           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0134P (6th Cir.)
                    File Name: 00a0134p.06


UNITED STATES COURT OF APPEALS
                   FOR THE SIXTH CIRCUIT
                     _________________


                                  ;
                                   
 RURAL WEST TENNESSEE
                                   
 AFRICAN AMERICAN-AFFAIRS
                                   
 COUNCIL, et al. (98-6718),
                                   
                                      Nos. 98-6718/6778
 PHILLIP R. LANGSDON, et al.
                                   
 (98-6778),                         >
           Plaintiffs-Appellees,   
                                   
                                   
                                   
            v.

DON SUNDQUIST, Governor of 
                                   
the State of Tennessee, et al.,    
        Defendants-Appellants. 
                                  1
       Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.
Nos. 92-02407; 92-02415—Jerome Turner, District Judge.
                     Argued: March 16, 2000
               Decided and Filed: April 3, 2000*
   Before: JONES, BATCHELDER, and CLAY, Circuit
                      Judges.



    *
     This decision was originally issued on April 3, 2000. It is now being
issued to incorporate Judge Jones’ separate concurring opinion.

                                    1
2    Rural West Tennessee, et al.          Nos. 98-6718/6778       Nos. 98-6718/6778         Rural West Tennessee, et al.   23
     v. Sundquist, et al.                                                                            v. Sundquist, et al.

                    _________________                              long as it grants equal opportunity to some other set of
                                                                   minority voters. This conclusion is contrary to the Supreme
                         COUNSEL                                   Court’s interpretation of § 2, which clearly provides that a
                                                                   state may not remedy vote dilution in one area by legal
ARGUED: Michael W. Catalano, OFFICE OF THE                         compliance in another.
ATTORNEY GENERAL, Nashville, Tennessee, for
Appellants. Laughlin McDonald, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, Atlanta, Georgia, John
L. Ryder, APPERSON, CRUMP & MAXWELL, Memphis,
Tennessee, for Appellees. ON BRIEF: Michael W.
Catalano, Paul G. Summers, OFFICE OF THE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellants. Laughlin
McDonald, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, Atlanta, Georgia, John L. Ryder,
APPERSON, CRUMP & MAXWELL, Memphis, Tennessee,
John R. Walker, BAKER, DONELSON, BEARMAN &
CALDWELL, Memphis, Tennessee, Richard H. Dinkins,
DODSON, PARKER, DINKINS & BEHM, Nashville,
Tennessee, for Appellees.
  BATCHELDER J., delivered the opinion of the court, in
which CLAY, J., joined. JONES, J. (pp. 18-23), issued a
separate concurring opinion.
                    _________________
                        OPINION
                    _________________
  BATCHELDER, Circuit Judge. Don Sundquist, Governor
of the State of Tennessee, and other state officials appeal from
a district court order finding that a districting plan for the
Tennessee House of Representatives unlawfully dilutes
African-American voting strength in violation of § 2 of the
Voting Rights Act, 42 U.S.C. § 1973, and enjoining further
use of that plan. The State further requests a stay of the
district court’s order for elections scheduled to begin in
August of 2000. For the reasons set forth below, we affirm
the order of the district court, and deny the motion for a stay
as moot.
22   Rural West Tennessee, et al.         Nos. 98-6718/6778       Nos. 98-6718/6778           Rural West Tennessee, et al.       3
     v. Sundquist, et al.                                                                             v. Sundquist, et al.

(W.D. Tenn. 1998). While one might expect a political group                                      I
to wield significant influence in a district in which it
comprises at least one-quarter of the voting age population,         In April of 1992, the Tennessee General Assembly enacted
the realities of white bloc voting command that we apply a        legislation reapportioning the State’s single-member House of
more flexible standard in assessing the extent to which           Representatives and Senate districts. Tenn. Code Ann. §§ 3-
purported influence districts provide minorities with an equal    1-102 & 103 (1992) (repealed 1994). Prior to the 1992
opportunity to elect representatives of choice.                   primaries, the Rural West Tennessee African-American
Notwithstanding a minority population that may even               Affairs Council (“RWTAAC”) and certain registered voters
approach upwards of 40% in a district, when, as here, 90% of      in Tennessee filed suit charging that both the Senate Plan and
whites coalesce along racial lines to defeat the black            the House Plan violated § 2 of the Voting Rights Act and the
community’s preferred candidate of choice, the ability of         Thirteenth, Fourteenth, and Fifteenth Amendments to the
blacks to “influence” elections in these circumstances is         United States Constitution. Phillip R. Langsdon and other
specious. The bright-line 25% rule obscures the realities of      registered voters in Tennessee filed suit challenging the
white bloc voting, and implies black “influence” that may not     validity of the House Plan on the grounds that it violated § 2
in fact exist. Accordingly, I would expressly reject the 25%      of Voting Rights Act and the “one person, one vote” doctrine
rule, and adopt a more flexible, case-by-case standard that       of the Fourteenth Amendment; the plaintiffs also challenged
takes white bloc voting into account.                             the House Plan on other grounds subsequently dismissed.
  Second, the majority concludes that “neither over-                A three-judge panel of the district court convened and
proportionality in one area of the State nor substantial          ordered the two cases consolidated. On September 15, 1993,
proportionality in the State as a whole should ordinarily be      the panel held that the House Plan was unconstitutional
used to offset a problem of vote dilution in one discrete area    because it violated the one person, one vote doctrine of the
of the State.” Ante at 14 (emphasis added). For this              Equal Protection Clause. RWTAAC v. McWherter, 836 F.
conclusion, the majority relies upon the Supreme Court’s          Supp. 447, 452 (W.D. Tenn. 1993). The court ordered the
holdings in Shaw v. Hunt, 517 U.S. 899 (1996) and Johnson         defendants to prepare and submit a constitutional
v. DeGrandy, 512 U.S. 997 (1994), which collectively              apportionment plan by January 25, 1994. Id. The State
provide that a state may not remedy vote dilution in one area     appealed to the United States Supreme Court.
of a state by compliance with § 2 in another area. Indeed, as
the majority acknowledges, the DeGrandy court scathingly            On November 4, 1993, the district court ruled that the
critiqued the premise that “the rights of some minority voters    Senate Plan violated § 2 of the Voting Rights Act by
under § 2 may be traded off against the rights of other           affording African-American voters in west Tennessee less
members of the same minority class,” 512 U.S. at 1019, and        opportunity than other members of the electorate to
the Shaw court plainly ruled that “the vote-dilution injuries     participate in the political process and to elect representatives
suffered by . . . persons [in one area of the State] are not      of their choice. RWTAAC v. McWherter, 836 F. Supp. 453,
remedied by creating a safe majority-black district somewhere     466 (W.D. Tenn. 1993) (“RWTAAC I”). The State appealed,
else in the State.” 517 U.S. at 917. Inexplicably, the majority   and the Supreme Court vacated the panel’s order and
reads ambiguity into these conclusions, and thereby leaves the    remanded for further consideration in light of Johnson v.
door open to the notion that a state may dilute the vote of       DeGrandy, 512 U.S. 997 (1994). RWTAAC v. McWherter,
minority voters in ways that would otherwise violate § 2, as      512 U.S. 1249 (1994). On remand, the district court reversed
4    Rural West Tennessee, et al.         Nos. 98-6718/6778       Nos. 98-6718/6778          Rural West Tennessee, et al.      21
     v. Sundquist, et al.                                                                            v. Sundquist, et al.

its decision in RWTAAC I and held that the Senate Plan            least of all a rule interpreting a statute designed to implement
conformed to the Voting Rights Act.       RWTAAC v.               the Fourteenth and Fifteenth Amendments to the
McWherter, 877 F. Supp. 1096, 1098 (W.D. Tenn. 1995)              Constitution.” NAACP v. City of Niagra Falls, 65 F.3d 1002,
(“RWTAAC II”). The plaintiffs appealed.                           1016 (2d Cir. 1995). Indeed, the district court properly
                                                                  evaluated the success of the black community’s preferred
  While the appeals in the Senate and House Plan cases were       candidate in white-white elections because of our refusal to
pending, the Tennessee General Assembly adopted a new             conclude that racial representation per se is the lynchpin of a
House Plan and submitted it to the district court. Tenn. Code     dilution determination. See Cousin, 145 F.3d at 825. Not
Ann. § 3-1-103 (1994). The court found that the new Plan          only is such an abstracted presumption abhorrent to the
complied with the Equal Protection Clause’s one person, one       colorblind goals of the Equal Protection Clause, see, e.g.,
vote requirement. It delayed consideration of the other           Miller v. Johnson, 515 U.S. 900, 911-12 (1995), but it directly
challenges to the House Plan until the Supreme Court ruled        conflicts with § 2's dictate that nothing in the Voting Rights
on the appeals pending in the Senate case.                        Act shall be construed to require proportional representation.
                                                                  See 42 U.S.C. § 1973(b).
   The Supreme Court affirmed the dismissal of the plaintiffs’
claims as to the Senate Plan on October 4, 1995. RWTAAC v.          By granting greater weight to black-white elections when
Sundquist, 516 U.S. 801 (1995). RWTAAC then amended its           white bloc voting is targeted against black candidates, we do
complaint to challenge the House Plan on the sole ground that     not disrespect this principle. We merely recognize the
it violated § 2 of the Voting Rights Act. Because the             established realities of white bloc voting in rural west
amended complaint contained no constitutional claims, the         Tennessee, and conclude uncontroversially that blacks do not
three-judge court disbanded itself. After a trial on the merits   enjoy an equal opportunity “to participate in the political
of the plaintiffs’ consolidated claim of vote dilution, the       process and to elect representatives of their choice” when they
Honorable Jerome Turner, on November 6, 1998, declared the        can elect only those candidates sanctioned by the white
1994 House Plan to be violative of the Voting Rights Act and      majority.
enjoined the defendants from using it in future elections.
RWTAAC v. Sundquist, 29 F. Supp. 2d 448, 450 (W.D. Tenn.                                        II.
1998). The state defendants bring this timely appeal.
                                                                    I also write separately to express disagreement with both
                              II                                  the district court’s definition of “influence” districts for the
                                                                  purposes of the “totality of the circumstances” analysis, and
   "A district court's factual findings regarding Section 2       the majority’s implicit recognition that, under certain
violations and the determination of whether vote dilution has     unspecified circumstances, a state may remedy vote dilution
occurred are ordinarily reviewed for clear error." Cousin v.      in one area of a state by compliance with § 2 in another.
McWherter, 46 F.3d 568, 574 (6th Cir. 1995) (citing Fed. R.
Civ. P. 52(a) and Thornburg v. Gingles, 478 U.S. 30, 79             First, the district court erred in adopting the RWTAAC II
(1986)). However, "Rule 52(a) does not inhibit an appellate       court’s bright-line definition of “influence” districts as any
court's power to correct errors of law, including those that      district where a minority group comprises between 25% and
may infect a so-called mixed finding of law and fact, or a        55% of the district. Rural West Tennessee African American
finding of fact that is predicated on a misunderstanding of the   Affairs Council, Inc. v. Sundquist, 29 F.Supp.2d 448, 461
20   Rural West Tennessee, et al.          Nos. 98-6718/6778       Nos. 98-6718/6778           Rural West Tennessee, et al.          5
     v. Sundquist, et al.                                                                              v. Sundquist, et al.

candidates of their race at the polls. Cf. Shaw v. Reno, 509       governing rule of law." Gingles, 478 U.S. at 79 (internal
U.S. 630, 647 (1993) (asserting that intentionally-created         quotation marks omitted).
majority-minority districts may “reinforce[] the perception
that members of the same racial group . . . think alike, share                                    A
the same political interests, and will prefer the same
candidates at the polls”). In this case, the record shows that       Section 2 of the Voting Rights Act provides:
60% of whites vote against the black community’s preferred
candidate in white-white elections, yet almost 90% of whites            (a) No voting qualification or prerequisite to voting or
vote for the white candidate in black-white elections. The           standard, practice, or procedure shall be imposed or
record therefore reveals almost total white bloc voting when         applied by any State or political subdivision in a manner
a politically cohesive group of blacks attempts to elect a           which results in a denial or abridgement of the right of
member of their racial group. These facts depict the                 any citizen of the United States to vote on account of
undisputed racial realities of politics in rural west Tennessee,     race or color, or in contravention of the guarantees set
and we cannot wish away these hard political facts in hopes          forth in section 1973b(f)(2) of this title, as provided in
of achieving a colorblind ideal that, as of yet, does not            subsection (b) of this section.
comport with empirical reality.                                         (b) A violation of subsection (a) of this section is
                                                                     established if, based on the totality of circumstances, it is
   Moreover, absent compelling evidence that a white                 shown that the political processes leading to nomination
candidate in a white-white election is genuinely the black           or election in the State or political subdivision are not
community’s preferred candidate, courts must assess black-           equally open to participation by members of a class of
white elections to determine whether a politically cohesive          citizens protected by subsection (a) of this section in that
minority group actually has a viable candidate of choice, or         its members have less opportunity than other members of
merely an opportunity to mitigate the impact of white                the electorate to participate in the political process and to
electoral hegemony. See Cousin, 145 F.3d at 825 (providing           elect representatives of their choice. The extent to which
that white-white elections are relevant when “one of the             members of a protected class have been elected to office
candidates [is] strongly preferred by black voters” or “[w]here      in the State or political subdivision is one circumstance
black voters have a genuine candidate of choice”) (citation          which may be considered: Provided, That nothing in this
omitted); cf. Citizens for a Better Gretna v. Gretna, 834 F.2d       section establishes a right to have members of a protected
496, 503 (5th Cir. 1987) (concluding that a candidate’s race         class elected in numbers equal to their proportion in the
is most relevant when the election “offers voters the choice of      population.
supporting a viable minority candidate”).
                                                                   42 U.S.C. § 1973.
  Recognizing the relevance of a candidate’s race when the
record shows minority political cohesion and especially strong       Before considering whether the House Plan dilutes minority
white cohesion in elections involving black candidates does        voting strength in rural west Tennessee and thus denies
not preempt the possibility that a white candidate may be the      members of the minority group a fair opportunity to elect
black community’s genuine and actual candidate of choice.          representatives of their choice, we must determine whether
As the Second Circuit rightly concluded, “[n]o legal rule          the plaintiffs have met the three preconditions announced by
should presuppose the inevitability of electoral apartheid –       the Supreme Court in Thornburg v. Gingles, 478 U.S. at 50-
6    Rural West Tennessee, et al.          Nos. 98-6718/6778       Nos. 98-6718/6778           Rural West Tennessee, et al.       19
     v. Sundquist, et al.                                                                              v. Sundquist, et al.

51. The plaintiffs must demonstrate that 1) the minority           white candidates than those involving only white candidates.
group is sufficiently large and geographically compact to          Ante at 9. The majority is wise to reach these conclusions,
constitute a majority in a single-member district; 2) the          because “[w]hen white bloc voting is ‘targeted’ against black
minority group is politically cohesive; and 3) the white           candidates, black voters are denied an opportunity enjoyed by
majority votes sufficiently as a bloc to enable it usually to      white voters, namely, the opportunity to elect a candidate of
defeat the minority’s preferred candidate. Id. The parties         their own race.” Clarke, 40 F.3d at 812. Certainly, when
agree that the first two Gingles preconditions have been           white voters have the opportunity to elect preferred candidates
satisfied. They clash on the question whether whites vote as       of all races, yet black voters may only elect white candidates,
a bloc usually to defeat the candidates of choice of African-      black voters patently do not enjoy an opportunity to “elect
American voters, contesting most hotly the weight to be given      [their] candidate of choice on an equal basis with other
to particular sets of election data.                               voters.” Voinovich v. Quilter, 507 U.S. 146, 153 (1993).
                               B                                      This conclusion does not blur the reality that § 2 is
                                                                   ultimately concerned with “whether minority-preferred
  Chapter 536 of the Public Acts of 1994 provides a three-         candidates, whatever their race, usually lose” because of
part reapportionment plan for Tennessee’s ninety-nine house        white bloc voting. Cousin v. Sundquist, 145 F.3d 818, 825
districts. Plan A, at issue in this case, creates twelve           (6th Cir. 1998). It merely recognizes that when a court has
majority-African-American districts. None of these districts,      found both that a minority group politically coalesces along
however, lies in the area that plaintiffs describe as rural west   racial lines, and that whites politically coalesce along racial
Tennessee, which includes Madison, Haywood, Hardeman,              lines in elections involving a member of that minority group,
Tipton, Fayette, and Lauderdale counties. Chapter 536              it defies logic for a court to attempt to assess equal access in
provides that should a court find that Plan A unlawfully           a colorblind fashion. In these circumstances, a court is faced
dilutes minority voting strength, Plan B, which creates            with race-conscious political action among both the white
thirteen majority-African-American house districts, including      majority and the black minority, and the Voting Rights Act
one in rural west Tennessee, will take effect. Plan C, which       clearly protects the racial minority from the political tyranny
would have reinstated the 1992 house redistricting plan had        of the racial majority. See 42 U.S.C. § 1973(b). If a court,
the State prevailed on its claim that the 1992 plan complied       however, fails to apply a race-conscious standard that
with the Equal Protection Clause, is moot. See Millsaps v.         accounts for acute white bloc voting in black-white elections,
Langsdon, 510 U.S. 1160 (1994) (affirming the district             it may allow less dramatic polarization in white-white
court’s ruling that the 1992 house redistricting plan violated     elections to obscure the reality of black political exclusion in
the “one person, one vote” doctrine).                              black-black elections. It is syllogistic that a court cannot
                                                                   discern color-conscious discrimination through colorblind
  At trial, both parties presented expert testimony regarding      lenses.
voter behavior in rural west Tennessee. Plaintiffs’ expert, Dr.
Steven Cole, analyzed eleven legislative elections which had         The VRA’s command that we inquire into a candidate’s
both black and white candidates from 1974 to 1996 using            race when faced with black political cohesion and intense
bivariate ecological regression analysis, and found that the       white bloc voting stems from findings pertaining to the
black preferred candidates lost nine times (82%). Average          empirical realities of race-conscious political action, not racial
black cohesion was 67%, and average white cohesion was             presumptions that blacks, or whites, will only prefer
18    Rural West Tennessee, et al.          Nos. 98-6718/6778       Nos. 98-6718/6778          Rural West Tennessee, et al.      7
      v. Sundquist, et al.                                                                             v. Sundquist, et al.

                  _____________________                             89%. An analysis of homogenous white precincts for
                                                                    legislative contests from 1994 to 1996 showed that on average
                     CONCURRENCE                                    80% of whites voted for the white candidates over the black
                  _____________________                             candidates. There were no homogenous black precincts.
                                                                    Based on this evidence, Dr. Cole concluded that white voters
   NATHANIEL R. JONES, Circuit Judge, concurring.                   tend to vote as a bloc so as usually to defeat the candidate of
Although I fully concur in the result reached by the majority       choice of African-American voters.
and in much of its well-reasoned analysis, I write separately
to make three points. In concluding that the district court did       The State’s experts, Dr. William Lyons and Dr. Michael
not err in finding that whites vote as a bloc usually to defeat     Gant, analyzed ten black-white legislative contests in rural
the preferred candidate of blacks in rural west Tennessee, the      west Tennessee from 1986 to 1996, and found that the
majority acknowledges that “the Voting Rights Act’s                 minority—preferred candidates had been defeated nine times
guarantee of equal opportunity is not met when ‘candidates          (90%). Average black cohesion was 64%, and average white
favored by blacks can win, but only if the candidates are           cohesion was 86%. Because black voter turnout was roughly
white.’” Ante at 9 (quoting Smith v. Clinton, 687 F.Supp.           equal to white voter turnout in black-white elections and in
1310, 1318 (E.D. Ark. 1988) (three judge panel)). It is on this     elections that had only white candidates, Drs. Lyons and Gant
presupposition that the majority rests its conclusion that, in      also analyzed eleven white-white legislative contests from
this case, black-white elections are more probative of vote         1986 to 1996. Adding the results to those from the black-
dilution than white-white elections. I agree with this holding;     white contests, Drs. Lyons and Gant found that the preferred
however, I think it is necessary to explicate further why it        candidate of black voters was defeated eleven out of twenty-
matters under the Voting Rights Act (“VRA”) when a                  one times (52.38%).
minority group’s only electable candidates of choice are
white. I also write separately to note my differences with the        While Drs. Lyons and Gant acknowledged that the
district court’s definition of “influence” districts, and the       minority-preferred candidate usually lost, and hence that the
majority’s conclusion that, in certain unspecified                  results of state legislative contests in rural west Tennessee
circumstances, compliance with § 2 in one area of a state may       were indicative of minority vote dilution, they noted that a
offset vote dilution in another area.                               difference in one election would change this outcome. They
                                                                    therefore examined twenty-four black-white and twenty-six
                               I.                                   white-white countywide elections from 1986 to 1996. In the
                                                                    black-white contests, they found that the black-preferred
  I am of the view that it is wise to explain more fully the        candidate was defeated thirteen times (54%). For white-white
substantive and jurisprudential support animating our holding       countywide elections, the black-preferred candidate lost six
that equal opportunity in voting is not achieved when a             times (23%). Combining all the countywide contest from
minority group may elect representatives of choice when they        1986 to 1996, the black-preferred candidate lost eighteen out
are white, but are unsuccessful in electing members of their        of fifty times (36%). Noting that if all of the countywide
own group. See id.; see also Clarke v. City of Cincinnati, 40       elections were combined with all of the legislative elections,
F.3d 807, 812 (6th Cir. 1994). Based primarily on this              the results showed that the black-preferred candidate lost only
predicate, the majority concludes that the district court did not   twenty-nine of seventy-one elections (41%), the defense
err in granting more weight to elections involving black and
8     Rural West Tennessee, et al.          Nos. 98-6718/6778       Nos. 98-6718/6778          Rural West Tennessee, et al.     17
      v. Sundquist, et al.                                                                             v. Sundquist, et al.

experts concluded that election results in rural west Tennessee     elections in the six county area are racially polarized, and no
were not, in general, indicative of minority vote dilution.         African-American has ever won one. These circumstances
                                                                    simply overwhelm those factors that might favor the State of
  After hearing this testimony, the district court held that the    Tennessee (such as a lack of suspect electoral practices,
plaintiffs had made a showing sufficient to satisfy the third       responsive (albeit mainly white) state legislators, and the
Gingles precondition. The district court placed primary             possibility that minority voters in minority-African-American
emphasis on the results of the black-white contests and, due        districts will be able to influence electoral outcomes). The
to the significant number of legislative elections analyzed,        district court therefore properly held that the plaintiffs had
determined that the results from the countywide contests were       proved a § 2 violation. The remedy that the plaintiffs seek for
not particularly useful or necessary. In light of its limited       this violation, creation of one majority-African-American
probativeness, the district court concluded, the white-white        house district in rural west Tennessee through implementation
and countywide evidence was insufficient to overcome the            of Plan B of Chapter 536, will take place as a matter of state
fact that a white voting bloc defeats the minority-preferred        law.
candidate at least 82% of the time in interracial legislative
elections in rural west Tennessee.                                                                IV
   On appeal, the State argues that the district court erred. The      The late Judge Turner ably considered a complex body of
State contends, in essence, that the district court was obliged     statistical and anecdotal evidence to determine that Plan A of
to give equal and controlling weight to white-white and non-        Chapter 536 unlawfully dilutes African-American voting
legislative contests in its analysis under the third Gingles        strength in rural west Tennessee. His order enjoining use of
factor.                                                             the House Plan in future elections is hereby affirmed. The
                                                                    defendants’ motion for a stay pending appeal is denied as
                               C                                    moot.
   This court has made clear that white-white elections are
relevant in the analysis of a voting dilution claim. In Cousin
v. Sundquist, we considered a § 2 challenge to the at-large
method of electing judges utilized by Hamilton County,
Tennessee. Cousin, 145 F.3d 818, 820 (6th Cir. 1998). The
plaintiffs’ expert used average cohesion figures from black-
white elections in connection with voter turnout information
to determine that, in order to succeed in a Hamilton County
election, a hypothetical black candidate would need a number
of white crossover votes exceeding the average crossover
suggested by the cohesion figures. Id. at 824. The
defendants’ expert, by contrast, used both black-white and
white-white election results, identified the minority’s
preferred candidate in each, and determined that the white
majority did not regularly vote in such a way as to deprive
16    Rural West Tennessee, et al.          Nos. 98-6718/6778        Nos. 98-6718/6778          Rural West Tennessee, et al.      9
      v. Sundquist, et al.                                                                              v. Sundquist, et al.

selected because to do so would require us to trade the § 2          black voters in Hamilton County of the opportunity to elect
rights of individual African-Americans in rural west                 their candidate of choice. Id. In preferring the methodology
Tennessee against those of African-American groups                   of the defense expert, we noted: “The proper inquiry is not
elsewhere in the State.                                              whether white candidates do or do not usually defeat black
                                                                     candidates, but whether minority-preferred candidates,
   The State complains that by allowing the plaintiffs to define     whatever their race, usually lose.” Id. at 825.
the frame of reference for their § 2 claim, we will enable
future litigants to carve up successively smaller areas of the          While the plain import of Cousin is that courts are not
State until they are able to maximize the number of majority-        foreclosed from considering electoral races involving only
minority legislative districts—a result not countenanced by          white candidates, that case does not suggest (as the State
the Voting Rights Act. See De Grandy, 512 U.S. at 1017               seems to argue) that white-white contests are necessarily
(“Failure to maximize cannot be the measure of § 2.”). As the        entitled to the same weight as those involving a minority
district court pointed out, however, the Gingles preconditions       candidate. As Judge Richard Arnold has pithily stated, the
operate to prevent just the sort of limitlessly small “reverse       Voting Rights Act’s guarantee of equal opportunity is not met
gerrymander” whose specter the State raises here. See, e.g.,         when “[c]andidates favored by blacks can win, but only if the
Campos v. City of Houston, 113 F.3d 544, 547-48 (5th Cir.            candidates are white.” Smith v. Clinton, 687 F. Supp. 1310,
1997) (holding that minority group was not sufficiently large        1318 (E.D. Ark. 1988) (three judge panel). This court, along
and geographically compact to sustain a § 2 claim). In this          with others, has accordingly held that a candidate’s race can
regard, we note that the region selected by the plaintiffs in this   be relevant to a § 2 inquiry under certain circumstances. See
case is a sensible one—indeed, more sensible than the seven-         Clarke v. City of Cincinnati, 40 F.3d 807, 812 (6th Cir. 1994);
county area including Shelby County urged by the State.              see also, e.g., Nipper v. Smith, 39 F.3d 1494, 1540 (11th Cir.
While Shelby County is the southernmost and westernmost              1994) (en banc) (holding that white-white elections may be
county in the State, and, like the six neighboring counties of       considered, but are less probative than those involving black
rural west Tennessee, has a large African-American                   candidates). One such circumstance occurs when white bloc
population, the seven counties do not form a coherent                voting is “targeted” against black candidates. Clarke, 40 F.3d
demographic unit. The African-American population in                 at 812.
Shelby County is concentrated in inner-city Memphis, and is
largely set off from rural west Tennessee by a “buffer zone”           In this case, there is marked evidence of targeting; the
of white suburbs. As a result, the African-American                  experts for both the plaintiffs and the defendants agreed that
populations in these two areas are not likely to be particularly     white voter cohesion in rural west Tennessee increases from
cohesive. For this reason, the district court properly restricted    59% in white-white elections to 86% in black-white elections.
the geographic scope of relevant statistical data to the six         Perhaps not unrelatedly, no African-American candidate has
counties of rural west Tennessee.                                    ever won an interracial legislative contest in the six-county
                                                                     area, despite many candidacies. In view of such evidence that
   Having correctly defined its frame of reference, the district     a white voting bloc coalesces to frustrate African-American
court made no clear error in weighing the totality of the            candidacies, the district court properly considered the race of
circumstances. Rural west Tennessee has an African-                  candidates in its § 2 analysis, and accorded greater weight to
American voting age population of 31%, but none of its five          the results of black-white elections.
house districts is majority-African-American. Legislative
10    Rural West Tennessee, et al.          Nos. 98-6718/6778       Nos. 98-6718/6778          Rural West Tennessee, et al.      15
      v. Sundquist, et al.                                                                             v. Sundquist, et al.

  Similarly, the district court was correct to discount the         Critiquing this “safe harbor” argument, the Supreme Court
results of countywide contests. The parties stipulated that         remarked on the State’s “unexplored premise of highly
legislative elections were the most legally relevant, and the       suspect validity:”
rulings of our sister circuits support the parties’ appraisal.
See, e.g., Citizens for a Better Gretna v. City of Gretna, 834        that in any given voting jurisdiction (or portion of that
F.2d 496, 502 (5th Cir. 1987) (suggesting that exogenous              jurisdiction under consideration), the rights of some
elections alone cannot prove racially polarized voting, but can       minority voters under § 2 may be traded off against the
be considered as “additional evidence”). At trial, data were          rights of other members of the same minority class.
presented from twenty-one legislative elections over a period         Under the State’s view, the most blatant racial
of ten years—a substantial body of evidence. See Jenkins v.           gerrymandering in half of a county’s single-member
Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1130           districts would be irrelevant under § 2 if offset by
(3d Cir. 1993) (holding that seven elections over a period of         political gerrymandering in the other half, so long as
ten years was a suitable sample such that the court could             proportionality was the bottom line.
discern the presence of a pattern of white bloc voting usually
defeating the minority voters’ candidate of choice). The State      Id. at 1019. Similarly, in Shaw, the Court considered North
nevertheless advocates the inclusion of the countywide              Carolina’s argument that a bizarrely shaped majority-black
elections on the ground that a different outcome in one of the      congressional district was a narrowly tailored remedy for a § 2
eleven legislative elections in which the preferred candidate       violation elsewhere in the State. Shaw, 517 U.S. at 916-17.
of African-Americans was defeated would alter the minority          Finding this position “singularly unpersuasive,” the Court
vote dilution determination. But the record contains no             stated:
information that would allow us to evaluate the claimed
marginal character of the statistics derived from the legislative     If a § 2 violation is proved for a particular area, it flows
contests. More importantly, the State’s claim rests on the            from the fact that individuals in this area “have less
assumption that black-white and white-white legislative               opportunity than other members of the electorate to
elections should be given equal weight. As we have pointed            participate in the political process and to elect
out, however, that assumption is not valid in this case.              representatives of their choice.” 42 U.S.C. § 1973(b).
                                                                      The vote-dilution injuries suffered by these persons are
  In sum, we find no clear error in the district court’s              not remedied by creating a safe majority-black district
determination that the plaintiffs have satisfied the third            somewhere else in the State . . . .
Gingles precondition. The data from the legislative elections            . . . To accept that the district may be placed anywhere
were sufficiently robust for the district court to discern            implies that the claim, and hence the coordinate right to
whether there existed a pattern of white bloc voting. When            an undiluted vote (to cast a ballot equal among voters),
the black-white legislative elections are afforded greater            belongs to the minority as a group and not to its
weight, the data show that the white majority votes                   individual members. It does not.
sufficiently as a bloc to enable it usually to defeat the
minority’s preferred candidate in rural west Tennessee.             Id. at 917. Taken together, the admonitions of De Grandy
                                                                    and Shaw dissuade us from accepting the Tennessee’s
                                                                    invitation to append Shelby County, or the State as whole, to
                                                                    the geographical frame of reference that the plaintiffs have
14       Rural West Tennessee, et al.             Nos. 98-6718/6778          Nos. 98-6718/6778           Rural West Tennessee, et al.       11
         v. Sundquist, et al.                                                                                    v. Sundquist, et al.

conducting the proportionality analysis.1 The State argues                                                  III
that the court should have considered proportionality in the
entire state or, in the alternative, in an area that includes                   Having determined that the plaintiffs have met the three
Shelby County along with the six counties of rural west                      Gingles preconditions, we turn to the question whether, given
Tennessee. On a statewide basis, there are twelve majority                   the "totality of the circumstances," the House Plan has in fact
black house districts out of a total of ninety-nine, which, the              "diluted" African-American electoral strength and thus denied
State contends, is substantially proportional to Tennessee’s                 African-Americans in rural west Tennessee a fair opportunity
black voting age population of 14.4%. In the seven-county                    to elect representatives of their choice. See Clarke, 40 F.3d
area that includes Shelby County, the black voting age                       at 811. The Senate Report which accompanied the 1982
population is 37.9%; since 42.85% of the house districts are                 amendments to the Voting Rights Act specifies factors which
majority black in that seven-county area, the State says,                    typically may be relevant to a § 2 claim: the history of
blacks are in fact overrepresented.                                          voting-related discrimination in the State or political
                                                                             subdivision; the extent to which voting in the elections of the
                                   B                                         State or political subdivision is racially polarized; the extent
                                                                             to which the State or political subdivision has used voting
  In Johnson v. De Grandy, the Supreme Court explicitly left                 practices or procedures that tend to enhance the opportunity
open the question of the proper frame of reference for                       for discrimination against the minority group, such as
analyzing § 2 claims. De Grandy, 512 U.S. at 1022 (“[W]e                     unusually large election districts, majority vote requirements,
have no occasion to decide which frame of reference should                   and prohibitions against bullet voting; the exclusion of
have been used if the parties had not apparently agreed in the               members of the minority group from candidate slating
District Court on the appropriate geographical scope for                     processes; the extent to which minority group members bear
analyzing the alleged § 2 violation and devising its remedy.”).              the effects of past discrimination in areas such as education,
Nevertheless, the reasoning in that case, and in Shaw v. Hunt,               employment, and health, which hinder their ability to
517 U.S. 899, 917 (1996), persuades us that neither over-                    participate effectively in the political process; the use of overt
proportionality in one area of the State nor substantial                     or subtle racial appeals in political campaigns; and the extent
proportionality in the State as a whole should ordinarily be                 to which members of the minority group have been elected to
used to offset a problem of vote dilution in one discrete area               public office in the jurisdiction. Gingles, 478 U.S. at 44-45
of the State.                                                                (citing S. Rep. No. 97-417, at 28-29 (1982)). The Report
                                                                             notes also that there may be probative value to evidence
  In De Grandy, the State of Florida argued that, as a matter                demonstrating that elected officials are unresponsive to the
of law, no dilution occurs whenever the percentage of single-                particularized needs of the members of the minority group
member districts in which minority voters form an effective                  and that the policy underlying the State's or the political
majority mirrors the minority voters’ percentage of the                      subdivision's use of the contested practice or structure is
relevant population. De Grandy, 512 U.S. at 1017.                            tenuous. Id. at 45.
                                                                                The Supreme Court has recently highlighted a new
     1                                                                       element—proportionality—to be weighed in the totality of the
      The State also challenges the district court’s finding regarding the
history of official discrimination in voting in western Tennessee. We        circumstances. In Johnson v. De Grandy, a case involving a
have carefully considered this question, and find no error in the district   challenge to Florida’s legislative reapportionment plan, the
court’s determination.
12    Rural West Tennessee, et al.          Nos. 98-6718/6778       Nos. 98-6718/6778          Rural West Tennessee, et al.      13
      v. Sundquist, et al.                                                                             v. Sundquist, et al.

Court concluded that § 2 relief should not be granted because,      process). The court concluded that as a result of those
notwithstanding the presence of continued discrimination and        ongoing violations, African-Americans had suffered
racial bloc voting, minority voters were able to form effective     disadvantages in such areas as education, employment, and
voting majorities in a number of legislative districts that were    health.
roughly proportional to their respective shares in the voting
age population. De Grandy, 512 U.S. 997, 1024 (1994). The              The district court further found that the Tennessee House of
Court emphasized, however, that proportionality is not a “safe      Representatives was responsive to the needs of black voters
harbor :” “the degree of probative value assigned to                in the rural western part of the state, a factor upon which this
proportionality may vary with other facts. No single statistic      court has laid heavy emphasis in the past. See Cousin, 145
provides courts with a shortcut to determine whether a set of       F.3d at 833. The district court questioned the state policy of
single-member districts unlawfully dilute minority voting           maintaining municipal boundaries wherever possible in
strength.” Id. at 1020-21.                                          configuring the legislative districts, since the plan itself
                                                                    fractured certain cities. Under the heading of “miscellaneous”
                               A                                    factors, the court concluded that there was no evidence of
                                                                    suspect electoral practices, racial appeals in political
   The district court found that the totality of the                campaigns, or a slating process or other mechanism used to
circumstances indicated that the House Plan unlawfully              prevent minority candidacies.
dilutes minority voting strength in rural west Tennessee.
Beginning with the two factors that the Supreme Court has             Turning to the question of proportionality, the district court
declared are the most important in balancing the totality of the    noted that blacks make up 31.01% of the voting age
circumstances, see Gingles, 478 U.S. at 48 n.15, the court          population of the six counties comprising rural western
found that no African-American had been elected to the state        Tennessee, but that none of the five house districts covering
legislature from the six-county area, and that the experts at the   that area contains a majority of black voters. The court
trial agreed that voting in the area is racially polarized. The     acknowledged that in four of the five districts minority
court next took judicial notice of findings from the Senate         members make up 25-55% of the population and hence could
Plan cases, RWTAAC I & II, regarding the history and effect         meaningfully affect election outcomes in those four districts,
of discrimination in voting in western Tennessee. The court         but concluded that in the absence of a single majority black
in the Senate Plan cases had recounted the entire history of        district, this fact had little probative significance. Balancing
official discrimination from the pre-Civil War era, a time-         the lack of proportionality with the other factors from the
frame whose use we disapproved of in the Cousin case, 145           Senate Report, the court concluded that black voters in rural
F.2d at 832, but went on to cite two cases from the 1980s           west Tennessee do not have equal opportunity in the political
which indicate that voting rights violations by public officials    process.
in rural west Tennessee are ongoing. See Taylor v. Haywood
County, 544 F. Supp. 1122, 1131 (W.D. Tenn. 1982) (holding            The State’s primary quarrel with this determination
that change to an at-large election scheme was a result of          concerns the geographical area on which the court focused in
purposeful intention to dilute black voting strength); Bills v.
Alexander, No. 83-12220 (W.D. Tenn. 1983) (approving
settlement setting up a new system to ensure the opportunity
of black citizens to participate meaningfully in the political
