-American votes andthe correlation coefficients indicate a very high degree of politicalcohesion among African-American voters. Jenkins nonetheless failed to winelection because he received only 22.1% of the non-African-Americanvote.14 The results of this election exhibit both African-Americancohesiveness and white bloc voting sufficiently staunch to defeat theblack-preferred candidate. We give diminished weight to the indication oflegally significant white bloc voting, however, as Conley ran as anincumbent (he had been appointed to fill a vacancy) and carried theDemocratic party's endorsement. As we already have explained,see supra Part II(B)(1), the Democratic imprimaturhas been a salient factor in general elections held within SuffolkCounty. Incumbency, too, usually helps to propel a candidacy.

We also have examined the results of two multi-race exogenous electionstouted by the defendants: the 2003 councilmanic election and the 1994election for Suffolk County district attorney. The first of thesewitnessed two blackPage 39candidates, an Hispanic candidate, and five white candidates vyingfor four at-large city council seats. The Hispanic candidate (Arroyo) waselected with 76.1% of the black vote and 38.4% of the non-minority vote,ranking him first among black voters and fifth among non-minority voters.The correlation coefficients for this election indicate the presence ofpolitical cohesion among black voters. The white vote, however, wassufficiently scattered that it did not operate to defeat theblack-preferred candidate. Therefore, the election hints at the absenceof legally significant white bloc voting (and, to that extent, cuts inthe defendants' favor).

The 1994 Suffolk County district attorney election matched a whitecandidate (Malone) against a black candidate (Martin) for the singleseat. Martin ran on the Republican ticket, but he ran as an incumbent(originally having been appointed to the position by a Republicangovernor). Despite the fact that Malone had the Democratic endorsement,Martin was the preferred candidate of both black and white voters. He wonthe election handily. This election was plainly dominated by anattractive, well-known incumbent whose appeal cut across racial lines.Consequently, we find the results of this election uninstructive forpurposes of either the second or third Gingles precondition.

Taken in the ensemble, the results of these multi-race exogenouselections provide compelling evidence that, in the Boston area,African-Americans vote cohesively, yet the white majorityPage 40votes sufficiently as a bloc to enable it, most of the time, todefeat black-preferred candidates.

3. Single-Race Endogenous Elections. Althoughwe have concluded that, in general, the results of single-race endogenouselections are less probative than other available data, we believe thatthose results ought to be mined in hopes that they may yield nuggets ofuseful information about voting patterns in the Boston area.Cf. Vecinos, 72 F.3d at 988 n.8 (suggesting that"evidence exhumed from `white only' elections may still be relevant inassessing the totality of the circumstances in a vote dilution case"prosecuted by Hispanics).

Of the nineteen elections in this category — which include notonly white-versus-white and black-versus-black elections but also twoelections that pitted white candidates against Hispanic candidates— only fourteen produced statistically valid estimates. Ten ofthese were general elections (and, thus, of little utility to us, forreasons previously explicated). Three of the remaining four (the 1998 and1999 Democratic primaries in the 5th Suffolk House district and the 2000Democratic primary in the 6th Suffolk House district) took place inmajority black districts> and, thus, cannot tell us very much about thethird Gingles precondition.

This winnowing process leaves only the 1994 Democratic primary in the15th Suffolk House district. That election pittedPage 41two white candidates against one another. African-American voterspreferred Brookins (who lost) and white voters preferred Fitzgerald (whoprevailed). These tallies indicate the presence of both African-Americanpolitical cohesion and legally significant white bloc voting.

4. Single-Race Exogenous Elections. Finally,we have examined the results of one single-race exogenous election: the2001 election for Boston City Council. In that contest, an Hispaniccandidate (Arroyo) faced six white candidates for four at-large citycouncil seats. Although Arroyo received 52.7% of the black vote and 65.6%of the Hispanic vote, he received only 19% of the non-minority vote. Thisplaced him first among African-American and Hispanic voters, but onlysixth among other voters. Arroyo lost the election.

The regression results indicate the presence of both cohesiveAfrican-American voting and white bloc voting staunch enough to defeat ablack-preferred candidate. Despite these indications, however, we accordrelatively little weight to this evidence because the contest was bothsingle-race and exogenous.

5. Recapitulation. The evidence rehearsedabove, when evaluated in connection with the other evidence in this case,leads us to find that the plaintiffs have clearly and convincinglysatisfied the second Gingles precondition. The evidenceestablishes beyond peradventure that African-American voters in thePage 42Boston area are politically cohesive. The same evidence, taken as awhole, also suffices to show that white voters, who constitute a majorityin most districts>, vote sufficiently as a bloc to enable them, as ageneral rule, to defeat the black-preferred candidates. We find,therefore, that the plaintiffs also have satisfied the thirdGingles precondition.

C. Totality of the Circumstances.

Although satisfaction of the Gingles preconditions takes theplaintiffs a giant step closer to success on the merits, it does not takethem to the finish line. We still must canvass the facts needed to bringthe totality of the circumstances into proper perspective. SeeGingles, 478 U.S. at 79 (instructing trial courts "to considerthe totality of the circumstances and to determine, based upon asearching practical evaluation of the past and present reality whetherthe political process is equally open to minority voters") (citation andinternal quotation marks omitted). It will, however, be the rare case inwhich plaintiffs meet the Gingles preconditions and yet fail ontheir section 2 claim due to the totality of the circumstances.Vecinos, 72 F.3d at 983; Jenkins v. Red ClayConsol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1135 (3d Cir. 1993).

As would be expected, the relevant circumstances are those bearing uponwhether African-American voters in the affected districts> have the sameopportunities as other voters toPage 43participate in the political process and elect representatives oftheir choice. Our canvass includes the factors identified in the Senatereport, see supra, to the extent they are relevanthere (a few are not). It also includes several environmental factorspeculiar to this case.

One of the most revealing questions a court can ask in assessing thetotality of the circumstances is whether the affected districts> exhibitproportionality, that is, whether the number of majority minoritydistricts> is in proportion to the minority group's share of the relevantpopulation. This is to be distinguished from proportional representation,which speaks to the number of minorities elected to office. Whereasproportionality (or the lack thereof) is consistent with the calculusthat section 2 demands, "nothing in [section 2] establishes a right tohave members of a protected class elected in numbers equal to theirproportion in the population." 42 U.S.C. § 1973(b).

While a finding of proportionality does not create a safe harbor, itoften may be an important indicium that minority voters have an equalopportunity, regardless of racial polarization, to participate in thepolitical process and elect representatives of their choice.See De Grandy, 512 U.S. at 1017-20. A finding ofdisproportionality may well point in the opposite direction.Id. at 1020 n.17.

The defendants insist that the Enacted Plan results in no worse thanrough proportionality for African-American voters. TheyPage 44begin with the uncontroversial fact that the black population makesup somewhere between 20.36% and 22.07% of the relevant population,depending on whether one uses (i) VAP or CVAP figures, and (ii) the aloneor combo method of racial identification. They then claim that Dr.Engstrom admitted that African-American voters have an opportunity toelect representatives of their choice in four of the seventeen Housedistricts> that lie either wholly or partially within Boston's city limits(the 5th, 6th, 7th, and 12th Suffolk districts>). In an effort to inflatethis figure, the defendants argue that minorities —African-Americans or Hispanics or some combination thereof — haveample opportunity to elect their preferred candidates in five additionalloci (the 9th, 11th, 13th, 14th, and 15th Suffolk districts>). Thismeans, the defendants say, that nine of the seventeen districts> —or 52.94% — are functionally equivalent to majority minoritydistricts>.

Despite the defendants' creative mathematics, we find this constructtoo clever by half. First and foremost, it rests on a questionabledefinition of proportionality. In determining which districts> should becounted as "black districts>" for the purposes of proportionalityanalysis, the defendants include both those districts> in whichAfrican-Americans comprise over 50% of the relevant population and thosedistricts> in which black voters have a credible opportunity to electrepresentatives of their choice even though they do not make up themajority of the relevant population. They claim to find support for thismixing of blackPage 45majority districts> and black "opportunity districts>" in DeGrandy's acknowledgment that "there are communities in whichminority citizens are able to form coalitions with voters from otherracial and ethnic groups, having no need to be a majority within a singledistrict in order to elect candidates of their choice." Id. at1020.

The defendants are reading De Grandy through rose-coloredglasses. The De Grandy Court provided an explicit definition ofproportionality: "`Proportionality' as the term is used here links thenumber of majority-minority voting districts> to minority members' shareof the relevant population." Id. at 1014 n.11. The Court'ssubsequent application of this definition eliminates any conceivableambiguity in the term "majority-minority." In conducting itsproportionality analysis, the Court counted only thosedistricts> with "a clear majority of black voters," and did not count adistrict in which black voters, although not a majority, had been "ableto elect representatives of their choice with the aid of cross-overvotes." Id. at 1023. Consequently, De Grandy providesinadequate support for including "opportunity districts>" in aproportionality calculation.

Second, the defendants take Dr. Engstrom's testimony out of context. Tobe sure, Dr. Engstrom identified four of the districts> created by theEnacted Plan as "opportunity districts>" — but he did not suggestthat these either could or should comprise part of the gold standard fora proportionality analysis. In aPage 46contrary vein, he explained that a given district cansimultaneously be an "opportunity district" for more than one racialgroup, and he maintained that, applying the defendants' standardevenhandedly, the Enacted Plan created a vastly disproportionate numberof white "opportunity districts>" (at least fifteen of the seventeenchallenged districts> could be so categorized). We believe that this is avalid criticism of the defendants' approach. In our judgment, theircreative mathematics do not add up.

Let us be perfectly clear. We think that the incidence of influence orcrossover districts> bears on the totality of the circumstances, and wehave considered them in that context. We deem it encouraging thatAfrican-American voters in Boston have enjoyed a modicum of success inelecting candidates of their choice outside of majority black districts>.This is some indication that Boston has made inroads in "dismantl[ing]the barriers that wall off racial groups and [in] replac[ing] thosebarriers with voting coalitions." Vecinos, 72 F.3d at 991. Atthe same time, however, we find it telling that the Enacted Plan providesfor only one majority black district (three, if the combo method ofracial identification is used). One district would be 5.9% of therelevant universe; three would be 17.6% of the relevant universe. Eitherway, the Enacted Plan fails to provide African-American voters with aproportional number of majority black districts>.Page 47

The other side of the coin is that the Enacted Plan provides whitevoters with a number of majority white districts> that exceedsproportionality. The Enacted Plan created twelve majority whitedistricts>, which is 70.6% of the relevant universe. According to 2000census figures, whites hover around 55% of the VAP (the exact figuredepends upon whether the alone or combo method of racial identificationis used). On that basis, white voters should have between nine and tenmajority white districts> — not twelve.

Moving past proportionality, the plaintiffs make much of the proceduresused by the Committee in drafting the new district lines. They claim thatthose procedures stifled minority input. The evidence shows that, unliketheir counterparts in the Senate, the House members of the Committeeconsistently refused either to confer with community representatives orto listen to minority group concerns about the redistricting process.Petrolati himself chose to meet only with House incumbents and staff inregard to redistricting matters, and he advised other Committee membersto follow suit. Whatever the shortcomings of this approach, we do notcount it in the plaintiffs' favor. For one thing, the Committee did holdfive public hearings. For another thing, its policy of not listening tocommunity representatives in private, focused meetings appears to havebeen applied without regard to race.

We have also reviewed a number of other factors. The legislativehistory of the VRA suggests that courts shouldPage 48consider, in the course of a section 2 inquiry, "the extent to whichmembers of the minority group have been elected to public office in thejurisdiction." S. Rep. No. 97-417, at 29 (1982), reprintedin 1982 U.S.C.C.A.N. at 207. In Suffolk County,African-Americans have been elected regularly to various offices(including the House of Representatives) over the past twenty-five years.At the same time, however, a considerable number of African-Americanofficeholders have come from heavily black districts>, and the number ofsuccessful black candidates is disproportionately low when compared withAfrican-Americans' share of Boston's population at the relevant times.Since this evidence cuts both ways, we deem it neutral for presentpurposes.

Consistent with the Senate report, we have tried to gauge "whetherthere is a significant lack of responsiveness on the part of electedofficials to the particularized needs of the members of the minoritygroup." Id. The plaintiffs provided some testimony thatAfrican-American voters find Massachusetts legislators unaware of theirconcerns and unresponsive to their needs, but the defendants counteredwith evidence of instances in which legislators sought out minoritygroups and instituted programs designed to address the groups' requests.The evidence, as a whole, suggests that Massachusetts legislators aregenerally responsive to the particularized needs of minorities.

We have not limited our assessment of the totality of the circumstancesto those factors recounted above. We have alsoPage 49inquired into causation where appropriate and examined such thingsas voter registration and turnout figures, the history of officialdiscrimination at the polls in Boston, the playing of the race card inpolitical campaigns, and the extent to which the effects of pastdiscrimination in education and employment bear on the equities. Thesefactors do not add substantially to our understanding of the totality ofthe circumstances.

We have left for last a final factor, to which we attach greatimportance. After having heard the testimony and reviewed the evidence,we find that incumbency protection played a significant role in theCommittee's redistricting decisions. Incumbency protection is as old aselectoral politics and, in its traditional form, is often thought to be alegitimate consideration in redistricting. See, e.g.,Easley v. Cromartie, 532 U.S. 234, 247-48 (2001);Vera, 517 U.S. at 965. The issue becomes more complex, however,when race is used as a tool to achieve incumbency protection.See Vera, 517 U.S. at 968 ("[T]o the extent that raceis used as a proxy for political characteristics, a racial stereotyperequiring strict scrutiny is in operation."); Clark v.Putnam County, 293 F.3d 1261, 1271-72 (11th Cir. 2002)("Incumbency protection achieved by using race as a proxy is evidence ofracial gerrymandering."); Ketchum v. Byrne,740 F.2d 1398, 1408 (7th Cir. 1984) ("We think there is little point forpresent purposes in distinguishing discrimination based on an ultimateobjective of keeping certain incumbent whites in office fromdiscriminationPage 50borne of pure racial animus."). Here, the Committee madeAfrican-American incumbents less vulnerable by adding black voters totheir districts> and made white incumbents less vulnerable by keepingtheir districts> as "white" as possible. Its actions evinced a willingnessto move district lines simply to safeguard incumbents' seats, withoutregard to other objectives. This course of conduct sacrificed racialfairness to the voters on the altar of incumbency protection.See generally Garza v. County of LosAngeles, 918 F.2d 763, 778-79 (9th Cir. 1990) (Kozinski, J.,concurring and dissenting in part) (noting that "[p]rotecting incumbencyand safeguarding the voting rights of minorities are purposes often atwar with each other"). That sacrifice lends considerable luster to theplaintiffs' case.

This phenomenon is best illustrated by looking at how the Committeewent about the task of fashioning the 6th, 11th, and 12th Suffolkdistricts>. The Enacted Plan stripped three majority black precincts fromthe 11th and three more from the 12th. Rather than move these sixprecincts into districts> where their presence might increaseAfrican-American opportunities, the House chose instead to place them inthe 6th Suffolk — a district that already was two-thirds blackunder the 1993 Plan. The one-person, one-vote requirement plainly did notdictate these changes as the 11th and 12th Suffolk districts> needed morepeople (not fewer) to accommodate the 2000 census whereas the 6th Suffolkdid not. As a result of this superpacking of the 6th Suffolk, the blackVAP inPage 51the 12th Suffolk (Speaker Finneran's district) was significantlyreduced and the 11th Suffolk was converted from a majority minoritydistrict to a majority white district. We agree with Dr. Engstrom thatthis manipulation of district lines comprises a textbook case of packing,which resulted in concentrating large numbers of minority voters within arelatively small number of districts>.

To make a bad situation worse, the House leadership knew what it wasdoing. Speaker Finneran admitted that the 6th Suffolk was a "safe"majority black district before the six new precincts were transferred toit. For his part, Chairman Petrolati testified that he was aware of theexceedingly high concentration of African-American voters in the 6thSuffolk district prior to the release of the Committee Plan, but that hecould not recall having investigated any alternative ways in which todraw the lines so as to "unpack" the district. When asked why theCommittee had configured the 6th Suffolk as it did, neither Finneran norPetrolati could give an exonerative reason.

We understand that legislatures have wide discretion to decide how bestto ensure equal voting opportunities. Georgia v.Ashcroft, 123 S.Ct. at 2511. We also understand that packingis a loose concept that has no talismanic legal significance.Cf. Voinovich, 507 U.S. at 155 ("Section 2 containsno per se prohibitions against particular types ofdistricts>. . . ."). But the VRA prohibits the creation ofminority-concentrated districts> if the effect of so high a degree ofconcentration is to denyPage 52members of a protected class an equal opportunity to participate inthe political process and elect candidates of their choice. SeeGingles, 478 U.S. at 46 n.11 (recognizing that "[d]ilution ofracial minority group voting strength may be caused by . . . theconcentration of blacks into districts> where they constitute an excessivemajority"). In this instance, we believe that the extreme and unexplainedpacking of the 6th Suffolk district speaks eloquently to the totality ofthe circumstances. So too the unnecessary (and never convincinglyexplained) stripping of minority voters out of the 11th and 12th Suffolkdistricts>. Cf. Ketchum, 740 F.2d at 1407 (finding"strong evidence of intentional discrimination" in a city council'sdecision to move African-American persons out of particular wards "inmuch greater numbers than their proportion of the population and ingreater numbers than required to accomplish the necessary reduction").

In the same vein, we find the circumstances surrounding the FitzgeraldAmendment revealing. Those circumstances show that the House wascomfortable with manipulating district lines to benefit two whiteincumbents without pausing to investigate the consequences of its actionsfor minority voting opportunities. Once again, race was used as a tool toensure the protection of incumbents. This sad fact speaks to the totalityof the circumstances.15Page 53

We also deem it significant that, despite a growing African-Americanpopulation, the Enacted Plan represents a step back from the previousredistricting scheme (enacted in 1993). Credible evidence of recordshows that the 1993 plan provided eleven majority white districts> andfour majority black districts> in the Boston area.

From 1990 to 2000, the black VAP grew as a percentage of the city-wideVAP by 0.3% and the white VAP shrank by 7.55% as a percentage of thecity-wide VAP. We find that, despite these shifts in population, theEnacted Plan increased the number of majority white districts> to twelveand diminished the number of majority black districts> to one. Even werewe to use the defendants' numerics — which we consider lessaccurate — the 1993 scheme provided eleven majority white districts>and four majority black districts> whereas the Enacted Plan increased thenumber of majority white districts> to twelve but decreased the number ofmajority black districts> to three. However they are arrayed, thesefigures are disturbing, especially given the professed desire of theCommittee to preserve or enhance minority voting opportunities. In theface of a burgeoning minority population, this sort of retrogressioncounts in the plaintiffs' favor. Cf. id. at 1407Page 54(finding such retrogression to be "strong evidence of intentionaldiscrimination").

In the end, we conclude that the calculated manipulation of the 6th,11th, and 12th Suffolk districts>, the reengineering associated with theFitzgerald Amendment, and the regressive nature of the Enacted Plancollectively exhibit a willingness on the part of the House to use raceas a proxy in achieving incumbency protection. This evidence weighsheavily in the plaintiffs' favor in a consideration of the totality ofthe circumstances.

D. Synthesis.

In 1995, the court of appeals described the Voting Rights Act as "aSerbonian bog in which plaintiffs and defendants, pundits andpolicymakers, judges and justices find themselves bemired."Vecinos, 72 F.3d at 977. A decade later, this characterizationstill rings true. Voting rights cases are among the most difficult acourt must decide. Not only do they implicate the complex relationshipbetween race and politics, but they also plunge courts into theuncomfortable worlds of statistical analysis and legislativepolicymaking.

Our duty, however, is clear, and a careful review of the credibleevidence in this case leads inexorably to the conclusion that theRedistricting Act, insofar as it delineates the seventeenPage 55Boston-area House districts> at issue, dilutes the voting power ofAfrican-American voters and, thus, offends section 2 of the VRA. Theplaintiffs have carried the devoir of persuasion anent each of the threepreconditions laid down by the Supreme Court, and an analysis of thetotality of the circumstances confirms the presumption of impermissiblevote dilution. In this regard, we attach particular significance to theevidence concerning proportionality, retrogression, and the House'swillingness to turn a blind eye to the racial implications of itssingle-minded effort to protect incumbents at virtually any socialcost.16

The short of it is that the plaintiffs have sustained their burden ofdemonstrating that the Enacted Plan leaves African-American citizens inthe Boston area with "less opportunity than other members of theelectorate to participate in the political process and to electrepresentatives of their choice." 42 U.S.C. § 1973(b). Consequently,the Enacted Plan cannot stand.

E. Remedy.

This brings us to the question of remedy. We are mindful that 2004 isan election year and that time is of the essence. We are mindful too thatplaintiffs' Plan No. 2, on its face, appears to be a viable surrogate forthe portion of the Enacted Plan that we have found unlawful. It istempting to impose Plan No. 2 on thePage 56Commonwealth, or in the alternative, to forge a plan of our ownconception.

On balance, however, we think that there is a better way. In an idealworld, redistricting is a legislative prerogative, and we are hesitant toimpose a remedy without first affording the Legislature an opportunity toact. Cf. Vecinos, 72 F.3d at 992 (recognizing that"it is a fundamental tenet of voting rights law that, time permitting, afederal court should defer in the first instance to an affected state'sor city's choice among legally permissible remedies"). Moreover, we arecognizant that the movement of a single precinct may create a rippleeffect felt several districts> away. For these reasons, we will cede tothe defendants the first chance to assemble a curative plan. Thedefendants must, of course, act with all deliberate speed. We believethat, given the extensive work already done and the availability of theMaptitude software, six weeks should be a sufficient period of time forthe defendants to prepare a proposed redistricting plan, forward it tothe plaintiffs for comment, and then submit it to us for approval. If thedefendants fail to act within these temporal parameters, this court thenmust fashion an appropriate remedy.

In proceeding from this point, we remind the defendants that any newredistricting scheme must not rob Peter to pay Paul: a revised plan mustafford all cognizable minority groups, not just African-Americans, anequal opportunity to participate in thePage 57political process and elect representatives of their choice. Tothis end, the Legislature should also take pains to avoid underminingcross-racial coalitions in the name of minority-district maximization.See Shaw v. Reno, 509 U.S. 630, 657 (1993)(observing that "[r]acial gerrymandering, even for remedial purposes, maybalkanize us into competing racial factions"). We shall, of course,retain jurisdiction over this case pending the enactment of a lawful planreconfiguring the seventeen affected districts>.

III. CONCLUSION

We need go no further. For the reasons elucidated above, we strike downthe Enacted Plan insofar as it pertains to the seventeen House districts>at issue here; enjoin the defendants from holding House elections for anyof those seats under the Enacted Plan; and order the defendants toprepare and submit for our consideration, within six weeks from the datehereof, a new redistricting plan consistent with the requirements ofsection 2 of the VRA. We shall retain jurisdiction over the case pendingthe submission, approval, and enactment of a lawful redistricting plan.

So Ordered.

APPENDIX A

The First Ginqles Precondition: Majority Black Districts> Using VAP Alone Method:

Under the Enacted Plan, the 6th Suffolk is 78.42% BVAP (black votingage population). Under Plan No. 2, the 6th Suffolk is 52.29% BVAP and the12th Suffolk is 56.86% BVAP.

Combined Method:

Under the Enacted Plan, the 5th Suffolk is 55.93% BVAP, the 6th Suffolkis 82.42% BVAP, and the 12th Suffolk is 52.01% BVAP. Under Plan No. 2,the 5th Suffolk is 50.40% BVAP, the 6th Suffolk is 55.00% BVAP, the 11thSuffolk is 51.25% BVAP, and the 12th Suffolk is 60.50% BVAP.

APPENDIX B

The First Ginqles Precondition: Majority Black Districts> Using CVAP Alone Method:

Under the Enacted Plan, the 5th Suffolk is 54.9% BCVAP (black citizenvoting age population) and the 6th Suffolk is 81.1% BCVAP. Althoughneither party provided the court with complete CVAP data for Plan No. 2,we are satisfied with the plaintiffs' explanation (based on their modestalterations to the Harmon Plan) for why the 6th Suffolk, 11th Suffolk,and 12th Suffolk districts> would have BCVAP figures exceeding 50% underPlan No. 2. The defendants did not seriously question this representationat trial.

Combined Method:

Under the Enacted Plan, the 5th Suffolk is 60.9% BCVAP and the 6thSuffolk is 84.8% BCVAP. Again, we are satisfied with the plaintiffs'explanation for why the 5th Suffolk, 6th Suffolk, 11th Suffolk, and 12thSuffolk districts> would have BCVAP figures exceeding 50% under Plan No.2.

1. In their filings with the court, the plaintiffs pursued a theoryof aggregation, namely, that African-American and Hispanic votersfunction in Boston as a combined cross-racial coalition with sharedinterests. At trial, however, the testimony concentrated on the votingpatterns of African-Americans. Given our decision that the district linesmust be redrawn because of the way in which the Redistricting Act treatsblack voters, see text infra, we need not probe thecomplex question of whether the plaintiffs' evidence revealed a cohesivecoalition among African-American and Hispanic voters.

2. The Joint Committee was also responsible for redrawing the linesof Massachusetts's ten congressional districts>. That aspect of the JointCommittee's work is not before us and we make no further mention ofit.

3. Although Speaker Finneran denied any involvement in theredistricting process, the circumstantial evidence strongly suggests theopposite conclusion. For one thing, he handpicked the members of theCommittee and placed Petrolati at the helm. For another thing, he ensuredthat the Committee hired his boyhood friend and long-time politicalcollaborator, Lawrence DiCara, as its principal functionary. Last —but far from least — Finneran's in-house counsel, John Stefanini,had the Maptitude software installed on his computer in the Speaker'soffice suite and was one of only four legislative staffers who receivedtraining in how to use the software.

4. This description contained a bit of poetic license. The districtin question had been a majority minority district prior to the start ofthe 2001 redistricting effort.

5. Irony is no stranger to the law. After upsetting the applecart,Fitzgerald performed another about-face and decided not to seekreelection. Instead, he accepted a coveted appointment as theLegislature's sergeant-at-arms.

6. This case concerns seventeen of the nineteen House districts> inSuffolk County: the excluded districts> are the 16th and 19th Suffolkdistricts>, both of which lie wholly outside Boston. In a separate case,Meza v. Galvin, Civil Action No. 02-10428 (D. Mass.),a different group of Hispanic voters filed a challenge to theRedistricting Act as it pertains to the 2d Suffolk House district, whichis centered in the neighboring community of Chelsea (but which alsoincludes the Charlestown section of Boston). The two cases wereconsolidated for trial. The Meza case will be the subject of aseparate opinion.

7. While well over 50% of African-Americans register to vote,see text supra, only 20% of the total Hispanic VAP inBoston is estimated to be registered. The difference in these numbers isquite likely attributable to the relatively greater non-citizenship ratesof Hispanics as compared to African-Americans.

8. For example, the defendants' principal expert stated at trialthat "essentially the estimates — [the plaintiffs' expert's] andmine — came out in terms of they're in the same ball park" despitethe fact that the plaintiffs' expert used the alone method and he (thedefendants' expert) used the combo method. He concluded that, as appliedin this case, the two methods yield "no great distinctivedifferences."

9. We have, of course, reviewed all the elections analyzed by theexperts. While we find same-race elections, overall, less probative, wedo glean some insights from them. See infra PartII(B)(3)-(4). Furthermore, the black-versus-black races are probativeof black candidate success (and, thus, relevant in a consideration of thetotality of the circumstances). See Jenkins, 116 F.3dat 694.

10. Some councilmanic candidates represent specific districts>. Noneof the experts who testified in this case submitted any figures forcouncilmanic district elections, so we concentrate exclusively on theat-large election results.

11. Although Dr. Engstrom provided both bivariate and multivariateregression estimates for each candidate, we will use only the latter.This decision allows us to use the best available approximation of thewhite vote. In any event, the differences between the estimates areinsignificant.

12. The term "non-minority" is a bit of a misnomer because thiscategory excludes only African-Americans and Hispanics, and, thus,includes not only whites but also small minority groups (such as NativeAmericans and Asian-Americans). It is, however, a reasonably accurateapproximation of the white vote.

13. There was a third candidate in the race (Sinnott), but heattracted little support. For all practical purposes, the contestamounted to a head-to-head battle between Jenkins and Conley.

14. We use the term "non-African-American vote" here because this isthe data that was presented to us (in the form of a bivariate regressionestimate). Notwithstanding the relative breadth of this category, we findthe conclusion both reliable and probative of pervasive white support forJenkins's opponents.

15. In an effort to parry this thrust, the defendants point outthat, in the 2002 elections, an Hispanic candidate (Jeffrey Sanchez) wonthe 15th Suffolk seat. While that is so, the analysis performed by thedefendants' expert failed to produce a valid regression estimate for theAfrican-American vote in this election. Thus, we cannot say — asthe defendants would have it — that Sanchez was the black voters'candidate of choice.

16. Although we find these factors especially telling, we emphasizethat, as noted above, a host of other circumstances also have influencedour decision.

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