908 F.

2d 1540
59 USLW 2144

Carrie MEEK, et al., Plaintiffs-Appellants,

v.
METROPOLITAN DADE COUNTY, et al., DefendantsAppellees.
No. 89-5146.

United States Court of Appeals,

Eleventh Circuit.
Aug. 17, 1990.

Stephen M. Cody, Miami, Fla., for plaintiffs-appellants.

Murray A. Greenberg, Robert A. Duvall, Miami, Fla., for defendantsappellees.
Appeal from the United States District Court for the Southern District of
Florida.
Before KRAVITCH and JOHNSON, Circuit Judges, and KAUFMAN * ,
Senior District Judge.
KRAVITCH, Circuit Judge:

Carrie Meek and other plaintiffs appeal from the district court's grant of
summary judgment in favor of Metropolitan Dade County, Florida ("the
county"). The district court held that the plaintiffs failed to establish certain
required elements of their vote dilution case, and therefore granted summary
judgment for the defendants and denied the plaintiffs' summary judgment
motion. Because the district court erred in applying the law regarding vote
dilution, we reverse and remand.

BACKGROUND
2

The plaintiffs, Black and Hispanic citizens and registered voters of Dade

County, brought suit against the county alleging that the at-large scheme for
the election of the Board of County Commissioners, which is the legislative
and governing body of the county, violated section two of the Voting Rights
Act by diluting Black and Hispanic voting strength.1 Although the county has
an ethnically diverse population, the three major groups, as identified by the
parties and the district court, are: Blacks, Hispanics, and Non Latin Whites.
None of the groups constitutes a majority of the total number of registered
voters. As the district court noted: "Non Latin Whites comprise approximately
37 percent of the population and 48.67 percent of the registered voters;
Hispanics (including Hispanics born in the United States) comprise
approximately 43 percent of the population and 32.96 percent of the registered
voters; and Blacks comprise approximately 20 percent of the population and
18.37 percent of the registered voters of Dade County." Meek v. Metropolitan
Dade County, Florida, No. 86-1820, slip op. at 15 (S.D.Fla. Oct. 5, 1988)
[hereinafter Order of October 5, 1988].
3

The county electoral system for county commissioners is part of a so-called

"federated plan" that provides for the allocation of authority between the
county and the metropolitan governments. The county commission is
composed of a mayor and eight commissioners. Although the mayor may live
anywhere in the county, each of the commissioners must reside in a different
one of the eight residence districts. Each commissioner, however, must run for
election county-wide. Thus, although the county is divided into various
residence districts, the elections are conducted at-large and county-wide.

The plaintiffs' vote dilution claim was brought under section two of the Voting
Rights Act as amended in 1982.2 The Supreme Court in Thornburg v. Gingles
stated that:

5
[t]he
essence of a Sec. 2 claim is that a certain electoral law, practice, or structure
interacts with social and historical conditions to cause an inequality in the
opportunities enjoyed by black and white voters to elect their preferred
representatives. This Court has long recognized that multi-member districts and atlarge voting schemes may " 'operate to minimize or cancel out the voting strength of
racial [minorities in] the voting population.' "
6

478 U.S. 30, 47, 106 S.Ct. 2752, 2764, 92 L.Ed.2d 25 (1986) (citation and
footnote omitted) (interpolation in original). The Court further explicated the
requirements a plaintiff must meet in pursuing a section two vote dilution
claim:

7First, 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. If it is

not, as would be the case in a substantially integrated district, the multi-member
form of the district cannot be responsible for minority voters' inability to elect its
candidates. Second, the minority group must be able to show that it is politically
cohesive. If the minority group is not politically cohesive, it cannot be said that the
selection of a multimember electoral structure thwarts distinctive minority group
interests. Third, the minority must be able to demonstrate that the white majority
votes sufficiently as a bloc to enable it--in the absence of special circumstances, such
as the minority candidate running unopposed--usually to defeat the minority's
preferred candidate. In establishing this last circumstance, the minority group
demonstrates that submergence in a white multimember district impedes its ability to
elect its chosen representatives.
8

Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-67 (footnotes and citations
omitted; emphasis in original).

The Court further explained the causation threshold of Gingles as follows:

10 reason that a minority group making such a challenge must show, as a threshold
The
matter, that it is sufficiently large and geographically compact to constitute a
majority in a single-member district is this: Unless minority voters possess the
potential to elect representatives in the absence of the challenged structure or
practice, they cannot claim to have been injured by that structure or practice. The
single-member district is generally the appropriate standard against which to
measure minority group potential to elect because it is the smallest political unit
from which representatives are elected. Thus, if the minority group is spread evenly
throughout a multimember district, or if, although geographically compact, the
minority group is so small in relation to the surrounding white population that it
could not constitute a majority in a single-member district, these minority voters
cannot maintain that they would have been able to elect representatives of their
choice in the absence of the multimember electoral structure. As two commentators
have explained:
11 demonstrate [that minority voters are injured by at-large elections], the minority
"To
voters must be sufficiently concentrated and politically cohesive that a putative
districting plan would result in districts in which members of a racial minority would
constitute a majority of the voters, whose clear electoral choices are in fact defeated
by at-large voting. If minority voters' residences are substantially integrated
throughout the jurisdiction, the at-large district cannot be blamed for the defeat of
minority-supported candidates.... [This standard] thus would only protect racial
minority votes from diminution proximately caused by the district plan; it would not
assure racial minorities proportional representation." Blacksher & Menefee 55-66

(footnotes omitted; emphasis added).

12

Gingles, 478 U.S. at 50, 106 S.Ct. at 2766 n. 17.

13

While the full contours of Gingles have not been agreed upon by this circuit, it
is clear that the plaintiff must establish the three core Gingles factors in order
to prevail on a vote dilution claim. See Solomon v. Liberty County, 899 F.2d
1012, 1017-21 (Kravitch, J., specially concurring), 899 F.2d at 1037 (Tjoflat,
C.J., specially concurring) (11th Cir.1990) (evenly divided en banc court).

14

The district court's order granting summary judgment in favor of the county
held that the plaintiffs had not established that the Non Latin White bloc voting
was "legally sufficient" because the plaintiffs had not proved "the existence of a
Non Latin White bloc majority that usually defeats the election of the
minority's preferred candidate." 3 The district court reasoned that where Non
Latin Whites did not constitute a majority, Non Latin White bloc voting could
not, through numerical superiority, defeat the choice of minority voters.

15

After the plaintiffs filed a motion to alter and amend the judgment, the district
court, albeit conceding that it had erred in its understanding of the statistical
data, issued an opinion denying the motion. The district court found that
Hispanics were in fact politically cohesive, but nevertheless the district court
refused to alter the judgment because the plaintiffs still had not proved the third
Gingles factor of legally significant Non Latin White bloc voting that caused
defeat at the polls for the minorities' preferred candidates.

JURISDICTION
16

The county contends that we lack jurisdiction because the plaintiff-appellants

failed to give timely notice of appeal. We disagree. A clerk in the district court
provided plaintiffs' counsel with contradictory information concerning the date
upon which the order denying the plaintiffs' motion to alter the judgment was
entered. The clerk's statement to counsel led him to believe that the time for
appeal under Fed.R.App.P. 4(a) had already expired, although in fact counsel
still had two remaining days to file a notice of appeal. Had counsel been
informed accurately, he would have been able to file a timely notice of appeal.
He was led, however, by the district court clerk's statement to believe that his
only avenue was through Fed.R.App.P. 4(a)(5), which permits the district court,
upon a showing of excusable neglect or good cause to extend the time for filing
a notice of appeal upon motion filed not later than 30 days after the expiration
of the time prescribed by Rule 4(a). Fed.R.App.P. 4(a) establishes the period

for timely appeal in a civil case.

17

We have noted previously that the addition of the "good cause" language
"indicates that the standard should be interpreted flexibly." Davis v. Page, 618
F.2d 374, 378 (5th Cir.1980) (citation omitted), aff'd in part and rev'd in part on
other grounds, 640 F.2d 599 (1981) (en banc),4 vacated on other grounds, 458
U.S. 1118, 102 S.Ct. 3504, 73 L.Ed.2d 1380 (1982). We hold that counsel's
justifiable reliance on the district court clerk's erroneous information provides
"good cause" under the unique circumstances of this case. Furthermore, this
court, rather than "second-guess" the district court, defers to the district court so
long as its decision does not constitute an abuse of discretion. Id.; see also
Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir.1979).
Accordingly, we conclude that the extension of time was properly granted, the
notice of appeal was timely filed, and that we have jurisdiction.

SUMMARY JUDGMENT AND STANDARD OF REVIEW

18

The county contends that it was entitled to summary judgment as a matter of

law because the plaintiffs failed to "establish the existence of an essential
element [of their case], and on which [they] will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d
265 (1986). The district court agreed that the plaintiffs had failed to satisfy the
third Gingles prong.

19

Generally, in summary judgment we review the district court's legal

conclusions de novo. We are mindful that after trial of a vote dilution case, "the
clearly erroneous test of Rule 52(a) is the appropriate standard for appellate
review of a finding of vote dilution." Gingles, 478 U.S. at 79, 106 S.Ct. at
2781. Nevertheless, we may "correct errors of law, including those that may
infect a so-called mixed finding of law and fact, or a finding of fact that is
predicated on a misunderstanding of the governing rule of law." Id. (quoting
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80
L.Ed.2d 502 (1984) (citing Pullman-Standard v. Swint, 456 U.S. 273, 287, 102
S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982))). In this case, the district court's
conclusion was premised on an erroneous application of the law, and we
therefore reverse for application of "the governing rule of law."

APPLYING GINGLES
20

As noted above, this circuit is divided on the proper application of Gingles. In

Solomon, the evenly divided court was united in stating that a plaintiff, at a
minimum, must satisfy the three core Gingles factors. The en banc court

divided on the question of whether proof of the three core Gingles factors was
sufficient and whether a defendant could raise as a defense the lack of racial
bias in the community. As the court is of the unanimous opinion that the three
core Gingles factors are necessary prerequisites to a vote dilution case, see
Solomon, 899 F.2d at 1017-18 (Kravitch, J., specially concurring), 899 F.2d at
1034-36 (Tjoflat, C.J., specially concurring), we will discuss these
requirements first as our resolution of the issues concerning the core factors
may moot further concerns.
21

The heart of the dispute relates to the ability of the Non Latin White bloc
usually to defeat the minority group's choice. The district court did not decide
whether Non Latin White voters constituted a majority of the Dade County
registered voters as the district court chose to decide "the case on other
grounds...." Meek v. Metropolitan Dade County, Florida, No. 86-1820, slip op.
at 9 (S.D.Fla. Nov. 6, 1988) [hereinafter Order of November 6, 1988]. The
ground relied upon by the district court was that the Non Latin White voting
bloc, the existence of which the district court "cannot deny," id. at 8, did not
cause the election losses suffered by Black and Hispanic voters. The court
stated that to support the third prong of the Gingles test, "it is imperative that
the plaintiffs demonstrate that the Non Latin White community not only vote
[sic] as a bloc, but that they are a voting bloc majority." Order of October 5,
1988 at 20.

22

The district court's overall conclusion, common to both Blacks and Hispanics,
that the Non Latin Whites did not cause the loss of candidates of either group
rested on differing grounds as to each group. The district court applied different
rationales to the vote dilution claim of Blacks and Hispanics.

Dilution of the Black Vote

23

In its first order, the district court, noted that:

a24keen hostility in fact exists between ... [Blacks and Hispanics. The expert's]
affidavit shows that without exception, when a Black or Hispanic candidate is
running against a Non Latin White candidate, the other minority group will vote for
the Non Latin White.... In these elections [where Black candidates lost by a small
margin], had there been no hostility between Blacks and Hispanics, the election of
the Black over the Non Latin White would have been all but guaranteed.
25

Order of October 5, 1988 at 24 (record citation omitted).

26

In its second order, the district court reiterated that "one of the many

conceivable reasons why Blacks in Dade County have difficulty in electing

their preferred candidates [is that] Hispanics do not vote for them." Order of
November 6, 1988 at 8. The district court then attributed Black losses, not to
the white voting bloc's refusal to vote for the Black candidate, but to "[o]ther
important factors includ[ing] lack of Hispanic support, name recognition,
incumbency, low voter turnout, etc." The district court concluded that because
in that court's view the plaintiffs had "failed to satisfy the causation element of
Thornburg [v. Gingles] 's third prong, their claim of vote dilution must fail." Id.
27

The district court erred in its application of the causation prong of the Gingles
analysis. The district court was aware that the "multi-ethnic" nature of Dade
County differed from the simple majority/minority context contemplated by
Gingles. The district court, noting the hostility between Blacks and Hispanics,
implicitly recognized that the hostility created a permanent anti-minority
majority in Dade County, with Blacks siding with Non Latin Whites against
Hispanic candidates, and Hispanics siding with Non Latin Whites against Black
candidates. The district court, however, did not attribute to this phenomenon the
appropriate legal significance.

28

Keeping in mind the Court's admonition that "[t]he essence of a Sec. 2 claim is
that a certain law, practice, or structure interacts with social and historical
conditions to cause an inequality in the opportunities enjoyed by black and
white voters to elect their preferred representative[,]" we consider the
"functional effect" of the existing system. 478 U.S. at 48, 106 S.Ct. at 2765 n.
15. Here the social reality is that Black and Hispanic voters are hostile toward
each other in the electoral arena. Similarly, Non Latin Whites are politically
cohesive and tend not to vote for Hispanics or Blacks. The district court
concluded that because Non Latin Whites by themselves could not block the
electoral success of Blacks, Blacks had not succeeded in proving that Non
Latin Whites caused the defeat of "minority" voters. The district court erred in
failing to recognize that coalitions can form a legally significant voting bloc,
and that a coalition of Hispanics and Non Latin Whites could form the relevant
majority voting bloc for the purpose of the third Gingles factor.

Dilution of the Hispanic Vote

29

As to Hispanics in particular, the district court apparently concluded that

Hispanic candidates did not lose because they lacked Black support; instead,
Hispanic candidates lost because Hispanics were under-registered to vote in
proportion to their population. The district court reasoned:

the fact that the Hispanic population in Dade County is actually larger in size than
30

any other group in the county including Non Latin Whites, that Hispanics could also
be the largest segment of registered voters with an effective registration drive, and
that it is conceivable that Non Latin Whites are not even a majority of the registered
voters in Dade County, all combine to defeat the Hispanic defendants [sic] claims
that their votes are being impermissibly diluted by a legally significant Non Latin
White voting bloc.
31

Order of November 6, 1988 at 9-10.

32

In considering the import of the large population percentage of Hispanics, the

district court in its initial order noted the authority of Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir.1973) (en banc), aff'd sub nom. East Carroll Parish
School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976).
In McKeithen, the en banc court reversed the trial court and panel decisions,
which had "held that an at-large scheme cannot work a dilution of black voting
strength where blacks, though constituting a minority of registered voters,
comprise a majority of the total population of the parish." 485 F.2d at 1300.
Hence, the district court here properly rejected the county's contention that
Gingles could not apply at all in a setting where the Non Latin White bloc did
not constitute a majority of the total population. Nevertheless, the district court
interpreted the third Gingles prong as requiring the plaintiffs to prove that the
Non Latin White bloc in and of itself could defeat the minority choice.

33

The district court concluded that Non Latin White bloc voting did not cause the
defeat of Hispanic candidates; rather, the failure of Hispanics to register to vote
was the reason Hispanics lost, i.e., if Hispanics registered and voted, their
electoral success would be guaranteed. Critical to the district court's conclusion
was its finding that Hispanics could constitute "the largest segment of
registered voters with an effective registration drive." Order of November 6,
1988 at 10. There was, however, no evidence before the district court of voting
age populations. The only evidence related to total population and numbers of
registered voters.5 We must, therefore, conclude that the district court erred in
concluding that Hispanic underregistration causes electoral losses as there is no
evidence of the relative numbers of voting age persons in the various voting
blocs.6

34

We conclude that Hispanics lose because Non Latin White candidates receive
more racially polarized votes than Hispanic candidates. Furthermore, given the
polarization of voting and the hostility between Blacks and Hispanics, the fact
that Hispanics constitute no more than approximately 32.96% of registered
voters7 leads to the conclusion that Non Latin Whites and hostile politically
cohesive Blacks form the remaining majority. Non Latin Whites alone are

48.67% of the registered voters.8 In light of the district court's finding that
Blacks and Non Latin Whites are politically cohesive and tend to vote against
Hispanic candidates, such a setting is ripe for a vote dilution claim, and the
Hispanic plaintiffs have demonstrated the third Gingles factor, that they usually
are denied the opportunity to elect their preferred representatives because of an
opposing voting bloc.
The County's Contentions
35

The county argues that the plaintiffs fail under Gingles because they cannot
satisfy their burden of demonstrating that the plaintiff minority class will be
able to elect more representatives under a single-member district plan than it
now elects under the at-large scheme. In support of its claim, the county points
to the first Gingles factor, which requires the minority group "to demonstrate
that it is sufficiently large and geographically compact to constitute a majority
in a single-member district. If it is not, as would be the case in a substantially
integrated district, the multi-member form of the district cannot be responsible
for minority voters' inability to elect its candidates." 478 U.S. at 50, 106 S.Ct. at
2766 (footnote omitted).

36

We agree with the county that if the plaintiffs would have no greater
opportunity to elect their preferred representatives under a single-member
district plan, then they cannot show that the at-large scheme is causing their
inability to elect their preferred representatives. Gingles addresses not only a
group's ability to elect a satisfactory candidate (that is, a candidate for whom
the minority voter is willing to cast a vote), but the group's ability to elect its
preferred candidate. The county assumes that if a Black consistently has been
elected from district three, then Blacks have been successful in electing their
preferred candidate. Further, the county assumes that the only relevant inquiry
relates to the ability of Blacks and Hispanics to elect representatives based on
the residency populations as those districts are now drawn. Neither assumption,
however, is necessarily true.

37

Relying on existing residence district borders, the county states that Hispanics
and Blacks are a majority of registered voters only in districts two and three
respectively, that a Hispanic and a Black have represented those respective
districts for at least the past seven years, and concludes that neither Hispanics
nor Blacks could attain any greater electoral success by switching to singlemember districting because Blacks and Hispanics would still only elect one
representative each.

38

There are two hidden premises in the county's argument.

Existing District Lines

39

40

First, the county assumes that no other districts could be drawn that would
permit Blacks or Hispanics to elect more representatives than they do now. The
county's reliance on the makeup of the existing districts is misplaced. At issue
is whether the population distribution could be differently apportioned among
redrawn districts such that minority Black and Hispanic voters have greater
representation. According to the Supreme Court, "[t]he single-member district
is generally the appropriate standard against which to measure minority group
potential to elect because it is the smallest political unit from which
representatives are elected." 478 U.S. at 50 n. 17, 106 S.Ct. at 2766 n. 17. In
Thornburg v. Gingles, the district court did not simply count the votes within
the existing districts, but considered whether new districts could be drawn that
would enable Blacks to enjoy greater representation more in keeping with their
numbers in the population. See Gingles, 478 U.S. at 38, 106 S.Ct. at 2760.
The district court should consider whether single-member districts could be
drawn which would permit Blacks and Hispanics equal opportunity to elect
representatives of their choice. That is the baseline against which the existing
at-large system should be measured. We agree with the observation made by
Chief Judge Tjoflat in his now-vacated panel opinion in Solomon that "[o]f
course, the resulting single-member electoral system must achieve a more
proportional representation of minorities than did the previous multi-member
system." Solomon v. Liberty County, 865 F.2d 1566, 1572 n. 5 (11th Cir.1988)
(vacated). The district court, however, did not address whether alternative
districts could be drawn such that Blacks would have the opportunity to elect
one representative from a "safe" district and also have the possibility of
occasionally electing a representative from a more marginal "swing" district.
Section two does not provide a guarantee of proportional representation. It
does, however, require equal opportunity to participate and elect representatives
of the minority group's choice.

Preferred Representatives
41

Second, the county assumes that the Hispanic and Black representatives elected
from districts two and three are the "preferred representatives" of the respective
minorities. That is not necessarily so.

42

Whether the candidate elected is the preferred candidate of a particular minority

group turns on more than the candidate's race. The at-large scheme could cause
the candidate elected from the Black and Hispanic residence district to be
someone who is less responsive to the particular needs of an insular community

than would be the case under a single-member district structure. Naturally, the
less responsive candidate would not be the "preferred" candidate when
evaluated against a single-member district baseline and the candidate who
would be elected under that system. For example, in an at-large system, the
candidates from a Black or Hispanic residence district who hold themselves
forth for at-large election may not be the preferred candidate of the minority
group, but rather may be a candidate who is perceived as viable given the atlarge election scheme. Cf. Gingles, 478 U.S. at 76 n. 37, 106 S.Ct. at 2779 n.
37 (success of Black candidate not always attributable to support in the Black
community). Although the representative from district three, by way of
example, is in fact Black, that does not mean that particular candidate is the
preferred candidate of Black voters; the candidate may be a person for whom
Blacks are willing to vote when the alternative would be the election of a White
candidate, but that does not mean that the same candidate would be elected in a
single-member district plan. In contrast, under a single-member district plan, a
candidate who, because he or she is more responsive to Black concerns, is the
preferred candidate of Blacks could be elected even though he or she is
unacceptable to White voters and would not be elected under an at-large
scheme. In short, the at-large scheme may cause the Black candidate to be
someone other than the preferred candidate of Black voters. That a candidate is
of the race of the group is not dispositive; the legal standard is whether the
candidate is the preferred candidate of the minority group.
43

Whether a given minority candidate who has long enjoyed electoral success is
the preferred representative requires appraisal of local facts within the ken of
the district court and best left to it.

Alternative Avenues Open to Minorities

44

At oral argument, the county objected to any judicial involvement on the

ground that Blacks and Hispanics by joining together have sufficient political
clout to change the electoral system by instituting a referendum as permitted by
Florida law. Assuming that such a referendum is available, the plaintiffs
nevertheless have the right to pursue their judicial remedy as provided by
federal statute, rather than embarking on the task of effecting change through
the referendum method. Minorities have resorted frequently to the federal
courts for vindication of their rights. Moreover, we note that minorities may be
less successful at organizing and orchestrating voting campaigns than are other
groups, and may therefore prefer the statutory remedial scheme. Finally, the
fact that a minority group may perceive itself as less successful in the political
arena may cause diminished participation in such a referendum. Regardless of
the viability of alternative avenues, the plaintiffs are entitled to enjoy their

statutory right to seek redress in the federal courts, and we cannot deny it to
them.
Summation
45

In sum, as to the first Gingles prong, we affirm the district court's conclusion
that the plaintiffs have satisfied their burden. The second prong is not in
dispute. As to the third Gingles prong, we conclude that the district court's legal
analysis was premised upon legal error.

TASK ON REMAND
46

As the district court here denied relief based on its erroneous interpretation of
the third Gingles factor, we remand for reconsideration in light of the principles
enunciated here. See Gingles, 478 U.S. at 78-79, 106 S.Ct. at 2781.
Specifically, the district court must decide whether Blacks or Hispanics have
thus far usually elected preferred representatives. The court should also
consider whether Blacks or Hispanics are impaired in their ability to elect
representatives of their choice by the manner in which the voting districts are
now drawn. This case does not require us at this juncture to reenter those
disputed issues that divided the en banc court in Solomon. Under the Gingles
principles enunciated here, the district court could still conclude that the
plaintiffs have not satisfied the three necessary Gingles requirements: the
district court could find that Blacks and Hispanics have elected their preferred
representatives, and that the existing districting plan does not impair the ability
of either group to elect representatives of its choice. In that event the issue of
affirmative defenses would not be reached. If the district court found the
plaintiffs to have satisfied the three Gingles factors, it appears on the facts of
this case, where the district court has found the existence of racial hostility
between Blacks and Hispanics driving electoral results, that under either view
of the Solomon en banc court, the plaintiffs might be entitled to relief. Given
the posture of this case, we decline to assume the existence of facts in order to
apply the law hypothetically. Further, the Supreme Court has made clear that
the district court should analyze the facts in the first instance. We therefore
decline to reach issues not necessary to the decision of this case.

47

REVERSED and REMANDED.

Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of
Maryland, sitting by designation

The plaintiffs also alleged a constitutional claim arising under the fourteenth
and fifteenth amendments to the Constitution. To prevail on such a claim
plaintiffs must prove that the electoral system to which they object is conceived
or operated with a discriminatory purpose. See City of Mobile v. Bolden, 446
U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). The district court here,
however, found that the plaintiffs had failed to present any evidence of a
discriminatory purpose. They have not pressed their constitutional arguments
on appeal, and accordingly we do not address them further

Section two, as codified, reads as follows:

Sec. 1973. Denial or abridgement of right to vote on account of race or color
through voting qualifications or prerequisites; establishment of violation
(a) No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of
the United States to vote on account of race or color, or in contravention of the
guarantees set forth in section B(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 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 subsection (a) of
this section in that its members have less opportunity than other members of the
electorate to participate in the political process and to elect representatives of
their choice. 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 establishes a right to
have members of a protected class elected in numbers equal to their proportion
of the population.
42 U.S.C. Sec. 1973 (as amended 1982).

In the district court's order of October 5, it held that Hispanics were not
politically cohesive. In the subsequent order issued in response to the plaintiffs'
motion to alter and amend the judgment, the district court, upon reexamination
of the statistical evidence, found that Hispanics were politically cohesive

The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former
Fifth Circuit rendered prior to October 1, 1981

See, e.g., Leahy deposition. Our search of the record has not revealed a source
of the district court's assertion, and we note that the county claims that there is
no evidence in the record of voting age population
The district court's statement that Hispanics constitute the largest population
group is irrelevant. Given the absence of any evidence as to numbers of voting
age persons, the district court's statement that Hispanics could constitute the
largest portion of registered voters is mere speculation. Similarly, the district
court's assertion that "it is conceivable that Non Latin Whites are not even a
majority of the registered voters in Dade County" is entitled to no weight as we
cannot decide cases based on what may be "conceivable."

Leahy affidavit of March 17, 1988 (Leahy is Supervisor of Elections of

Metropolitan Dade County)

Id