Gingles Jingle |
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The Supreme Court's edict on vote dilution |
Attempted to offer a legal solution |
To district courts struggling to try the cases |
Arising from friction between the races. |
But confusion reigned Supreme |
After reading Brennan's theme. |
Are results the only key? |
Do statistics open sesame? |
Do the experts' opinions control the query? |
Do we listen to history until we become weary? |
Does it give “effect” to Congress' “intent” |
To disregard “intent” to all extent? |
Is the race of the candidate relevant? |
Is success at the polls significant? |
Does racial bloc voting rule the day? |
Does “totality of circumstances” still have a say? |
When Solomon went en banc, we said a prayer, |
That the Eleventh Circuit would clear the air, |
But alas, alas, they went five-five |
All we got was some more jive. |
The questions remain to this good day |
For the courts to unravel through much legal fray. |
The attempt to decipher the Gingles test |
is tedious, exhausting, and trying, at best! |
Jeana Peeler Hosch, |
Law clerk to District Judge Robert Propst1 |
To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.
But if Gingles so clearly identified the three as generally necessary to prove a § 2 claim, it just as clearly declined to hold them sufficient in combination, either in the sense that a court's examination of relevant circumstances was complete once the three factors were found to exist, or in the sense that the three in combination necessarily and in all circumstances demonstrated dilution. This was true not only because bloc voting was a matter of degree, with a variable legal significance depending on other facts, but also because the ultimate conclusions about equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts. Lack of electoral success is evidence of vote dilution, but courts must also examine other evidence in the totality of the circumstances, including the extent of the opportunities minority voters enjoy to participate in the political processes. To be sure, some § 2 plaintiffs may have easy cases, but although lack of political opportunity may be readily imagined and unsurprising when demonstrated under circumstances that include the three essential Gingles factors, that conclusion must still be addressed explicitly, and without isolating any other arguably relevant facts from the act of judgment.
amended section 2 was intended to restore the invidious discrimination requirement as articulated by the Whitcomb and White courts: a plaintiff must prove either (1) the subjective discriminatory motive of the legislators or officials, or (2) the existence of objective factors, showing that the electoral scheme interacted with racial bias in the community and allowed that bias to dilute the minorities' voting strength.
Because we are divided in out interpretation of Gingles and section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1982), we do not specifically direct the district court how to proceed on remand. Rather, we instruct the district court to proceed in accordance with Gingles, giving due consideration to the views expressed in Chief Judge Tjoflat's and Judge Kravitch's specially concurring opinions.
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