MEZA v. GALVIN

322 F.Supp.2d 52 (2004) | Cited 1 time | D. Massachusetts | June 21, 2004

MEMORANDUM AND ORDER

This is the companion case to Black Political Task Force v.Galvin, Civil Action No. 02-11190, in which we upheld achallenge by African-American and Hispanic voters to legislationrevising the boundaries of the seventeen Massachusetts House ofRepresentatives districts within the city of Boston. Havingaccepted the revised remedy proposed by the defendant in responseto our liability opinion in Black Political Task Force,300 F. Supp.2d 291 (D. Mass. 2004), we have today separately enteredfinal judgment in that case. In the instant case, we initiallyentered a bare final judgment contemporaneously with issuance of our liability opinion inBlack Political Task Force, effectively rejecting a focusedchallenge to the redistricting of one specific House districtwithin Boston. That judgment was intended to apprise the parties,for purposes of constructing a remedy in the broader BlackPolitical Task Force case, that we did not view the singledistrict at issue here to be problematic as enacted. Given theextended remedial proceedings in Black Political Task Force,however, we later vacated the final judgment in this case inorder that the final judgments in both cases and the completedrationale for those judgments would be available simultaneously.This Memorandum will provide an explanation for the renewed finaljudgment entered in this case today.

The claims in the instant case, brought by threeLatino1 voters and two nonprofit organizations, wereconfined to the redrawing of the lines for the 2d Suffolk Housedistrict("2d Suffolk District"),2 which under the 2001Redistricting Act (the "Enacted Plan") included all of the Charlestown neighborhood ofthe city of Boston and most of the city of Chelsea. Plaintiffscontended that the legislature, in drawing the lines of the 2dSuffolk District for the Enacted Plan, impermissibly diluted thevoting strength of the Hispanic community in violation of § 2 ofthe Voting Rights Act, 42 U.S.C. § 1973(b). Plaintiffs furthercontended that the legislature intentionally carried out thisalleged vote dilution scheme in violation of the Equal ProtectionClause of the 14th Amendment. After trial, we found plaintiffsunable to sustain either claim as to the 2d Suffolk Districtunder the Enacted Plan. The remedy we have approved in BlackPolitical Task Force employs the same configuration for the 2dSuffolk District as in the Enacted Plan.

I. BACKGROUND

Although Black Political Task Force and this case were filedseparately and the two cases involved distinct legal claims bydifferent collections of plaintiffs, many of the factual andlegal issues presented in the cases overlapped. Consequently, weconsolidated the cases for trial.

To avoid unnecessary redundancy, we use our Black PoliticalTask Force liability opinion as the template for our analyticalapproach here. In doing so, we assume familiarity with thatopinion and will direct our analysis more narrowly to the aspectsof the 2001 redistricting process that concern alleged Hispanicvote dilution in the 2d Suffolk District. A. The Enacted Plan for the 2d Suffolk District

Prior to the 2001 redistricting, the 2d Suffolk District asdrawn by the previous redistricting plan in 1993 comprised all ofCharlestown and all but two precincts in Chelsea. The recordindicates this district configuration linking Charlestown andChelsea had been in place for at least thirty years. According tothe 2000 Census, the 2d Suffolk District, with the 1993 lines,had a total population of 42,790. This exceeded the targetdistrict population for the 2001 redistricting effort,3necessitating a reduction of population in the district. TheEnacted Plan, which the legislative redistricting committee (the"Committee") ultimately adopted, did not materially change theconfiguration of the 2d Suffolk District; it maintained thehistoric pairing of Charlestown and Chelsea in the district butmoved four precincts in the northern part of Chelsea (precincts3-2, 3-4, 4-2, and 4-3) into the adjoining 16th Suffolk Districtto bring the 2d Suffolk District within the target populationrange.4 B. The Plaintiffs' Plan

Plaintiffs' primary contention was that by again configuringthe 2d Suffolk District to include Charlestown, the Committeecountenanced a split of the rapidly growing Hispanic populationsin Chelsea and East Boston and thereby impermissibly diluted theHispanic vote in those areas.

In support of this contention, plaintiffs pointed to the 2000Census data which show considerable growth in the Hispaniccommunities of Chelsea and East Boston from 1990 to 2000: duringthose ten years, the percentage of Hispanics in the totalpopulation increased about 150% (from 31.4% to 48.4%) in Chelseaand slightly more than 200% (from 17.6% to 39.0%) in East Boston.The Hispanic population in Charlestown increased at an evengreater rate during that time period, an over 500% change intotal population, from 2.1% to 11.6%. The absolute number ofHispanics in Charlestown counted in the 2000 Census (1,764),however, remained significantly below the number of Hispanics inChelsea (16,984) or in East Boston (14,990).

During the 2001 redistricting process and prior to theCommittee's adoption of the Enacted Plan, the Chelsea Commissionon Hispanic Affairs ("CCHA"), one of the plaintiff organizationshere, submitted two separate plans to the Committee in an attemptto contain the entire city of Chelsea in a single district. One of these plans did so by adding one Charlestown precinct to allthe Chelsea precincts, while the other added one East Bostonprecinct (precinct 1-8) to all the Chelsea precincts.5

Plaintiffs did not offer either of the CCHA pre-enactment plansin this litigation as a means to rectify the alleged dilution.Rather, for purposes of this case, plaintiffs offered a differentalternative redistricting plan (the "Plaintiffs' Plan") as aremedial plan.6 The Plaintiffs' Plan moved five EastBoston precincts (precincts 1-4, 1-6, 1-7, 1-8, and 1-9) from the1st Suffolk District to the 2d Suffolk District and shifted allof Charlestown into the adjacent 3d Suffolk District.Additionally, the Plaintiffs' Plan moved three Chelsea precinctsout of the 2d Suffolk District (precincts 2-1 (to the 28thMiddlesex District), 4-1 (to the 16th Suffolk District), and 4-4(to the 16th Suffolk District)) and brought in two Chelseaprecincts from the 16th Suffolk District (precincts 3-2 and 3-4)to replace them. Plaintiffs contended that the end result of this alternativedistrict realignment would not merely be the unification of aHispanic population split in the Enacted Plan; it would alsocomport with the traditional redistricting principle ofmaintaining "communities of interest" because Chelsea and EastBoston form such a community whereas Chelsea and Charlestown aresubstantially dissimilar.

In short, plaintiffs argued that in configuring the 2d SuffolkDistrict, the Committee disregarded what the Census data andsimple facts about Charlestown, East Boston, and Chelsea makepatently clear — that East Boston, not Charlestown, now belongswith Chelsea in the 2d Suffolk District. Plaintiffs furthercontended that the failure to combine East Boston and Chelsea wasnot due to simple oversight on the part of the Committee; rather,they claimed that the obviousness of the fact that the EnactedPlan divided a substantial Hispanic population, in addition toseparating an ethnic community of interest, gives rise to aninference of intentional discrimination on the part of theCommittee.

II. ANALYSIS

We assess plaintiffs' allegations of a Voting Rights Actviolation following the approach we set forth for a § 2 claim inour Black Political Task Force liability opinion. In so doing,we first address whether plaintiffs have satisfied the threeformal threshold elements of a § 2 violation, as dictated byThornburg v. Gingles, 478 U.S. 30, 50 (1986). Although we conclude plaintiffs have arguably failed to meet the firstGingles requirement and appear to fall short on the thirdrequirement as well, given uncertainty about the precisedimensions of the Gingles threshold elements, we continuebeyond the Gingles analysis to undertake a "totality of thecircumstances" analysis. Ultimately, our analysis leads us toconclude that the configuration of the 2d Suffolk District in theEnacted Plan does not violate § 2. Because, unlike in thecompanion Black Political Task Force case, we ultimately findno § 2 violation here, we then continue beyond the § 2 analysisto assess plaintiffs' Equal Protection claims. In the end, wefind that the constitutional route is also unsuccessful forplaintiffs, and we conclude that there was no impermissibledilution of Hispanic voters' rights in the redistricting of the2d Suffolk District.

A. § 2 of the Voting Rights Act

To prevail on a § 2 claim, plaintiffs need not showdiscriminatory purpose; rather, they must first meet the threethreshold Gingles conditions: (1) that they are a part of aminority group that is "sufficiently large and geographicallycompact to constitute a majority in a single-member district";(2) that the plaintiff minority group is "politically cohesive";and (3) that "the white majority votes sufficiently as a bloc toenable it — in the absence of special circumstances, such as theminority candidate running unopposed — usually to defeat theminority's preferred candidate." Gingles, 478 U.S. at 50-51 (citation omitted). If the Gingles threshold is surmounted,plaintiffs must then demonstrate, given the "totality of thecircumstances," that the Enacted Plan deprives Hispanic voters ofan equal opportunity to participate in the electoral process andto elect candidates of their choice. See Vecinos De Barrio Unov. City of Holyoke, 72 F.3d 973, 980 (1st Cir. 1995) ("VecinosIII"). We address the Gingles factors and undertake a totalityof circumstances analysis in turn.

1. The Gingles Threshold Requirements

Because the Gingles threshold requirements are arguablydispositive in this case, we pause to consider their purpose. Aswe noted in Black Political Task Force, "[v]oting rights casesare among the most difficult a court must decide. Not only dothey implicate the complex relationship between race andpolitics, but they also plunge courts into the uncomfortableworlds of statistical analysis and legislative policymaking."300 F. Supp.2d at 315. Given these difficulties, it is appropriateto require certain threshold showings before the courts areinvited to enter those worlds. Moreover, for such thresholds tobe meaningful, they must have some clarity and prescriptiveness;to the degree that the thresholds are as open-textured andcontingent as the "totality of the circumstances" balancing test,they effectively collapse into the balancing test itself. Inother words, the Gingles preconditions appear meant to act as athreshold gateway to the totality of the circumstances analysis,rather than as factors within it. See Campos v. City of Houston, 113 F.3d 544, 548 (5th Cir. 1997).Thus, in analyzing the Gingles requirements, we note there arepolicy arguments for observing their plain terms strictly andreasons why the failure to meet any one of them should be foundfatal to plaintiffs' case. See generally Rodriguez v. Pataki,308 F. Supp.2d 346, 383-86 (S.D.N.Y. 2004) (three-judge panel)(noting policy arguments for objective rule to discipline courts'discretion under § 2); cf. Vieth v. Jubelirer,124 S.Ct. 1769 (2004) (concluding that political gerrymandering cases arenonjusticiable because no judicially discernible and manageablestandards for adjudicating such claims now exist).

(a) "Majority"

The first Gingles threshold requirement mandates a showingthat plaintiffs are members of a minority group "sufficientlylarge and geographically compact to constitute a majority in asingle-member district." Gingles, 478 U.S. at 50. Plaintiffsclaimed their alternative plan did so and is a feasible andadequate remedy for the alleged Hispanic vote dilution resultingfrom the Enacted Plan. Whether it does, in fact, do so turns onhow the term "majority" is defined.7 Plaintiffs' expert, John Harmon,8 testified that whileunder the Enacted Plan the 2d Suffolk District has a Hispanicvoting age population ("VAP") of 32.3%, VAP for Hispanics underthe Plaintiffs' Plan rose to a majority, albeit slim, of 50.7%.This, plaintiffs claimed, is sufficient to demonstrate thepotential to elect as required by Gingles, even under thestringent bright-line rule adopted by most courts requiring proofof a statistical majority. See, e.g., Valdespino v. AlamoHeights Indep. Sch. Dist., 168 F.3d 848, 852-53 (5th Cir. 1999),cert. denied, 528 U.S. 1114 (2000); Cousin v. Sundquist,145 F.3d 818, 828-29 (6th Cir. 1998), cert. denied, 525 U.S. 1138(1999).

Defendant, however, contended that VAP is not the appropriatemeasure for determining whether plaintiffs meet the firstGingles precondition. Rather, defendant argued that where dataconcerning citizen voting age population ("CVAP") are availableand differ significantly from VAP data, CVAP is the appropriatemeasure. Defendant's expert, Kimball Brace,9 calculatedthat the CVAP of Hispanics in the 2d Suffolk District under theEnacted Plan and the Plaintiffs' Plan was 19.3% and 31.85%,respectively. Defendant argued that with such low Hispanic CVAPnumbers for the 2d Suffolk District under their alternative plan, plaintiffs could not sufficiently demonstratean "effective voting majority," Johnson v. De Grandy,512 U.S. 997, 1024 (1994), and thus could not clear the first Gingleshurdle.10

We are therefore faced with two legal questions, yet unresolvedin this circuit, that we deferred in our companion BlackPolitical Task Force liability opinion because they were notdispositive there: The first is whether the proper statisticalmeasure for evaluating plaintiffs' ability to meet the firstGingles precondition is VAP or CVAP. The second, if wedetermine that the latter is the appropriate measuring stick,which we do, is whether plaintiffs can satisfy the firstGingles precondition despite their inability to demonstrate astatistical majority of Hispanic CVAP in the 2d Suffolk District.Because this second question has been carefully avoided by theFirst Circuit en banc since our Black Political Task Forceopinion entered, see Metts v. Murphy, 363 F.3d 8 (1st Cir.2004) (en banc) (per curiam), and because there exists an alternative"totality of the circumstances" ground to dispose of the § 2claim, we decline to offer a definitive answer to the secondquestion in this case.

(i) CVAP is the Proper Measure When Available

At the outset, we note that neither the Supreme Court nor theFirst Circuit has defined with precision the kind of "majority" aminority group must be able to demonstrate to satisfy Gingles.Cf. De Grandy, 512 U.S. at 1008 (noting, without reaching theissue, that "which characteristic of minority populations (e.g.,age, citizenship) ought to be the touchstone for proving adilution claim and devising a sound remedy" is a question oflaw); Black Political Task Force, 300 F. Supp.2d at 300("[T]he First Circuit has not spoken directly to the point.").However, all the circuits, and a number of district courts, thathave directly reached the issue have held that citizenship votingage population data, where readily available, should be used inthe Gingles analysis. See Chen v. City of Houston,206 F.3d 502, 515 n. 7 (5th Cir. 2000) ("Citizen voting age population isthe proper measure under section 2."), cert. denied,532 U.S. 1046 (2001); Perez v. Pasadena Indep. Sch. Dist., 165 F.3d 368,372 (5th Cir. 1999) (same), cert. denied, 528 U.S. 1114 (2000);Negrón v. City of Miami Beach, 113 F.3d 1563, 1571 (11th Cir.1997) (first Gingles precondition requires consideration ofcitizenship information); Cano v. Davis, 211 F. Supp.2d 1208,1233 (C.D. Cal. 2002) (three-judge panel) (CVAP is "the appropriate measure to use in determining whether anadditional effective majority-minority district can be created"),aff'd, 537 U.S. 1100 (2003); see also Barnett v. City ofChicago, 141 F.3d 699, 704 (7th Cir. 1998) (stating, in dictum,that CVAP is proper measure in § 2 suit alleging dilution ofLatino voting power), cert. denied, 524 U.S. 954 (1998); cf.Romero v. City of Pomona, 883 F.2d 1418, 1425-26 (9th Cir.1989) (counting only eligible voters), overruled in part onother grounds by Townsend v. Holman Consulting Corp.,914 F.2d 1136, 1141 (9th Cir. 1990) (en banc); Aldasoro v. Kennerson,922 F. Supp. 339, 373 (S.D. Cal. 1995) (finding case law stands"for the proposition that at least an eligible voter majorityis required"). But see Rodriguez v. Pataki, 308 F. Supp.2dat 405-06 (assuming arguendo "that an ethnic minority groupconstituting a majority (50.1%) of the VAP and a near majority ofthe CVAP (45.4%) in a singlemember district may under somecircumstances satisfy the first Gingles precondition").

As we noted in our Black Political Task Force liabilityopinion, using citizen information fits with the underlyingpurpose of the first Gingles precondition, which is todetermine voter ability to elect preferred candidates.300 F. Supp.2d at 300. Indeed, the Voting Rights Act is specificallyaddressed to the mechanics of voting. See Gingles, 478 U.S.at 88 (O'Connor, J., concurring); see also Holder v. Hall,512 U.S. 874, 887 (1994) (O'Connor, J., concurring) ("In orderfor an electoral system to dilute a minority group's votingpower, there must be an alternative system that would provide greater electoralopportunity to minority voters." (emphasis added)); Voinovichv. Quilter, 507 U.S. 146, 152 (1993) ("Congress enacted § 2 ofthe Voting Rights Act of 1965 . . . to help effectuate theFifteenth Amendment's guarantee that no citizen's right to voteshall `be denied or abridged . . . on account of race, color, orprevious condition of servitude.'" (emphasis added)).

Because non-citizens by definition cannot vote, it makes littlesense to consider them for the purposes of determining whetherthe particular remedial scheme proffered by plaintiffs wouldadequately remedy the alleged vote dilution. This is especiallyso where, as here, the discrepancy between VAP and CVAP issubstantial. As Judge Posner explained in Barnett v. City ofChicago: Neither the census nor any other policy or practice suggests that Congress wants noncitizens to participate in the electoral system as fully as the concept of virtual representation would allow. . . . The right to vote is one of the badges of citizenship. The dignity and very concept of citizenship are diluted if noncitizens are allowed to vote either directly or by the conferral of additional voting power on citizens believed to have a community of interest with the noncitizens.141 F.3d at 704.

It is appropriate for analytical purposes to distinguish thegoal of ensuring electoral equality through the maintenance offair voting practices and procedures, on the one hand, from amore general concern with representational equality, on theother. The latter, which ensures that constituents have equal access to their representatives and to governmental services, hasbeen the conventional consideration in devising an apportionmentsystem to meet the one-person, one-vote obligation. Indeed, theSupreme Court has indicated that apportionment systems based ontotal population, without regard to voter eligibility, areconstitutional. See Burns v. Richardson, 384 U.S. 73, 92(1966) ("The decision to include or exclude [those ineligible tovote from the apportionment base] involves choices about thenature of representation with which we have been shown noconstitutionally founded reason to interfere."); see alsoGarza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990)(upholding remedial reapportionment plan based on totalpopulation and rejecting appellant's argument that apportionmentshould rely on CVAP), cert. denied, 498 U.S. 1028 (1991).

The Voting Rights Act, in contrast, is not aimed at ensuringequality of representation. Rather, its aim is to safeguardvoters' opportunities to elect their preferred representativesand as such it promotes electoral, not representational,equality.11 This underlying purpose of the Voting RightsAct translates here into the use of CVAP rather than VAP because theformer more accurately captures the group of individuals whoseelectoral rights are at stake and allows for a more appropriateremedial recalibration of improperly-balanced voting strength.Thus, we conclude that CVAP is the appropriate measure here inassessing plaintiffs' ability to meet the first Ginglesprecondition.

We must consequently turn to the second issue: whetherGingles requires a showing that under the Plaintiffs' Plan,Hispanic CVAP constitutes a statistical majority in the 2dSuffolk District. But before we explore that legal issue, wedigress briefly to resolve a factual dispute concerning theappropriate CVAP for Hispanics in the 2d Suffolk District.

(ii) CVAP Under the Plaintiffs' Plan is Less than a Statistical Majority

As noted above, defendant's expert, Brace, testified that theHispanic CVAP under the Plaintiffs' Plan is 31.85%. Brace,however, did not simply take this figure directly from the Censusdata; rather, the figure is an estimation based on a series ofcalculations that break down and rearrange citizenship data he received from the Census Bureau. Moreover, the raw citizenshipdata itself came from the Bureau's "Long Form," which unlike the"Short Form," is not distributed to every household but rather iscollected from an average of one in six households. Thus, as aninitial critique, plaintiffs' expert, Harmon, questioned thevalidity of Brace's Hispanic CVAP estimate given that the rawcitizenship numbers on which Brace performed his calculations aresubject to sampling error.

While Brace's best estimate for Hispanic CVAP in thePlaintiffs' Plan 2d Suffolk District was 31.85%, he also provideda range of estimates that incorporated the Census Bureau'sstandard error calculations. For instance, in his testimony,Brace reported three "confidence intervals" to the data: the 90%confidence interval, the 95% confidence interval, and the 95%confidence interval with the design factor. The design factorconfidence interval specifically took into account the CensusBureau's calculation of the likelihood of any error caused by theLong Form sampling method. We conclude that this interval, whichBrace reported to be between 29.30% and 34.40%, sufficientlyaccounts for deviations caused by sampling error and thus is areliable range of estimates for Hispanic CVAP in the 2d SuffolkDistrict under the Plaintiffs' Plan.12

Plaintiffs' criticism of Brace's Hispanic CVAP estimates onmethodological and substantive grounds is not compelling. Using an alternate method for calculating Hispanic CVAP in the 2dSuffolk District in the Plaintiffs' Plan, Harmon undertook toexpand the range of Hispanic CVAP for the Plaintiffs' Plan 2dSuffolk District from 25.93% to 45.23% with a midpoint of 35.58%.We do not find Harmon's methodology persuasive. Harmon did notpresent any reasoned basis for his alternative. Hisinadequately-explained methodological preferences appear to besimply an attempt to stretch Brace's CVAP figures statistically,and we therefore conclude that the range Harmon reported forHispanic CVAP in the 2d Suffolk District is artificially wide.Brace's range of 29.30% to 34.40% is a more credible estimate ofHispanic CVAP for the 2d Suffolk District under the Plaintiffs'Plan. It bears emphasizing as a substantive matter that evenunder Harmon's strained analysis, the highest point in the rangefor the Hispanic CVAP for the 2d Suffolk District falls nearlyfive percentage points below a statistical majority and themidpoint is nearly fifteen percentage points below a statisticalmajority.

(iii) Plaintiffs' Failure to Show a Statistical Majority Hispanic CVAP in Their Proposed 2d Suffolk District is Arguably Fatal to Their § 2 Claim

Turning to the specific legal issue concerning theprescriptiveness of a statistical majority, we again confront thequestion we were able to avoid in Black Political Task Force:whether a bright-line mathematical rule should be used todetermine what specific level of CVAP is needed to satisfy the first precondition of Gingles. As we noted in Black PoliticalTask Force, the majority of courts that have specificallyreached the question have adopted an absolute rule requiringplaintiffs to demonstrate that under an alternative plan thepopulation of the minority group bringing the litigationcomprises a statistical majority of the total relevant populationin the affected district.13 300 F. Supp.2d at 299; see,e.g., Valdespino, 168 F.3d at 852-53; Cousin, 145 F.3d at828-29; McNeil v. Springfield Park Dist., 851 F.2d 937, 943-45(7th Cir. 1988), cert. denied, 490 U.S. 1031 (1989); Parker v.Ohio, 263 F. Supp.2d 1100, 1104-05 (S.D. Ohio 2003)(three-judge panel), aff'd, 124 S.Ct. 574 (2003). Such a rule,applied here, would necessarily end the § 2 inquiry because, evenwere we to accept Harmon's inflated CVAP numbers, plaintiffs areunable to demonstrate a statistical majority for Hispanics in the 2dSuffolk District under their alternative plan.

We recognize that the Supreme Court has never endorsed abright-line statistical majority rule and has explicitly leftopen the issue of whether so-called "crossover districts," inwhich minority groups constitute under 50% of the relevantpopulation in the proposed district but with the help ofnon-minority crossover votes have the ability to elect preferredofficials, are viable alternatives under the first prong ofGingles.14 See, e.g., De Grandy, 512 U.S. at1008-09; Voinovich, 507 U.S. at 154; Growe v. Emison,507 U.S. 25, 41 n. 5 (1993).

The First Circuit, noting these Supreme Court reservations, has recently declined to foreclose entirely the possibility thatdistricts with less than a 50% majority can meet the firstGingles hurdle. See Metts, 363 F.3d at 11-12. Mettsprovides some superficial support for the proposition thatplaintiffs — with their 29.30% to 34.40% CVAP figures — couldactually satisfy the first Gingles requirement. A closer lookat Metts, however, reveals important differences whichdistinguish that case from this. The majority opinion in Mettsmakes clear that the decision to allow the plaintiffs to proceedrested heavily on two factors not present here. For one thing,Metts was at an embryonic stage (it had been decided in thedistrict court on a motion to dismiss, and no discovery hadoccurred). Id. at 9. For another thing, the legislativedistrict at issue had "a relatively unusual history," that is, ahistory of African Americans being able to elect their preferredcandidate even though they numbered only 26% of the relevantpopulation. Id. at 11-12. In contradistinction to Metts,discovery and trial have run their course in the case at handand, therefore, the parties have had a full and fair opportunityto present the complete picture of voting in Chelsea,Charlestown, and East Boston. That evidence does not suggest thatthe affected communities have a comparable history of sendingHispanic-preferred candidates to the House of Representatives. We were not required to resolve the majority definition issuein Black Political Task Force because it was notoutcomedeterminative there. 300 F. Supp.2d at 299. It could beoutcome-determinative here, but given the existence ofalternative grounds for resolution, we decline to decide whetherplaintiffs' proposed district fails to meet the first Ginglesprecondition because it does not show a statistical CVAP majorityfor Hispanics.15 Having in mind the lack of prescriptiveprecedent for this court on this issue and recognizing the myriadpossible facts that may underlie a voting rights case, wehesitate to ground our decision on the conclusion that thePlaintiffs' Plan does not meet a required bright-line CVAPthreshold. Accordingly, while we find the lack of a statisticalHispanic CVAP majority under the Plaintiffs' Plan is arguablyfatal to plaintiffs' § 2 claim because we conclude it couldconstitute an inability to meet the first Gingles requirement,we nevertheless continue with the Gingles inquiry and will takeup a full totality of the circumstances analysis to provide aresolution of the case on the ultimate grounds raised. (b) Ethnic Voting Polarization:16 Cohesiveness and BlocVoting

As we did in Black Political Task Force, we will treat thesecond Gingles precondition (whether Hispanics in the 2dSuffolk District under the Plaintiffs' Plan are likely to bepolitically cohesive) and the third Gingles precondition(whether whites vote sufficiently as a bloc to defeat Hispanicpreferred candidates most of the time) together in examining theevidence. 300 F. Supp.2d at 302-10. We do so while keeping inmind the distinctive purposes of the two preconditions.

Of the elections fully analyzed by the parties' experts todetermine the extent of ethnically-polarized voting in the 2dSuffolk District, only one, the 1996 Democratic primary for the2d Suffolk District House seat, was endogenous.17 We findits usefulness for our analysis to be limited at best. This is inpart because it was not a multi-ethnic race and in part becauseneither expert could reliably determine Hispanic voters'candidate of choice in the election. The mainstay of evidence concerning the ethnic votingpolarization (or lack thereof) in this case therefore comes fromthe results of seven exogenous elections. Four of the electionswere in the city of Chelsea, two were city council elections inBoston, and one was the Democratic primary for the Middlesex,Suffolk, and Essex state Senate district. Generally speaking, weglean from the evidence in the record an increasing politicalexperience and sophistication by Hispanic voters and a slowmovement over the past decade away from reflexive non-Hispanicbloc voting within the 2d Suffolk District. In order to considerthe second and third Gingles requirements in light of suchtrends, we will address the identified elections in chronologicalorder. Of these, we find the 2002 Senate primary to be mostsignificant because it is the most inclusive; it is the onlyelection in which all voters within the Enacted Plan 2d SuffolkDistrict were presented with a choice between Hispanic andnon-Hispanic candidates. We also find the recent 2001 and200318 Boston City Council elections especiallysignificant for the insights they provide regarding voting inCharlestown and East Boston, which contain the precinctsplaintiffs seek respectively to shed and to gain with theirproposed 2d Suffolk District. (i) Chelsea School Committee Elections: 1997, 1999, 2001

Latino-identified candidates (Valentin in 1997, Lopez19in 1999, and Valerio in 2001) received the most Hispanic votes inall three elections, each of which was an at-large election forseven seats. Additionally, the other Latino candidates in theelections placed high among Hispanic voters, finishing second(Lopez in the 1997 election) and third (Pazos in the 2001election). While the Latino candidates were the Hispanic voters'preferred candidates, they were last or next-to-last in thenon-Hispanic vote and they were unsuccessful. These elections ontheir face provide evidence of ethnic voting polarization by bothHispanic and non-Hispanic voters in Chelsea.

We note that the force of this evidence is diminished to someextent because the election results reveal low turnout rates forHispanic voters in these elections. The reason for this lowHispanic turnout appears to relate to the demographics of theHispanic community in Chelsea. Defendant's demographic expert,Peter A. Morrison, however, concluded that once differences in age composition and citizenship are accounted for — as they areby the use of CVAP figures — any disparities in turnover ratesbetween Hispanic and non-Hispanic voters in Chelsea completelydisappear.

In any event, low Hispanic turnout emphasizes that in at leasttwo of the elections, there was significant support for theLatino candidates by non-Hispanic voters.20 We concludethat this was so even accepting plaintiffs' suggestion that theLatino candidates were preferred candidates of Hispanic voters,but not of non-Hispanic voters. Moreover, in the votes for allbut one election,21 precinct-by-precinct analyses showthat in three of the four precincts that were over 50% Hispanicin VAP during the elections, the Latino candidates did poorly,placing only as high as fourth and more typically sixth throughtenth.22

We think that these aspects of the evidence, however, speakmore to the general issue of opportunity to elect, discussed in the totality of circumstances analysis below, and less to theissue of voter polarization. We acknowledge that low turnoutcould suggest, at least to some degree, lack of cohesion on thepart of Hispanic voters, cf. Vecinos III, 72 F.3d at 987(evidence of low turnout "may — or may not — be probative on theissue of minority cohesion"), and we do not deny that thepercentages hardly paint a picture of Latino candidates supportedexclusively by Hispanic voters. Low turnout rates, however, donot alter the conclusion which lies at the base of the second andthird Gingles prongs: that Hispanic voters who turned outstrongly supported the Latino candidates23 andnon-Hispanic voters, at least percentage-wise, did not. Seeid. at 986 ("[E]ven with a modest turnout, the actual votescast may be probative of minority cohesion if a sufficientlystrong pattern emerges.").

Additionally, we find defendant's precinct analysisindeterminate. While the poor showings by Latino candidates inprecincts with high Hispanic VAP are indeed initially striking,even defendant admitted that whether they resulted from lack ofHispanic voter support or are merely another indication of lowHispanic turnout cannot be determined. We decline to speculate asto which is the better explanation, and thus the figures carry little probative weight. We conclude that the school committeeelection results provide evidence, though not without caveats, ofethnically-polarized voting by both Hispanic and non-Hispanics inChelsea.

(ii) Chelsea City Council Election: 2001

The Chelsea city council election in 2001 was an at-largeelection for three seats, in which voters could cast up to threevotes. One of the successful candidates in the election,Avellaneda, was Latino. Avellaneda was Hispanic voters' candidateof choice, receiving 97.5% of the Hispanic votes according toregression analysis. There was also a statistically significantpositive correlation between the ethnic composition of theprecincts and the votes for Avellaneda. Unlike in the schoolcommittee elections, however, evidence of ethnicallypolarizedvoting by non-Hispanics is not especially strong.24 Evenby the calculations of plaintiffs' expert, Richard Engstrom,Avellaneda received a significant number of non-Hispanic votes(28.1% by regression but as high as 42.6% under homogenous precinct analysis), which placed him third or fourth amongnon-Hispanic voters, depending on the analytical method used.These election results indicate cohesiveness on the part ofHispanic voters but are equivocal on the question of bloc votingby the majority.

(iii) Boston City Council At-Large Election: 2001

The 2001 at-large Boston City council election sheds someadditional light on the voting preferences in Charlestown. ALatino, Arroyo — who may be considered the Hispanic preferredcandidate — was one of seven candidates seeking four city councilseats, and voters could cast up to four votes in the election.The parties' experts did not have much to say about thiselection. Engstrom reported that only 1.8% of total ballots wentto Hispanic voters and that Arroyo received 14.9% of the totalCharlestown votes, which placed him fifth among the sevencandidates failing to win a seat on the City Council.25Defendant's expert, Harold Stanley, largely discounted theelection results, stating only that given the significant supportBarrios received in Charlestown in the 2002 Democratic primary,see infra § II.A.1.b.iv, Arroyo's low placement among votersshould be taken merely as a reflection of the strength of hiscampaign and not generally as a reflection of Charlestown voters' nonpreference for Hispanic candidates. While we do not make sodismissive an assumption, we think it is appropriate to considerArroyo's 2001 finish in light of Barrios's relative success inthe area the following year as well as Arroyo's ultimate successin the 2003 City Council election, both of which weigh againsttaking the 2001 election results as unqualified evidence ofnon-Hispanic bloc voting in Charlestown.

More striking than Arroyo's performance among Charlestownvoters, however, is his relative performance among voters in thefive East Boston precincts plaintiffs seek to substitute forCharlestown in their proposed plan. Despite higher Hispanicpopulations in those East Boston precincts, Arroyo's performancethere was poorer than in Charlestown. The percentage of votes hereceived in Charlestown was 14.9%; the percentage of votes hereceived in East Boston ranged from 5.4% to 7.6% in precincts 1-4(5.4%), 1-6 (7.0%), 1-7 (7.6%), 1-8 (6.2%) and 1-9 (5.5%). Whileundoubtedly affected by low turnout resulting from lowcitizenship rates, these figures suggest the possibility that theelectability of a Hispanic candidate may be negatively affectedif East Boston is substituted for Charlestown in the 2d SuffolkDistrict as plaintiffs proposed.

(iv) Middlesex, Suffolk and Essex Senate Primary for theSenate District Representing, inter alia, all of the 2dSuffolk District under the Enacted Plan and Most of the 2dSuffolk District Under the Plaintiffs' Plan.

Three candidates competed in this 2002 Senate primary, whichincluded all of the 2d Suffolk District under the Enacted Plan and was a one-seat, one-vote election. One of the candidates wasLatino (Barrios), and the other two were white (DeMaria andGalluccio). Barrios won the election by a slim 77-vote plurality.Barrios was the overwhelming candidate of choice of Hispanicvoters in the district, receiving 95.1% of the Hispanic vote asestimated by regression analyses. The white voters' candidate ofchoice, however, was Galluccio (51% by regression), and thus,Barrios's win resulted at least partially from a split in thewhite vote between the white candidates. Together, the two whitecandidates received 54.8% of the total vote compared to the 43.7%Barrios received, and in Charlestown, Galluccio received morevotes than Barrios (51.8% to 38.9%).

While Barrios was not the non-Hispanic voters' candidate ofchoice, he nevertheless received a significant amount of supportfrom non-Hispanic voters in the election. Stanley calculated thatnon-Hispanic voters cast 1,550 of the 2,426 votes Barriosreceived in the election, and by Engstrom's regression estimates,Barrios received 39% of the non-Hispanic vote. Moreover, whileGalluccio received more votes than Barrios in Charlestown, itappears that support for Barrios there was just as strong as inthe district as a whole. Among the Chelsea precincts included inthe Enacted Plan's 2d Suffolk District, Barrios was in fact thecandidate of choice of white voters. Stanley concluded that thissupport of Barrios in Chelsea, "combined with his sizablenon-Hispanic support in Charlestown, demonstrates that a Hispanic candidate has an opportunity to win election in the area coveredby the 2d Suffolk House district."

We credit Stanley's testimony that the election resultsdemonstrate a "sizeable" non-Hispanic support for Barrios, and weconclude that while the 2002 primary results demonstratecohesiveness on the part of Hispanic voters in Chelsea, theyseriously undercut plaintiffs' contention that the white majoritywill consistently vote as a bloc to defeat Hispanic voters'candidate of choice. As an initial point, Barrios, the Hispanicvoters' candidate of choice, actually won the race. Even if welook beneath this overall result to recognize that Barrios wasnot the preferred candidate of non-Hispanic voters and give dueconsideration to the assumption that had Barrios faced only onewhite candidate, not two, he may have lost the primary, we areleft with the fact that a substantial percentage of non-Hispanicvoters supported Barrios in an election in which they had twonon-Hispanic alternatives. Indeed, Barrios was white voters'preferred candidate in the Chelsea precincts that form the coreof the 2d Suffolk District in the Plaintiffs' Plan. Thus, weconclude that the 2002 Democratic primary for the 2d SuffolkSenate district significantly undermines the conclusion thatplaintiffs have satisfied the third Gingles precondition.

(v) Boston City Council At-Large Election: 2003

The 2003 Boston City Council election occurred too close to thetime of trial to receive meaningful expert analysis.Nevertheless, the pattern evident in the 2001 City Council election remained essentially in place, except that Arroyo waselected city-wide to one of the four at-large seats. Arroyoreceived 10.5% of the ballots cast in Charlestown; this isroughly the average of the East Boston precincts (1-4 (9.72%),1-6 (11.37%), 1-7 (13.55%), 1-8 (10%) and 1-9 (10.11%)) whichundercuts further plaintiffs' contention that a Hispanicpreferredcandidate would gain an advantage by substituting East Boston forCharlestown in the 2d Suffolk District. Thus, our analysis of the2003 election returns — admittedly preliminary given the parties'incompletely-developed evaluations of the election — suggeststhat while there is reason to believe there is some degree ofethnically-polarized voting among Hispanics and non-Hispanics inboth Charlestown and East Boston, the evidence is notsufficiently substantial to provide much weight to a majoritypolarization calibration.

(vi) Conclusion

In our overall analysis of the seven elections considered here,we find plaintiffs have met the second Gingles condition bydemonstrating that Hispanic voters typically vote in a cohesivefashion. By contrast, we find that the election results, viewedas a whole and as they have evolved in the past decade, do notdemonstrate the level of ethnically-polarized non-Hispanic votingpreferences needed for plaintiffs to satisfy the third Ginglesprecondition. The most recent available evidence showingsignificant support by non-Hispanic voters for Barrios in theSenate primary, and to a lesser degree for Avellaneda and Arroyo in their respective city council races, leads us to question thedegree of non-Hispanic bloc voting and the extent to which itpervades the 2d Suffolk District either as enacted or in thePlaintiffs' Plan. In the end, we think that this supportseriously belies the conclusion, required by Gingles, that the"majority votes sufficiently as a bloc to enable it — in theabsence of special circumstances . . . usually to defeat theminority's preferred candidate." Gingles, 478 U.S. at 51. Thus,keeping in mind that "determining whether [] bloc voting existsis not merely an arithmetic exercise that consists of toting upcolumns of numbers, and nothing more," Vecinos III, 72 F.3d at989, but rather must be a "commonsense assay of all theevidence," id., we find that plaintiffs have not sufficientlydemonstrated bloc voting on the part of the majority.

Again, recognizing that our determination that plaintiffs havenot met the third Gingles requirement is based on relativelyscant electoral information about voting patterns across theentire 2d Suffolk District, we decline to rely simply on thatconclusion to enter judgment for defendant. Accordingly, we turnto the totality of the circumstances analysis.26 (2) Totality of the Circumstances

At the outset of our totality analysis, it is appropriate tostep back and reflect on the gravamen of plaintiffs' § 2 claim.Plaintiffs contended that the 2d Suffolk District's historicassociation between the city of Chelsea and the Charlestownprecincts of the city of Boston must be broken because ofchanging demographics. These demographics, they argued, demand anew association between Chelsea precincts and certain precinctsin the East Boston section of Boston. However, efforts to obtainjudicial intervention designed to form an entirely new electoraldistrict by collecting minority communities from severaldifferent pre-existing districts have been viewed skeptically bythe courts. See Goosby v. Town Bd. of Hempstead,180 F.3d 476, 501 n. 3 (2d Cir. 1999) (Leval, J., concurring) (termingargument that judicial invalidation and revision oflong-established district lines "without any showing ofdiscriminatory intent" as "alarming and far beyond the probablecontemplation of Congress"), cert. denied, 528 U.S. 1138(2000). And courts have long held that maximization is not theproper office of § 2. Rodriguez v. Pataki, 308 F. Supp.2d at386 (observing disapprovingly that claim indicated "not the useof the Voting Rights Act to remedy a prohibited practice of votedilution but rather a proposed use of section 2 to maximizeminority voting strength" (citing De Grandy, 512 U.S. at1017)); see also Latino Political Action Comm. v. City ofBoston, 784 F.2d 409, 412 (1st Cir. 1986) (rejecting definitionof vote dilution as "minimization, cancellation or submergence of minority votingstrength below what might otherwise have been" (emphasis inoriginal)). With these broad principles in mind, we turn to theparticulars of a totality analysis.

We begin with defendant's assertions that the Enacted Plan andthe Plaintiffs' Plan, when compared precinct by precinct, are notsignificantly different in ethnic composition. This is in manyways analogous to the proportionality assessment we undertook inthe companion case, see Black Political Task Force,300 F. Supp.2d at 311-12, except here, because the focus is only on onedistrict, the 2d Suffolk District, the analysis is at theprecinct, not district, level. Defendant pointed out that boththe Enacted Plan and the Plaintiffs' Plan kept the most Hispanicprecincts in the 2d Suffolk District and place four relativelynon-Hispanic Chelsea precincts in the 16th Suffolk District.Defendant further argued that the four Chelsea precincts includedin the 16th Suffolk District under the Enacted Plan were some ofthe least Hispanic precincts in Chelsea (ranking tenth, eleventh,fourteenth, and fifteenth in Hispanic VAP out of sixteen) and,perhaps more importantly, are not significantly more Hispanicthan the four precincts included in the 16th Suffolk Districtunder the Plaintiffs' Plan.

These observations concerning plaintiffs' tinkering with theChelsea precincts add little to the information provided by themore general CVAP and VAP figures. Moreover, they gloss over thefundamental feature of the Plaintiffs' Plan, which is the replacement of Charlestown with precincts from East Boston. Muchmore germane to our purposes here, therefore, is defendant'scontention that the Plaintiffs' Plan, by replacing Charlestownwith East Boston, does not significantly increase Hispanicvoters' ability to elect preferred candidates.

On this score, plaintiffs have provided little evidence eitheron the voting preferences and patterns of the East Bostonprecincts included in the 2d Suffolk District under thePlaintiffs' Plan or on the anticipated impact of replacingCharlestown precincts with East Boston precincts.27Moreover, as we discussed in our analyses of the Boston CityCouncil elections, evidence from two recent elections indicatesthat Arroyo received no greater support in the East Bostonprecincts included in the Plaintiffs' Plan 2d Suffolk Districtthan he did in Charlestown. We are diffident about placing toomuch weight on the success (or lack thereof) of a singlecandidate in an isolated election, since it might reflect no morethan the strength of the particular candidate in a particularcampaign year. Nevertheless, we find the Arroyo evidence useful herebecause it shows a lack of meaningfully greater support forArroyo in East Boston as compared to Charlestown and the relevantcomparison can be made within a single election for two separateyears.

We also find probative the evidence offered by defendant thatthe voter registration rate in East Boston is a low 11.3% andthat the Hispanic CVAP in East Boston is only 14.2% of EastBoston's CVAP, apparently the result of a large number of newHispanic immigrants. This voter registration evidence is relatedto evidence concerning voter turnout to which we alluded in ourpolarization discussion, and we now take up the two types ofevidence together.

While the turnout issue was of contextual importance to ourvoter polarization analysis, it has a substantial impact on thequestion of ability to elect. The fact that Hispanic votersregister at a low rate in East Boston and turn out at low ratesin Chelsea, at least for certain elections, significantlyundercuts plaintiffs' contention that implementation of theirproposed plan would substantially increase Hispanic voters'electoral opportunities. The low rates emphasize the concernsraised by plaintiffs' difficulties in satisfying the firstGingles precondition. Given that the Hispanic CVAP numbers forthe Plaintiffs' Plan were submajority to begin with, the factthat only a portion of this CVAP population can be expectedregularly to go to the polls further undermines plaintiffs' case. This is demonstrated in the Chelsea school committee elections inwhich the strong preferences of the Hispanic voters were, throughlow turnout and registration rates, diminished to the point thatthe Latino candidates could not rely on the Hispanic vote tocarry them.

We recognize that low turnout rates can themselves be theresult of official discrimination and that we must therefore becautious in treating that circumstance as evidencing lack offorce in plaintiffs' case. See Vecinos III, 72 F.3d at 986("[L]ow voter turnout in the minority community sometimes mayresult from the interaction of the electoral system with theeffects of past discrimination, which together operate todiscourage meaningful electoral participation."). But plaintiffsprovided insufficient evidence that low turnout, at leastrecently, can be tied to discriminatory election practices. Infact, the record shows that Hispanics turned out in high rates tosupport Barrios in 2002 and Avellaneda in 2001. Thus, the patternof low turnout in the Chelsea school committee elections does notseem to result from any current hindrance caused by officialdiscrimination but rather from the interaction of demographicfactors and the relatively lacking salience of school committeeelections.

Plaintiffs sought to divert attention from the low registrationin East Boston and turn it to a comparison of the ethnicdemographics of Chelsea and Charlestown. They argued that the lowregistration in East Boston means only that the central effect of their proposed plan, at least in the short run, wouldbe to cut out the influence of the heavily non-HispanicCharlestown precincts and thereby maximize the influence of theheavily Hispanic Chelsea precincts. The East Boston precinctswould, they seem to have conceded, act much like place holdersuntil eventually the Hispanic community is able to mobilizeHispanic voters in East Boston.

This response fails in at least two respects. First, as notedabove, plaintiffs have not provided any supportive electoralevidence as to the East Boston precincts, and thus theircontention that inclusion of them in the 2d Suffolk Districtwould minimize the negative presence of Charlestown and allow theHispanic community in Chelsea to take center stage is basedentirely on speculation; indeed, it is contradicted by the onlyevidence on this point, that Arroyo has not received more supportin East Boston than he has in Charlestown.

More importantly, plaintiffs' response falters because it restson an assumption about which we are skeptical: that there isdispositively significant ethnic polarization of votingpreferences by non-Hispanics in Charlestown and Chelsea. As notedin the previous section, the support for Barrios and Arroyo inCharlestown indicates a lack of significant non-Hispanic blocvoting there, and the non-Hispanic support for both Avellanedaand Barrios in elections involving Chelsea precincts indicatesthe same in Chelsea. With respect to evidence of "lack of responsiveness on the partof elected officials to the particularized needs of the membersof the minority group," S. Rep. No. 97-417, at 29 (1982),reprinted in 1982 U.S.C.C.A.N. at 207, while plaintiffs offeredevidence of specific, if anecdotal, instances of unresponsivenessby certain elected officials in past years, several of plaintiffsreadily admitted that Representative O'Flaherty, the House memberfrom the 2d Suffolk District since 1996 and a Chelsea residentsince 1983, has, in fact, been responsive to the needs of theHispanic community in the district. Indeed, the evidence is quitestrong that O'Flaherty has been attuned to the needs of hisHispanic constituency.

We do not find evidence pertaining to the "extent to whichmembers of the minority group have been elected to public officein the jurisdiction," id., to be compelling. Plaintiffs pointto a number of unsuccessful campaigns by Latino candidates inChelsea, including the school committee elections considered inour voter polarization analysis. Yet the success of the Barrios2002 senate campaign in the relevant portions of the 2d SuffolkDistrict suggests that attractive Hispanic candidates withwellrun campaigns are currently quite competitive within theEnacted Plan's configuration of the 2d Suffolk District.

As in the Black Political Task Force case, plaintiffs hereraised a number of concerns about the redistricting processitself, arguing that the procedures used by the Committeeunfairly excluded participation by minorities generally and the Hispanic community in particular. We reiterate our conclusion inthe companion opinion that these contentions are not persuasiveas evidence of improper racial considerations. The record showsthat the Committee held five public hearings and, moreimportantly, that the refusal to allow further publicparticipation resulted from the Committee's policy to limitcontact with the public to the hearings, which it applied withoutregard to race or ethnicity. Thus, the Committee's apparentdisinclination to consider the two alternative plans presented byplaintiff CCHA during the redistricting process was consistentwith its general policy and does not indicate that any of theCommittee's procedures were discriminatory.

The issue of incumbency, on which we focused in BlackPolitical Task Force, 300 F. Supp.2d at 313-15, takes on adifferent perspective in this case. In Black Political TaskForce we found that the Committee, in textbook fashion,manipulated district lines to pack the 6th Suffolk District withthe area's black population — thereby stripping that populationfrom the 11th, 12th, and 15th Suffolk Districts — and, moreover,that the Committee performed this manipulation with an eye towardusing race as a proxy in an effort to protect incumbents. Crucialto this finding was evidence that the Committee at the lastminute adopted the so-called Fitzgerald Amendment in which itscrapped a plan to create a majority-black district without anincumbent in order to protect Representative Fitzgerald'sreelection bid. Id. at 315. No such ethnically-related incumbency protection evidence can be found in this case. Whilethe protection of incumbents no doubt played a central role inthe redistricting of the 2d Suffolk District, we find no evidencethat the Committee used ethnicity as a proxy for such protectionas it did with race in redrawing the 6th Suffolk District (andthose surrounding it).

Plaintiffs urged upon us the inference that the Committeeimpermissibly considered ethnicity in drawing the 2d SuffolkDistrict because the Committee ignored an obvious opportunity tojoin communities of interest in Chelsea and East Boston and tounite a growing Hispanic community.28 The evidence,however, is not as obvious as plaintiffs would have it. Indeed,neither of the two alternative plans submitted to the Committeeby plaintiff organization CCHA contemplated the inclusion ofsubstantial parts of East Boston in the 2d Suffolk District. Theidea of uniting the Hispanic communities of East Boston andChelsea therefore seems to have been a post-enactment developmentdevised by plaintiffs' experts for purposes of this litigation.This evolution in plaintiffs' contentions undercuts the argumentthat the Committee should have considered and implemented such anidea on its own and that its failure to do so gives rise to aninference of discriminatory animus.29

Plaintiffs alternatively contended, setting aside East Boston,that we should infer discriminatory intent from the Committee'sdecision to exclude Chelsea precincts rather than Charlestownprecincts from the 2d Suffolk District under the Enacted Plan.They claimed that there is no explanation for this decision otherthan discriminatory animus. We disagree. History sufficientlyexplains the Committee's decision. Prior to the currentredistricting, certain of the northern precincts of Chelsea werein the 16th, not the 2d, Suffolk District while Charlestown hadfor many years been maintained intact in the 2d Suffolk District.The ultimate effect of the current redistricting process was torearrange somewhat the northen Chelsea precincts that would beplaced in the 16th Suffolk District in order to meet thereconstituted target populations. Thus, the evidence shows that ahistorical pattern, not ethnically-related considerations, explains the decision to keepCharlestown intact.

Up to this point, we have touched on the issue ofdiscriminatory animus without directly addressing it. As we notedearlier, proof of discriminatory intent is not required for a § 2claim. Moreover, if plaintiffs can sufficiently establish thatredistricting impermissibly dilutes a minority group's votingstrength, claims by defendant that the practice was adopted forneutral, nondiscriminatory reasons are unavailing. See S. Rep.No. 97-417, at 29 (1982), reprinted in 1982 U.S.C.C.A.N. at 207n. 117; Solomon v. Liberty County Sch. Bd., 899 F.2d 1012, 1016(11th Cir. 1990), cert. denied, 498 U.S. 1023 (1991). This isnot to say, however, that proof of animus has no place inassessing the totality of the circumstances; if plaintiffs candemonstrate discriminatory animus on the part of the Committee,that certainly would play into the totality of the circumstances.We take up the intent issue more directly in consideringplaintiffs' Equal Protection claim and observe here only that wefind no evidence of discriminatory intent on the part of theCommittee.

We do not discount the history of racial polarization,particularly in Charlestown. We recognize the impact ofsocioeconomic disparities upon the Hispanic community. And we donot minimize the significance of anecdotal evidence offered byplaintiffs of incidents of racism encountered by Hispaniccandidates. But we do not find significantly probative evidence of any current official discrimination that touches upon Hispanicparticipation in the democratic process nor do we find anystructural dimensions to the machinery of elections which hindersminority participation. We find that ethically-based prejudice isless a factor in the political life of the 2d Suffolk District asnow enacted than it has been in the past. "Viewing the evidenceas a whole, this court cannot say that the interaction of[ethnicity] and the electoral system [as it pertains to the 2dSuffolk District] now results in `significantly diminishedopportunities for minority participation in electivegovernment.'" Vecinos De Barrio Uno v. City of Holyoke,960 F. Supp. 515, 527 (D. Mass. 1997) ("Vecinos V") (quoting VecinosIII, 72 F.3d at 983-84). Our evaluation of the totality of thecircumstances satisfies us that plaintiffs have not successfullymade out a § 2 claim.

B. Constitutional Claims

We observe, at the outset of the constitutional branch of ouranalysis, that failure to establish a § 2 claim is generallyconsidered mutatis mutandis fatal to constitutional claimsbecause the latter, unlike the former, require proof ofdiscriminatory intent. See Latino Political Action, 784 F.2dat 415 ("[T]o prevail on [their constitutional claims],appellants must satisfy a burden of proof equal to or greaterthan that already discussed."); see also Barnett v. City ofChicago, 141 F.3d at 701 ("[Section 2], unlike theconstitutional provision, does not require any showing ofintentional discrimination, and by the same token is not limited to impairments of minorityvoting power so egregious as to compel an inference of suchdiscrimination." (citations omitted)). However, we hesitate todispose mechanically of plaintiffs' constitutional claims becausewe think it may be possible, as an analytical matter, for them toprove the requisite intent for that claim despite their inabilityto make out a § 2 claim.30 But in the final analysis, wefind that plaintiffs have failed to demonstrate the Committeeintentionally discriminated against Hispanics in drawing the 2dSuffolk District.

We have already effectively addressed the bulk of plaintiffs'contentions concerning discriminatory intent. Thus, as notedabove, plaintiffs' numerous submissions concerning the manner inwhich the Committee deflected an effort by Hispanic individualsand groups to participate in the redistricting process, includingCCHA's effort to submit its two alternative plans (whichironically were designed not so much to add East Boston to thedistrict as to keep Chelsea whole), do not suggest discriminatoryanimus on the part of the Committee but rather are a reflection of its policy to limit public participation to thefive public hearings.

As also noted above, we find that an inference ofdiscriminatory intent does not properly arise out of theCommittee's failure to combine East Boston and Chelsea or tofragment Charlestown instead of Chelsea. Doing so might havefurther benefitted the Hispanic community by maximizing anethnically-based community of interest in a fashion which wouldhave future, if not immediate, electoral implications. But thefailure to do so, absent some further showing of intent, does nothere demonstrate a constitutional violation. Rather, the choicemade in the Enacted Plan as to the 2d Suffolk District fallswithin the wide discretion of legislatures to decide how best toensure equal voting opportunities. See Georgia v. Ashcroft,123 S.Ct. 2498, 2511 (2003).

Finally, we offer some additional comments about the role ofincumbency protection in this case. The law in this area is not amodel of clarity. But even assuming that a cause of action existsfor plaintiffs who can prove that a legislature used ethnicity asa tool to achieve the otherwise legitimate redistricting goal ofincumbency protection, see generally, Clark v. PutnamCounty, 293 F.3d 1261, 1271-72 (11th Cir. 2002); Barnett v.Daley, 32 F.3d 1196, 1199 (7th Cir. 1994); Garza, 918 F.2d at771; Ketchum v. Byrne, 740 F.2d 1398, 1408 (7th Cir. 1984);Rybicki v. State Bd. of Elections, 574 F. Supp. 1082, 1109(N.D. Ill. 1982) (three-judge court), the plaintiffs here have failed to provide even a scintilla of evidence to support afinding that the Committee manipulated the Hispanic populationdata in an effort to secure victory for the incumbent in the 2dSuffolk District, Representative O'Flaherty. In the absence ofcredible evidence, an ipse dixit — that RepresentativeO'Flaherty's success depended on the fracturing of the Hispanicpopulation — is not enough to carry the day. This is especiallytrue given the circumstances of this case, where the decision topair Chelsea with Charlestown instead of East Boston canlogically be attributed to a linkage that has existed for atleast thirty years.

We therefore conclude that plaintiffs have failed sufficientlyto demonstrate discriminatory intent on the part of the Committeein drawing the 2d Suffolk District lines, and we accordingly findfor the defendant on the constitutional claims.

III. CONCLUSION

For the reasons set forth more fully above, we direct that arenewed final judgment be entered for the defendant.

1. While the individual plaintiffs here are Latino and themajority of plaintiffs' briefs use the term "Latino," plaintiffsuse the terms "Latino" and "Hispanic" interchangeably in manyportions of their filings, especially when referencingdemographic information. Any distinctions between the terms areof no significance in this case. For consistency and ease ofdiscussion, we follow the Census Bureau's use of "Hispanic" (and"non-Hispanic") in its demographic statistics because thosestatistics form the crux of plaintiffs' claims. However, where,as is the case for the individual plaintiffs, the recordspecifically identifies an individual or individuals as "Latino"or "Latina" we will use those terms accordingly.

2. In general, we use "Suffolk District" to refer to SuffolkHouse districts. Where we refer to other types of districts —such as Senate districts — we will so specify.

3. The House redistricting committee determined that tocomport with the one-person, one-voter requirement of the UnitedStates Constitution, see Georgia v. Ashcroft,123 S.Ct. 2498, 2516 n. 2 (2003), the population for each district wouldhave to be between 37,698 and 41,666. See Black Political TaskForce, 300 F. Supp.2d at 294-95.

4. Two Chelsea precincts, 3-1 and 3-2, were outside the 2dSuffolk District prior to the 2001 redistricting. However, theeffect of the Enacted Plan was not precisely to move precinct 3-1back into the 2d Suffolk District and precincts 3-4, 4-2, and 4-3out. This is because just before the redistricting process beganin 2001, local communities redrew precinct lines, and thus, thelines for precinct 3-2 under the Enacted Plan were different thanthey were under the 1993 redistricting plan.

5. Neither of CCHA's pre-enactment plans would have created adistrict with a majority Hispanic voting age or citizen votingage population.

6. Two different plaintiffs' "plans," in addition to theEnacted Plan, were the subject of analysis at trial. The firstwas referred to as the "Harmon Plan" and the second was a revisedversion of the Harmon Plan, which we considered in our BlackPolitical Task Force liability opinion and to which we referredin that opinion as "Plan No. 2." See 300 F. Supp.2d at 302. Weneed not, however, concern ourselves with the differences betweenthe plaintiffs' two alternative plans because they are identicalwith respect to the 2d Suffolk District. Thus, we need not bemore specific than to refer to the "Plaintiffs' Plan" in thiscase.

7. The parties framed this issue prior to trial. Defendantmoved for summary judgment on the basis that plaintiffs could notsatisfy the first Gingles condition, but we denied the motionwithout prejudice, deferring disposition of the issue until aftertrial to allow the parties to develop a complete record. Cf.Metts v. Murphy, 363 F.3d 8 (1st Cir. 2004) (en banc) (percuriam) (declining to resolve Gingles majority issue atcomplaint stage).

8. Plaintiffs offered the testimony of two experts, Harmon andRichard Engstrom. Harmon's testimony concerned demographicstatistics while Engstrom's testimony focused on electoralanalyses.

9. Brace was defendant's expert as to demographic statistics.Defendant's second expert, Harold Stanley, testified as toelectoral analyses.

10. We note that as an alternative to reliance on VAPsimpliciter as the statistical measure for compliance with thefirst Gingles precondition, certain courts have indicated thatrequiring a demonstration of a supermajority of VAP is warrantedwhere there is evidence of low citizenship rates. In PuertoRican Legal Defense & Education Fund, Inc. v. Gantt,796 F. Supp. 681 (E.D.N.Y. 1992), for example, the court rejected anybright-line test for determining the VAP necessary to produce aneffective voting majority, noting that "[e]ven higher VAPpercentages [than 65%] may be required in Hispanic districts toaccount for their even lower citizenship ratio, lower voterturnout, and lower voter registration." Id. at 689. Because wefind CVAP to be an appropriate measure, we need not addresswhether a supermajority might be required when using VAP as themeasure.

11. We recognize that as a consequence, differences in thedemography of districts may yield different effective weights forvotes when, as is customarily the case, representational equalityfor purposes of the one-person, one-vote obligation is measuredby total population and electoral equality for purposes ofexamining vote dilution is measured by some standard relating tovoter qualification. Thus, for example, even when the totalpopulation is evenly-distributed among districts, if thepopulation of a particular district is disproportionately belowvoting age as compared to other districts, the voting strength ofindividual voters in that district is comparatively strong — thatis, fewer voters in the district would be needed to elect arepresentative than would be needed in the other districts wherethe voting age populations is proportionally higher. Similarly,when a citizenship qualification is considered, the effect isthat even when total population is evenly-distributed amongdistricts, fewer citizens of voting age would be needed to electa representative in districts with disproportionately low CVAPnumbers than in districts with higher CVAP numbers. Suchconsequences of using total population to measurerepresentational equality and a different standard in theevaluation of the fairness of voting practices and procedures,however, have not yet prompted judicial disapproval.

12. The 90% and 95% confidence intervals were 30.47% to 33.22%and 30.25% to 33.44%, respectively.

13. We note that a Ninth Circuit panel has held "that, to theextent that Gingles does require a majority showing, it does soonly in a case where there has been no proof of intentionaldilution of minority voting strength." Garza, 918 F.2d at 769.This holding is a bit puzzling. The ability to prove a § 2 casewithout proof of intent, a circumstance which Gingles involved,has generally been viewed as a substantial relaxation of theproof of a statutory violation. Indeed, the principal differencein proof between a § 2 vote dilution case and one brought underthe 14th Amendment resides in the necessity to prove intent inthe latter but not the former. Garza actually involved bothVoting Rights Act and Equal Protection claims, but the panelchose to offer its unique observation concerning the "extent" ofthe first Gingles condition despite the fact that the liabilityportion of the opinion, where the observation was located, couldas easily have been directed to the Equal Protection claimwithout offering this construction regarding the Voting RightsAct. In any event, Garza's construction of the first Ginglesprecondition, even if applied here, would have no effect because,as we determine below, plaintiffs ultimately fail to demonstratediscriminatory intent on the part of the Committee.

14. The Supreme Court has also not resolved whether a claiminvolving an "influence" district — one in which a minoritygroup, while unable to elect preferred candidates even withcrossover support, can exercise substantial influence in anelection — is viable under § 2. See Gingles, 478 U.S. at 46n. 12; see generally Rodriguez v. Pataki, 308 F. Supp.2d at375-76 (distinguishing crossover and influence districts).Plaintiffs here have explicitly disavowed an influence districtclaim. Defendant argued that plaintiffs similarly have failed toraise, or have explicitly waived, any potential crossoverdistrict claims. However, the summary judgment hearing transcriptdefendant pointed to in support of this contention is notdefinitive on this point. Plaintiffs' counsel, on questioningfrom the court, merely confirmed that plaintiffs were "notclaiming a coalition district." But plaintiffs have beensteadfast in maintaining that they were pursuing a claim basedupon an "effective" majority. We decline to foreclose anycrossover claim on the basis of inartful labeling. This is anevolving area where precision in characterization has not yetbeen fully achieved. Moreover, insofar as plaintiffs can be saidto have denied pursuing a "crossover" district claim, they did soonly in arguing that such a claim was unnecessary because theysatisfied the first prong of Gingles given the Hispanic VAPnumbers. Thus, we do not view their somewhat ambiguous statementsto be a broad waiver as to all potential "crossover" claims.

15. We note that a three-judge court in the Southern Districtof New York, while accepting arguendo that a district in which aminority with a CVAP of 45.4% "may under certain circumstancessatisfy the first Gingles precondition," Rodriguez v. Pataki,308 F. Supp.2d at 405-06, also found as a matter of fact that adifferent district with a CVAP of 36.9% could not satisfy theseveral Gingles preconditions. Id. at 399-400; see alsoid. at 407-09 (comparing questions presented by twodistricts).

16. We use the term "ethnically-polarized" and the phrase"ethnic voting polarization" to accord with our general use ofthe term "Hispanic" (and "non-Hispanic"). See supra note 1.We recognize the potential non-fit of these terms with referencesto white voters, but for clarity of discussion we omit inclusionof terms related to racial polarization.

17. Endogenous elections are those in the affected electoraldistrict; exogenous elections are those for other electoraloffices in the general geographic area of the affected electoraldistrict. See generally, Black Political Task Force,300 F. Supp.2d at 304-10.

18. The 2003 Boston City Council election took place on theeve of trial and consequently was not the subject of meaningfulexpert analysis. That election, however, was addressed in theparties' submissions and provides significant insights, even inthe absence of meaningful expert analysis, regarding thePlaintiffs' Plan.

19. We recognize that the record indicates Lopez is notHispanic but is Cape Verdean. In this connection, we note thatthe plaintiffs' expert, Engstrom, who based his analysis onsurnames, misclassified Lopez. Because we do not give anyparticular individual weight to the election Lopez won, andbecause the results for that election fit within the same generalpattern of the other two school committee elections, we think themisclassification, which may (or may not) have been shared byvoters, is potentially of little import. We report it to providea full context for the School Committee elections and note thatthe misidentification underscores the often ambiguous quality ofethnic categories.

20. Stanley reported that in the 1997 election over 230 ofValentin's 825 votes came from non-Hispanics and Lopez receivedmore non-Hispanic votes than Hispanic votes (435 to 359). Stanleycalculated that Lopez also received more non-Hispanic votes thanHispanic votes in the 1999 election (548 to 342). For the 2001election, Stanley calculated that Valerio received a substantialportion of his votes from non-Hispanic voters (452 out of 998)and that Pazos received more votes from non-Hispanics thanHispanics (528 to 268).

21. The correlation for Pazos in the 2001 election waspositive (.545) but not statistically significant.

22. The candidates, however, did well in the precinct with thehighest Hispanic VAP (precinct 2-2), where the top Latinovotegetter placed first in the precinct in each of the threeelections.

23. We note that Pazos's receipt of only 36.8% of the Hispanicvote in the 2001 election may belie this conclusion to someextent, but we are concerned more with the general trends andresults than any particular result, which may have resulted fromany number of factors unrelated to voter polarization.

24. Defendant's expert, Stanley, also pointed out thataccording to the raw election return numbers, almost half ofAvellaneda's votes came from non-Hispanic voters (733 out of1,471). Unlike with the school committee elections, this does notseem to be a result of low voter turnout. Indeed, Engstromreported that 22.5% of those receiving ballots were Hispanic andChelsea's voter registration for Hispanics at the time was 25.3%.However, we take the same view about actual election returns hereas we did with the school committee elections, which is to saythat we think they are not particularly probative on the issue ofvoter polarization but rather indicate the import of consideringbottom-line numbers in assessing the relative voting strength ofgroups to be considered as part of the totality of circumstancesanalysis.

25. In a supplemental affidavit, Stanley reported in a table atally of the votes received by the seven candidates, andaccording to these numbers, Arroyo finished fifth, not sixth, asEngstrom asserted. This slight discrepancy (based on a differenceof just over 100 votes) makes no difference in our evaluation ofthese election results.

26. We note, however, that one of the factors to be consideredas part of the totality of the circumstances inquiry is the"magnitude of racially polarized voting within the relevantjurisdiction." S. Rep. No. 97-417, at 28-29, reprinted in1982 U.S.C.C.A.N. 177, 206-07. Consequently, we will revisit thequestion of polarized voting in our totality of the circumstancesanalysis.

27. In this regard, we find Engstrom's "reaggregation"analysis of the 2002 Senate primary, in which he estimatedelection results under the Plaintiffs' Plan, to be of limitedprobative value. Engstrom reported that in the Chelsea precinctsincluded in the 2d Suffolk District as drawn in the Plaintiffs'Plan, Barrios won 53.2% of the votes. However, Engstrom'sanalysis did not include any of the East Boston precinctsincluded in the 2d Suffolk District under the Plaintiffs' Plan.He merely engaged in speculative extrapolation to reach theconclusion that "[g]iven that the Latino percentage of the VAP inthe five East Boston precincts in the district is 44.6% percent,it would appear that Mr. Barrios is likely to have won a majorityof the votes in the illustrative district." He presented noelectoral data to support this claim.

28. Plaintiffs noted that the Committee was aware of — albeitsomewhat surprised by — the growing Hispanic population in EastBoston, as it stated in its report regarding the RedistrictingAct: A decade ago, no one could have predicted the largest Hispanic population in the city of Boston would not be in Jamaica Plain or Roxbury or Dorchester or the South End, but in East Boston.

29. We recognize that there are geographic and socio-economicdimensions as well to plaintiffs' community of interest argument.Two bridges allow for substantial foot and car traffic overChelsea Creek, which separates Chelsea and East Boston. Incontrast, the principal direct connection over the Mystic River,which separates Chelsea and Charlestown, is an elevated tollbridge with no sidewalks. Moreover, plaintiffs submittedsubstantial evidence demonstrating that Chelsea and East Bostonare similar, and Chelsea and Charlestown are dissimilar, on anumber of socio-economic indicators. This evidence, however, doesnot establish that ethnic considerations, as opposed to an effortto provide minimal disruption to the historic configuration ofthe 2d Suffolk District, played any role in the redistrictingprocess.

30. We note, however, that such a possibility approachesterritory unexplored, as far as we can tell, in the case law. Itis unclear what remedial outcome a successful constitutionalclaim would entail, given plaintiffs' failure to demonstrate thattheir alternative plan is superior to the Enacted Plan, at leastas far as § 2 criteria are concerned. See Garza, 918 F.2d at771 ("[S]ome showing of injury must be made to assure that thedistrict court can impose a meaningful remedy." (emphasis inoriginal)).

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