                                  ___________

                                  No. 95-3378
                                  ___________


William L. Clay, Jr.; John F.      *
Bass,                                  *
                                       *
           Appellants,                 *
                                       *   Appeal from the United States
Louis H. Ford,                         *   District Court for the
                                       *   Eastern District of Missouri.
           Plaintiff,                  *
                                       *
     v.                                *
                                       *
Board of Education of the              *
City of St. Louis,                     *
                                       *
           Appellee.                   *

                                  __________

                     Submitted:   March 11, 1996

                         Filed:   July 26, 1996
                                  __________

Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

                                  ___________

MAGILL, Circuit Judge.


     William L. Clay, Jr. and John F. Bass (Plaintiffs) brought suit
against the Board of Education of the City of St. Louis (Board of
Education), alleging violation of § 2 of the Voting Rights Act.    42 U.S.C.
§§ 1973-1973p.   Plaintiffs contend that the at-large voting system used to
elect members to the Board of Education operates to dilute African-American
voting power.    The district court,1 finding that they failed to show that
the white majority




     1
      The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
votes sufficiently as a bloc to enable it to usually defeat the African-
American preferred candidate, dismissed their suit.   The Plaintiffs appeal
and we affirm, holding that they failed to establish one of the necessary
preconditions to a § 2 claim.


                                    I.


     The St. Louis School District (School District) is the largest in
Missouri.    In 1991, the seventy-two public schools within the School
District educated over 40,000 students.    School Data Section, Department
of Elementary & Secondary Education, Missouri School Directory 1991-92, 163
(1992).


     The School District is governed by the Board of Education, which
consists of twelve members elected for staggered six-year terms.   In every
odd-numbered year, four seats on the Board are contested in at-large
elections.    See Mo. Rev. Stat. § 162.581 (1991).      Each eligible city
resident has four votes which can be allocated, one to a candidate, to four
different candidates.    The voter also has the option to cast fewer than
four votes (the "bullet voting" option), thereby marginally enhancing the
weight of the votes that the voter does cast.         The four candidates
receiving the most votes from throughout the city are elected.


     Since 1967, African-American candidates have consistently held seats
on the Board of Education.2   African-American candidates have won twenty-
one of the sixty-six (31%) Board seats available in elections between 1967
and 1995.    Of the thirty-eight seats contested from 1977 to 1995, eleven
(28.9%) were filled by African-American candidates and another eleven
(28.9%) were filled by white candidates who received enough African-
American votes to have won




      2
      Because the parties did not provide earlier statistics, we
are uncertain of the makeup of the Board prior to 1967.

                                    -2-
if only African-American voters participated.   Resp't Br. at A-6.3


     Currently, the Board of Education consists of five African-American
members and seven white members, a ratio that corresponds closely with the
actual percentage of African-American and white voters in the city.
According to the 1990 Census, African-Americans comprise 42.7% of St.
Louis's voting-age population of 210,000.


     On April 1, 1991, Plaintiffs brought suit against the Board of
Education, claiming that the at-large electoral system used to elect Board
members violates § 2 of the Voting Rights Act, 42 U.S.C. § 1973,4 by
denying African-American voters an equal



     3
      Over this period, an additional seven seats on the Board of
Education were filled through uncontested elections.
     4
      Section 1973 states:

          (a) No voting qualification or prerequisite to
     voting or any standard, practice, or procedure shall be
     imposed or applied by any State or political subdivision
     in a manner which results in a denial or abridgement of
     the right of any citizen of the United States to vote on
     account of race or color, or in contravention of the
     guarantees set forth in section 1973b(f)(2) of this
     title, as provided in subsection (b) of this section.

          (b) A violation of subsection (a) of this section is
     established   if,   based   on   the  totality   of   the
     circumstances, it is shown that the political processes
     leading to nomination or election in the State or
     political   subdivision   are   not   equally   open   to
     participation by members of a class of citizens protected
     by subdivision (a) of this section in that its members
     have less opportunity than other members of the
     electorate to participate in the political process and to
     elect representatives of their choice. The extent to
     which members of a protected class have been elected to
     office in the State or political subdivision is one
     circumstance which may be considered: Provided, That
     nothing in this section established the right to have
     members of a protected class elected in numbers equal to
     their proportion of the population.

                                   -3-
opportunity    to    effectively     participate   in    the      political     process.
Plaintiffs claimed that the at-large electoral system, in combination with
bloc voting patterns and election practices, operates to dilute the voting
strength of African-Americans.5       Plaintiffs sought declaratory relief and
an injunction requiring that "districts be fairly drawn for each of the
twelve positions on the Board of Education for the City of St. Louis."
Compl. at 7.


       At the bench trial, both parties offered expert testimony analyzing
past Board of Education elections.         The Plaintiffs relied on Dr. Kenneth
Warren, who used a hybrid homogenous analysis to explain the Board of
Education and exogenous election results.6            Under this approach, Warren
assumed that ward clusters with at least 90% African-American populations
were entirely African-American and ward clusters with 90% white populations
were   entirely     white.7   From   the   election     results    of   these    largely
homogenous areas, he sought to extrapolate a racial voting pattern.
Warren's


       5
      Clay asserts that African-American votes are diluted through
the multi-member, city-wide election for the Board of Education.
The theoretical basis for this type of minority voter impairment is
that where majority and minority voters consistently prefer
different candidates, the majority, by virtue of its numerical
superiority, will regularly defeat the choices of the minority
voters. Thornburg v. Gingles, 478 U.S. 30, 48 (1986). A system
thus flawed also allows those elected to ignore the minority
interests without fear of consequences.
       6
      Exogenous elections are elections on issues and for offices
other than that under study. In this case, the elections for mayor
and comptroller are considered exogenous elections. Only the Board
of Education elections are considered endogenous elections. II
Trial Tr. at 54-55.
           7
      Wards are the primary political subdivision in the city of
St. Louis. In total, there are twenty-eight wards. For analytical
purposes, Warren defined a political entity which is larger than a
ward. He called this entity a ward cluster. I Trial Tr. at 53.

     Warren's analysis did not include data from mixed ward
clusters.   Instead, it relied on the assumption that African-
Americans in the mixed ward clusters would vote as those in
homogeneous ward clusters vote.

                                        -4-
analysis emphasized the ability of African-American candidates to be
elected to the Board of Education, relying on the implicit assumption that
African-American candidates were the preferred candidates of African-
American voters.8


        Dr. Ronald Weber testified as the expert for the Board of Education.
At the outset, Weber defined the African-American preferred candidates to
be the four candidates who received the most African-American votes in each
contested election.      Weber employed two different statistical methods to
study       Board of Education election voting patterns.     First, he used
homogeneous precinct analysis, which differed from hybrid homogenous
analysis only in that the voting areas studied were smaller.      Second, he
applied bivariate regression analysis, plotting the percentage of the vote
garnered by a particular candidate against the racial composition of the
precinct to determine if a pattern of political support emerges across a
cross section of different racial compositions.     Mem. Op. at 7-8.


        Based on the results of both methods, Weber testified that the white
majority had not voted sufficiently as a bloc to enable it to usually
defeat the minority preferred candidate.       Rather, according to Weber's
results, the minority preferred candidate was elected in most instances.
He demonstrated that, overall, St. Louis voters elected African-American
preferred candidates 57.9% of the time.


        In light of the evidence presented, the district court concluded that
the Plaintiffs had failed to prove that the majority voted sufficiently as
a bloc to usually defeat the minority




        8
      "As a practical research problem . . . you are really looking
at black communities vote for black candidates and the white
communities vote for white candidates and whether or not the
crossover of white voters for black candidates is enough to allow
black candidates to elect candidates of their choice which under 99
of the conditions happens to be black." I Trial Tr. at 69.

                                      -5-
preferred candidate.     Specifically, the court found that the Plaintiffs had
failed to identify the minority preferred candidate or offer a legitimate
method for making such an identification.         In the absence of a reasonable
alternative, the court accepted the School District's definition of
minority preferred candidate.       The district court also found that, due to
flaws in Warren's statistical approach, Weber's analysis provided a sounder
explanation of the Board of Education elections.                 Based on these two
crucial   findings,     the   district   court   found   that    minority      preferred
candidates were elected 57.9% of the time and, therefore, the white voting
bloc did not tend to thwart the minority preferred candidate.


     Plaintiffs appeal, raising six challenges to the district court's
findings of fact.      The central argument asserted by Plaintiffs is that the
district court erred in defining the minority preferred candidates to be
those candidates who receive the most minority votes.                     In addition,
Plaintiffs argue that the district court erred when it found that the
School    District's    bivariate   regression    analysis      of   election    results
provided a more accurate description of racial voting patterns.


                                         II.


     To establish a § 2 violation, the minority group must demonstrate
that, based on the totality of circumstances, they "have less of an
opportunity    to   participate     in   the   political   process      and    to   elect
representatives of their choice."        42 U.S.C. § 1973(b).        The minority group
must initially show that three preconditions exist.                  See Thornburg v.
Gingles, 478 U.S. 30, 50 (1986).         First, the minority group must be able
to demonstrate that it is sufficiently large and geographically compact to
constitute a majority in a single member district.              Second, the minority
group must be able to show that it is politically cohesive.                   Third, the
minority group must be able to demonstrate that the majority votes




                                         -6-
sufficiently   as   a   bloc    to   enable   it--in   the   absence   of   special
circumstances--to defeat the minority preferred candidate.         Id. at 50-51.


      We review the district court's factual findings for clear error and
the legal conclusions it draws from these factual findings de novo.
Harvell v. Blytheville Sch. Dist. #5, 71 F.3d 1382, 1386 (8th Cir. 1995),
cert. denied, 116 S. Ct. 1876 (1996).         In order to prove that the third
Gingles precondition exists, the plaintiffs must identify the minority
preferred candidates and show that, due to majority bloc voting, they
usually are not elected.       See Gingles, 478 U.S. at 55-56.     Plaintiffs did
neither.


                                        A.


      The Plaintiffs offered, by implication, a definition of "minority
preferred candidate" based solely on the candidate's race.        As a matter of
law, such a definition is untenable and must be rejected in favor of the
alternative offered by the Board of Education.


      There is no blanket definition of "minority preferred candidate."
Rather, the plaintiffs must prove, on an election-by-election basis, which
candidates are minority-preferred.        Harvell, 71 F.3d at 1386 (8th Cir.
1995) (citing Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d
1103, 1126 (3d Cir. 1993), cert. denied, 114 S. Ct. 2779 (1994)).


      In explaining his statistical analysis, the Plaintiffs' expert did
not explicitly identify who the minority's candidates of choice were or
what methodology should be used to make such a determination.          Mem. Op. at
21.   Nor did the Plaintiffs otherwise offer evidence on who the minority
preferred candidates are.      Rather, the Plaintiffs relied on the presumption
that African-American voters preferred African-American candidates.




                                        -7-
     In Harvell, supra, we specifically rejected the presumption suggested
by Plaintiffs, that only African-American candidates can be preferred by
African-American voters.   Inferences based solely on race are insufficient
to establish which candidate is minority-preferred.9     The notion that a
minority candidate is the minority preferred candidate simply because of
that candidate's race offends the principles of equal protection.   Harvell,
71 F.3d at 1386.   As Justice Brennan stated in Gingles, "under § 2, it is
the status of the candidate as the chosen representative of a particular
racial group, not the race of the candidate, that matters."    478 U.S. at
68 (plurality opinion).


     In contrast, the Board of Education's expert offered a definition of
the minority preferred candidate and identified, in each election, who
those candidates were.     Since four seats on the Board of Education are
contested in every Board election, he designated the four candidates
receiving the highest number of African-American votes as the "minority
preferred candidates."10


     The district court properly adopted the School District's definition
of minority preferred candidate.   Absent a showing that minority preferred
candidates are, for some reason, excluded from the ballot, it is a near
tautological principle that the minority preferred candidate "should
generally be one able to receive




     9
      While we reject using a candidate's race as the sole method
of identifying minority preferred candidates, we also recognize
that courts should consider this factor in determining who is
minority-preferred. See Jenkins, 4 F.3d at 1126; Citizens for a
Better Gretna v. City of Gretna, 834 F.2d 496, 502 (5th Cir. 1987),
cert. denied, 492 U.S. 905 (1989).
      10
       This definitional approach, which places heavy emphasis on
the support a candidate receives from minority voters, has been
used before. See Harvell, 71 F.3d at 1386-87; Clarke v. City of
Cincinnati, 40 F.3d 807, 810 (6th Cir. 1994), cert. denied, 115 S.
Ct. 1960 (1995).

                                    -8-
[minority] votes."      Harvell, 478 U.S. at 1387.11


                                         B.


     The fact that Plaintiffs failed to provide an adequate description
of the minority preferred candidates does not end the analysis.         It may be
that the Board of Education's definition, when applied to the Plaintiffs'
statistical analysis, demonstrates the conditions necessary to satisfy the
third Gingles precondition.     On appeal, the Plaintiffs argue that the court
erred in accepting the analysis of the Board of Education over the analysis
propounded by their expert, Warren.      In light of the more thorough analysis
presented by the Board of Education, we conclude that the district court
was not clearly erroneous in accepting the Board of Education's statistical
analysis.


     The     district   court   cited   several   reasons   for   discounting   the
Plaintiffs' expert analysis.      First, in performing his hybrid homogeneous
analysis, Warren relied on ward clusters, but failed to define the term
beyond the fact that a ward cluster is larger than both precincts and
wards.   Given its relatively large size, ward clusters are not as conducive
to homogeneous analysis as the smaller precincts used by Weber in his
homogeneous analysis.      Second, much of the Plaintiffs' expert's analysis
relies on exogenous elections, which should be used only to supplement the
analysis of the specific election at issue.       Third, the Plaintiffs' expert
was retained on a contingency basis, and would be




            11
          Beginning in 1989, St. Louis residents have formed
nonpartisan, biracial slating groups for Board of Education
elections.    A slating group consists of a small number of
individuals who select candidates to run as a bloc to fill seats
which are up for election.      Considered in the aggregate, the
slating groups in 1989, 1991, and 1993 consisted of 44.8% African-
Americans. The Plaintiffs suggest that the slating groups operated
to deny candidates preferred by African-American votes equal access
to the election process. However, they offer no evidence beyond
this assertion and, therefore, we dismiss this contention.

                                        -9-
compensated only if Clay prevailed.    We find the rationale of the district
court compelling and perceive no reason for reversing its finding.


     Based on the School District's definition of minority preferred
candidate and its statistical analysis, minority preferred candidates
realized a substantial degree of election success.        Overall, 57.9% of
minority preferred candidates were elected to the Board of Education.    In
addition, the minority preferred candidate was elected 80% of the time when
African-American voters voted cohesively.    Therefore, Plaintiffs failed to
establish the third Gingles precondition because they did not show that the
white voting bloc did tend to thwart the minority preferred candidate.   In
light of our conclusion that Plaintiffs failed to establish a necessary
precondition to their § 2 claim, we do not reach the other issues raised
by Plaintiffs on appeal.


                                      III.


     For the above stated reason, we hold that the Plaintiffs failed to
establish the existence of the third Gingles precondition and, therefore,
cannot prevail in their § 2 vote dilution claim.     We affirm the judgment
of the district court.


     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                      -10-
