Full opinion text
MEMORANDUM & ORDER KATHLEEN McDONALD O’MALLEY, District Judge. I. INTRODUCTION The Court today considers what appears to be a matter of first impression within this circuit. The parties before it have stipulated that Defendant Euclid City School Board (the “Board”) has violated § 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973 (“Section 2”). It is uncontroverted that minorities in Euclid have been systematically denied the opportunity to elect their preferred candidates to the Board. So, too, the parties agree that the Board must be given an opportunity to propose a legally acceptable remedy for this past discrimination before this Court may consider alternatives. There, however, agreement ends: the parties suggest sharply different approaches to evaluating whether a remedy is “legally acceptable” and propose starkly different changes to the Board’s electoral mechanism for selecting its membership. The United States argues that a remedy is not legally acceptable unless it is reasonably expected to result in the election of minority-preferred candidates based on past minority voting patterns. In particular, the United States argues that a legally acceptable remedy is one that will necessarily result in roughly proportional representation, even if minority turnout is substantially lower than non-minority turnout. Because the United States argues that the Board’s proposed remedies (noted below) do not satisfy this standard, the United States argues that the Court should fashion an acceptable remedy of its own, which, it asserts, is one that would cease use of the Board’s current at-large election system. In particular, the United States has proposed that the Board be divided into five single-member districts, with one of those single-member districts designed so as to contain a large enough African-American population to ensure the election of an African-American candidate. The Board, for its part, counters that a legally acceptable remedy need only provide the opportunity for meaningful participation. The Board asserts that historical turnout patterns are of no moment, and argues that a remedy is legally acceptable even when it requires that minority turnout increase substantially from historical norms for minorities to achieve actual representation in the political process. They argue that a plan is legally acceptable so long as it would provide representation were minorities to vote at the same rate as non-minorities. To that end, the Board proposes two different possible systems: cumulative and limited voting. In both proposals, the Board seeks to maintain its current size, the current at-large voting structure, and the current system of using staggered terms (ie., in alternating odd years, electing three members and then two members for four year staggered terms to the five seat Board). After careful consideration, while, for reasons explained below, the Court ultimately rejects both parties’ legal theories, it orders implementation of one of the Board’s alternative remedies: limited voting. In sum, the Court finds the Board’s suggestion that the Court ignore historical turnout rates in its evaluation of a proposed remedy under Section 2 unpersuasive. Minority voters in Euclid have historically turned out to vote at only a fraction of the rate of non-minorities, in part due to the longstanding absence of a meaningful opportunity to participate in the political process. A legally acceptable plan must accommodate this reality; a remedial plan cannot ignore historical reduced minority turnout resulting from the very discriminatory practices that violated the Voting Rights Act in the first instance. This Court also finds, however, that the United States is mistaken as well. The province of a court is to ensure genuine opportunity for all citizens, not to guarantee particular electoral results. Applying what it believes to be an appropriate and considered approach to the remedial analysis required in this context, the Court concludes that the Board’s limited voting proposal is an acceptable and appropriate remedy for the Section 2 violation at issue here. Thus, the Court concludes that the DEFENDANT has proposed a legally acceptable remedy and ORDERS the Board and the Cuyahoga County Board of Elections to implement LIMITED VOTING for the Euclid City School Board elections, as described below. II. BACKGROUND The Board has conceded that its current method of elections denies minorities the opportunity to participate meaningfully in the political process, in violation of Section 2. (Stipulation of December 2, 2008 (“Stip.”) (Doc. 2).) This stipulation is based in part on the conclusions reached by this Court during prior litigation (see id. at ¶ 12), which considered the very same electoral population before the Court today, see United States v. City of Euclid (“Euclid I”), 580 F.Supp.2d 584 (N.D.Ohio 2008); United States v. City of Euclid (“Euclid II”), 523 F.Supp.2d 641 (N.D.Ohio 2007). Findings from that litigation are thus incorporated into this record. A. Euclid’s Demographics The City of Euclid is experiencing rapid demographic changes. While African-Americans represented a mere one-half of one percent of Euclid’s total population during the 1970’s, this figure increased to 7.8% during the 1980s. Id. at 587. By the 1990 Census, 16.2% of Euclid’s total population was African-American and, over the next ten years, the percentage of African-Americans nearly doubled again, to 30.5%. Id. The proportionate growth of African-Americans has continued to increase rapidly to this day, and African-Americans now compose 44.6% of the total population according to the American Community Survey (“ACS”) for 2005-2007. Indeed, the population of Euclid is shifting so rapidly that this Court considers meaningfully different demographic data in this case than it did in Euclid I and Euclid II. Those cases relied upon the 2000 Census, the most reliable information available at the time of those decisions. See Euclid I, 580 F.Supp.2d at 594 (“The government’s demographic information is derived from the 2000 Census. While the City has attacked the use of this data as outdated, despite an opportunity to do so, the City has never provided reliable updated data which would give the Court an alternative benchmark against which to measure the issues presented.”). This case, conversely, relies upon the more current ACS data. Of particular relevance, African-Americans comprised only 27.8% of the Voting Age Population (“VAP”) during the 2000 Census, id. at 612, but now compose 40.2% of the VAP. (Euclid Br. of March 2, 2009, Ex. 3 at 8 (Doc. 20-4).) A comparison of either total population or VAP reveals that African-Americans have increased as a percentage of the population by approximately 50% since the 2000 Census, a significant increase by any measure. B. The Current Method of Electing Euclid’s School Board In Euclid, Board members are currently elected on an at-large basis. (Stip. ¶ 6.) The Board consists of five members, each of whom are each elected in odd-numbered years to four-year staggered terms. (Id.) Euclid voters, consequently, elect either two or three Board members every other year. (Id.), Three Board members will be elected in 2009, and two will be elected in 2011. (Id.) This method of election is, to some extent, governed by state law. In particular, the State of Ohio mandates both staggered and four-year terms. See O.R.C. §§ 3313.08-3813.09. The Board does have some control over its size, which can range from between 2 and 7 members. See O.R.C. § 3313.02. Should the population of Euclid fall below 50,000 in the next decennial Census, however, State law would cap the Board at its current membership level. See id. C. Summary of African-American Participation in Euclid Politics Until last year, no African-American had ever been elected to serve as mayor, Council Member, or Board Member in the City of Euclid. Euclid I, 580 F.Supp.2d at 589. Indeed, the first African-American to win an election in the City of Euclid, Kandace Jones, was elected only after this Court ordered redistricting and a special election. Id. at 587. She is, however, the only African-American to be elected to any of the aforementioned positions, even though, for example, three African-Americans have run for school board since 1987 and ten have run for city council since 1981. Likely both a cause and effect of the above, historical African-American turnout in Euclid has been extraordinarily low. See Euclid I, 580 F.Supp.2d at 604 (“[L]ow voter turnout has often been considered the result of the minority’s inability to effectively participate in the political process.” (citation omitted)). The United States estimates, and the Board does not dispute, that only 7.4% of the African-American VAP participated in the 5 city-council elections between 1995 and 2003, compared to 32.0% of the non-minority VAP. (Plaintiffs Br. of April 17, 2009, Ex. A at 4.) Both parties, moreover, seem to accept that African-American participation in Board elections during that time period were likely very similar. It is noteworthy, however, that African-American turnout for the individual races including an African-American candidate was markedly higher, ranging from 7.9% in one 1995 contest to 17.0% in a 2001 race. (Id. at 11.) It is also notable that the parties were not able to make more recent turnout estimates available to the Court. For example, no evidence was presented to the Court about whether the rapidly shifting demographics in Euclid, this Court’s Euclid I and Euclid II orders, the fact that an African-American was elected to city council in March of 2008, or the last presidential election have had any impact on African-American voter turnout in Euclid. The parties simply do not provide any turnout estimates for the past 5 years. While this may be a fairly short period of time in other circumstances, as noted below, it is meaningful here. III. LEGAL FRAMEWORK A. Liability under Section 2 of the Voting Rights Act The Voting Rights Act prohibits any State or political subdivision from imposing or applying “any qualification or prerequisite” to voting or “any standard, practice, or procedure” 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 membership in a language minority group. 42 U.S.C. § 1973. A court should inquire only as to whether a “standard, practice, or procedure” has the effect of denying minority voters the same opportunity to “participate in all phases of the political process as other citizens enjoy.” S.Rep. No. 97-417 at 28. It is, therefore, unnecessary to show discriminatory intent to establish a violation of Section 2. Euclid I, 580 F.Supp.2d at 590; see also Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 482, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (“[P]roof of discriminatory intent is not required to establish a violation of Section 2.... The Voting Rights Act is the best example of Congress’ power to enact implementing legislation that goes beyond the direct prohibitions of the Constitution itself.” (citation omitted)). It is appropriate for a district court to credit stipulations when determining the existence of a Section 2 violation. See Dillard v. Crenshaw County (“Dillard I ”), 649 F.Supp. 289, 291 (M.D.Ala.1986). Nevertheless, a court must confirm that the parties before it have indeed stipulated to all of the elements establishing liability. See Brooks v. State Bd. of Elections, 848 F.Supp. 1548, 1559-1560 (S.D.Ga.1994) (“[T]he factual record is deficient for the purpose of evaluating the merits of this case under Section 2.... [Because] the Proponents’ stipulations are not unconditional or undisputed.”). Liability under Section 2 is established when a plaintiff can demonstrate the existence of racial bloc voting and a court then finds that, based on a totality of the circumstances, minorities have been denied equal opportunity to participate in the political process. Euclid, I, 580 F.Supp.2d at 593. The Supreme Court has explained that a plaintiff must show the existence of three preconditions to establish racial bloc voting: 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. 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. Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). These three preconditions have come to be known as the “Gingles preconditions.” The establishment of racial bloc voting under Gingles gives rise to a presumption of liability and “it would be the ‘unusual case in which the plaintiffs can establish the existence of [racial bloc voting] but still have failed to establish a violation of [Section] 2 under the totality of the circumstances.’ ” Euclid I, 580 F.Supp.2d at 593 (quoting Teague v. Attala County, 92 F.3d 283, 293 (5th Cir.1996)). This Court explained the framework for the totality of the circumstances analysis in Euclid I: [T]here are no limits on the circumstances a Court may consider when making this inquiry, [but] guidance does exist in the form of a non-exhaustive list of factors found in the Senate Report that accompanied the 1982 amendments to the Voting Rights Act (the “Senate Factors”). While not prerequisites themselves, and not the exclusive inquiries, courts regularly employ these factors as the first lines of inquiry in assessing the totality of the circumstances surrounding the voting practices and patterns in the relevant district or subdivision. The seven Senate Factors are: 1. The extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; 2. The extent to which voting in the elections of the state or political subdivision is racially polarized; 3. The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; 4. If there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; 6. Whether political campaigns have been characterized by overt or subtle racial appeals; 7. The extent to which members of the minority group have been elected to public office in the jurisdiction. See S.Rep. No. 97-417, at 28-29 (footnotes omitted). The Senate Report recognized two further factors that, in some cases, warrant consideration as part of plaintiffs’ evidence to establish a violation: (1) “whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;” and (2) whether “the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.” Id. at 29 (footnotes omitted). The Senate Report observed that, while all of the factors “assist the court in determining whether, in the totality of the circumstances, vote dilution exists,” it is not necessary that “any particular number of factors be proved, or that a majority of them point one way or the other.” Id. Since the 1982 amendments, courts have recognized two additional factors that are probative of the existence of vote dilution. The first additional factor, proportionality, compares the number of existing majority-minority districts to the minority population percentage. See De Grandy, 512 U.S. at 1014 n. 11, 114 S.Ct. 2647. Unlike Senate Factor Seven, which looks to the “political or electoral” success of minority candidates, proportionality looks to “the political or electoral power of minority voters.” Old Person v. Brown, 312 F.3d 1036, 1042 (9th Cir.2002) (quoting De Grandy, 512 U.S. at 1014 n. 11, 114 S.Ct. 2647). The second additional factor is racial separation. “[0]n-going racial separation ... — socially, economically, religiously, in housing and business patterns— makes it especially difficult for [minority] candidates seeking county-wide office to reach out to and communicate with the predominantly white electorate from whom they must obtain substantial support to win ... at-large elections.” United States v. Charleston County, 316 F.Supp.2d 268, 291 (D.S.C.2003), aff'd, 365 F.3d 341 (4th Cir.2004); see McMillan v. Escambia County, 688 F.2d 960, 967-68 (5th Cir.1982), factual findings adopted by 748 F.2d 1037 (5th Cir.1984). This factor differs from Senate Factor Five in that racial separation serves as a barrier to minority candidates while socioeconomic disparities serve as a barrier to minority voters. Euclid I, 580 F.Supp.2d at 591-93 (select citations omitted). Ultimately, “[t]he central and dispositive question is ‘whether the use of a contested electoral practice or structure results in members of a protected group having less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’ ” Charleston County, 316 F.Supp.2d at 298 (quoting Cingles, 478 U.S. at 63, 106 S.Ct. 2752) (emphasis added). In this case, the Court answers this question in the affirmative, with reference to the same broad array of historical, geographic, socio-economic, and practical electoral factors it considered in Euclid I. B. Determining the Proper Remedy for a Section 2 Violation 1. The Court Must Consider Whether the Defendant’s Proposal is Acceptable Prior to Evaluating Other Potential Remedies A district court begins its remedial-phase evaluation under Section 2 of the Voting Rights Act by considering the defendant’s proposed remedy. (Plaintiffs Br. of April 17, 2009 at 3) (citing Wise v. Lipscomb, 437 U.S. 535, 539-41, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978)); see also Bone Shirt v. Hazeltine, 461 F.3d 1011, 1022 (8th Cir.2006). As the United States accurately notes, “[a] court must adopt a defendant’s proposed remedy if the plan is legally acceptable.” (Plaintiffs Br. of April 17, 2009 at 3 (citing Wise, 437 U.S. at 541, 98 S.Ct. 2493) (emphasis added)); see also Cottier v. City of Martin, 551 F.3d 733, 744 (8th Cir.2008). Undoubtedly, it is a “curious doctrine that allows the foxes, once challenged, to tell this Court that it must accept their plan for protecting and assuring the rights of the hens.” Henderson v. Bd. of Supervisors, No. 87-0560, 1988 WL 86680, at *6, 1988 U.S. Dist. LEXIS 16729, at *13 (E.D.Va. June 6, 1988). It is, however, the doctrine this Court is compelled to apply. See id. When evaluating a defendant’s proposal, a court is not to inquire whether the defendants have proposed the very best available remedy, or even whether the defendants have proposed an appealing one. McGhee v. Granville County, 860 F.2d 110, 115 (4th Cir.1988) (noting that a court may not “substitute its judgment of a more equitable remedy” in place of the defendant’s proposal (citing Upham v. Seamon, 456 U.S. 37, 42, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982))). A district court may reject the defendant’s proposal under only one condition: if that proposal “is legally unacceptable because it violates anew constitutional or statutory voting rights — that is, [if] it fails to meet the same standards applicable to an original challenge of a legislative plan in place.” Id.; see also Goosby v. Town Bd. of Town of Hempstead, 981 F.Supp. 751, 755 (E.D.N.Y.1997); cf. Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975) (“We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.”). That single question ends the Court’s inquiry— a defendant need not even articulate a rationale for its preferences. Harper v. City of Chicago Hts., 223 F.3d 593, 602 (7th Cir.2000) (Wood, J.) (“It is somewhat troubling that the City has not articulated why it prefers single-member districts over cumulative voting, but this is not an ironclad requirement for public bodies as long as the entity’s actual preference can legitimately be inferred from facts on the record.”). A defendant’s proposal, in sum, is accorded great deference, although “[i]t is well-settled that any proposal to remedy a violation of Section 2 of the Voting Rights Act, whether accorded deference or not, must conform to the requirements of that section and the United States Constitution.” Henderson, 1988 WL 86680, at *6, 1988 U.S. Dist. LEXIS 16729, at *13-14 (citation omitted). 2. If the Defendant’s Remedy is Unacceptable, a Court Must Create an Alternative If the Defendant’s proposal is not legally acceptable, the district court must then craft its own remedy. The Seventh Circuit has succinctly explained this process: When a Section 2 violation has been found, the district court must, wherever practicable, afford the jurisdiction an opportunity to remedy the violation first, ... with deference afforded the jurisdiction’s plan if it provides a full, legally acceptable remedy.... But if the jurisdiction fails to remedy completely the violation or if a proposed remedial plan itself constitutes a Section 2 violation, the court must itself take measures to remedy the violation. Harper, 223 F.3d at 599-600. When searching for an appropriate remedy, a court may choose to rely on alternatives proposed by the plaintiff, see Wise, 437 U.S. at 541, 98 S.Ct. 2493, but certainly is not required to do so. If the district court must craft its own remedy, that remedy must, to the greatest extent possible, effectuate the policies and preferences expressed in the defendant’s remedial plan. Upham, 456 U.S. at 41-42, 102 S.Ct. 1518 (“[A court-ordered remedy should not] intrude on state policy any more than is necessary.”); Cane v. Worcester County, Md., 35 F.3d 921, 928 (4th Cir.1994) (“The court, in exercising its discretion to fashion a remedy that complies with Section 2, must to the greatest extent give effect to the legislative policy judgments underlying the current electoral scheme or the legally unacceptable remedy offered by the legislative body.”). Any plan created by the Court, of course, must “completely remed[y] the prior dilution of minority voting strength and fully provide[ ] equal opportunity for minority citizens to participate and to elect candidates of their choice.” United States v. Dallas County Commission, 850 F.2d 1433, 1441-42 (11th Cir.1988). Indeed, if a court must craft its own remedy, such a remedy is “subject in some respects to stricter standards than are plans developed by [the state].” Upham, 456 U.S. at 42, 102 S.Ct. 1518. 3. Whether a Plan is Legally Acceptable Whether a particular plan is legally acceptable is a fact-specific inquiry. See Harper, 223 F.3d at 600 (“[A]t-large procedures that are discriminatory in the context of one election scheme are not necessarily discriminatory under another election scheme.” (citing U.S. v. Dallas County Comm’n, 850 F.2d 1433, 1438 (11th Cir.1988))). Generally speaking, however, a legally acceptable plan is one that corrects the existing Section 2 violation without creating one anew. Euclid II, 523 F.Supp.2d at 644. Such a plan must ensure equal opportunity in voting and afford the minority population a reasonable opportunity to elect its preferred candidate through meaningful participation in the political process. Id.; see also Hall v. Virginia, 385 F.3d 421, 429 (4th Cir.2004) (“Section 2 is a guarantee of equal opportunity in voting, ensuring that a minority group is not denied, on account of race, color, or language minority status, the opportunity to exercise an electoral power that is commensurate with its population in the relevant jurisdiction.”); Rural W. Tenn. African-American Affairs Council, Inc. v. Sundquist, 209 F.3d 835, 843 (6th Cir.2000). Any valid remedy shall, moreover, give minorities the opportunity to elect minority candidates. Euclid I, 580 F.Supp.2d at 597 (“‘[T]he Voting Rights Act’s guarantee of equal opportunity is not met when candidates favored by blacks can win, but only if the candidates are white.’ ” (quoting Rural W. Tenn., 209 F.3d at 840)); see also Ruiz v. City of Santa Maria, 160 F.3d 543, 554 (9th Cir.1998). A reviewing court is obliged to be mindful, however, that, while a plan must provide a meaningful “opportunity to exercise an electoral power that is commensurate with its population,” that is not the same as a guarantee of success. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 428, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (“We have said that the ultimate right of Section 2 is equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race.” (citation omitted)); Baird v. Indianapolis, 976 F.2d 357, 359 (7th Cir.1992) (Easterbrook, J.) (“[T]he electoral process ensures equality of opportunity and not equality of outcome.”). The promise of Section 2 is that any barriers to truly equal political participation are removed for minorities, but a necessary part of equal participation is the possibility of a loss. Nevett v. Sides, 571 F.2d 209, 236 (5th Cir.1978) (“[Section 2 guarantees] an effective equality, although [it is] not a guarantee of equality of result — after all, the right to vote was protected, not the right to vote for the winning candidate.”); see also Earl Old Person v. Brown, 312 F.3d 1036, 1044 (9th Cir.2002); Martinez v. Bush, 234 F.Supp.2d 1275, 1303 (S.D.Fla.2002). Certainly, a given defendant may choose to propose a plan that aims for rough proportionality, because it is safe to assume that a plan with such a feature does not dilute the vote in violation of Section 2. Cf. Euclid II, 523 F.Supp.2d at 645 (“As discussed above, the number of opportunity districts in the proposed remedial plan is roughly proportional to the percentage of Euclid’s African-American voting-age population.”). Contrary to the United States’ implicit assertion in this case, however, a proposed plan does not violate Section 2 merely because it will not necessarily result in roughly proportional representation. Cf. Johnson v. De Grandy, 512 U.S. 997, 1013-14, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (“The court failed to ask whether the totality of facts, including those pointing to proportionality, showed that the new scheme would deny minority voters equal political opportunity.”). Such a contention confuses the use of proportionality as one tool through which a reviewing court determines the possible existence of vote dilution on the one hand, with a guarantee of proportional representation on the other. Solomon v. Liberty County Comm’rs (“Solomon II ”), 221 F.3d 1218, 1224 (11th Cir.2000) (en banc) (“The degree to which minority candidates have achieved proportional representation may be relevant under the totality of the circumstances in a given case. But it is important to keep the concepts of ‘proportionality’ and ‘proportional representation’ distinct.”); see also De Grandy, 512 U.S. at 1014 n. 11, 114 S.Ct. 2647 (“ ‘Proportionality’ ... is distinct from the subject of the proportional representation.”). The former is common sense, the latter is prohibited by statute. See De Grandy, 512 U.S. at 1014 n. 11, 114 S.Ct. 2647; Seastrunk v. Burns, 772 F.2d 143, 153 (5th Cir.1985) (“The language of the Voting Rights Act itself provides expressly that, although the Act is intended to discourage discrimination against minority groups with respect to their opportunity for participation in the electoral process, it does not purport to guarantee or to compel minority representation in publicly elected bodies that is proportional to the racial makeup of the political unit.”); cf. Holder, 512 U.S. at 956, 114 S.Ct. 2581 (Ginsburg, J., dissenting) (“There is an inherent tension between what Congress wished to do and what it wished to avoid — between Congress’ intent to allow vote dilution claims to be brought under Section 2 and its intent to avoid creating a right to proportional representation for minority voters.” (quotations omitted) (citing Gingles, 478 U.S. at 84, 106 S.Ct. 2752 (O’Connor, J., concurring in judgment))). IV. ANALYSIS A. The Court Accepts the Parties’ Stipulation as to Liability As previously indicated, the parties have entered into a stipulation as to liability in this action. (See generally Stip.) The parties first note that Euclid I considered the very same population at issue here and agree that the findings in Euclid I are, thus, probative of and meaningful to the Court’s assessment of liability in this case. (Id. at ¶ 3 (“The electorate for the Euclid City Council and the Euclid City School District Board of Education is the same. Thus, the findings of this Court in [.Euclid I ] ... are probative of the vote dilution claim in the instant case.... ”).) More specifically, the Board acknowledges that the Gingles preconditions demonstrate the existence of racial bloc voting among this electorate: Defendants acknowledge that the City of Euclid engaged in a vigorous and costly defense against the allegation that its election process for city council members violated Section 2 of the Voting Rights Act, and that, nevertheless, this Court ruled the United States proved beyond a preponderance of the evidence that a Section 2 violation occurred. In light of this Court’s ruling in United States v. City of Euclid, Defendants stipulate that the United States would establish at trial in this case the factors identified in Thornburg v. Gingles, 478 U.S. 30 [106 S.Ct. 2752, 92 L.Ed.2d 25] (1986), which are probative of a vote dilution claim under Section 2. (Id. at ¶ 12; see also id. at ¶ 10 (relating to the first Gingles precondition).) The Board goes on to stipulate that the current method of elections has the discriminatory effect of denying African-Americans the equal opportunity to participate in the political process: Based upon this Court’s findings and ruling in [Euclid I], Defendant Euclid City School District Board of Education further acknowledges that the current method of electing its members as set forth in the Ohio Revised Code operates with a discriminatory effect in Euclid so as to violate Section 2 of the Voting Rights Act. (Id. at ¶ 13.) The Court finds that these stipulations establish liability under Section 2 of the Voting Rights Act. As an initial matter, the Defendant directly states that “the current method of electing [Board Members] ... violate[s] Section 2 of the Voting Rights Act.” Standing alone, this might be enough to justify a finding of liability. There is, however, substantially more. First, while not separately conceding the applicability of the various Senate Factors, the Board concedes that this Court previously found that African-Americans in the City of Euclid suffered historical discrimination in housing, education, and employment that affected their ability to participate equally in the political process, that voting in Euclid historically has been racially polarized, and that the “slot” voting system and historical reliance on candidate slating enhanced the dilution of African-American voting strength in Euclid. The Board does not suggest that these findings be reconsidered, nor does it claim that they are not meaningful to the liability analysis the Court undertakes here. Indeed, it concedes that these findings are probative of that inquiry. In addition, there has never been an African-American elected to the Board, even though African-Americans now make up more than 40% of the electorate. This lack of proportionality, and the historical failure to elect minorities documented in Euclid I, also demonstrates that African-Americans have not been provided an equal opportunity to participate in the political process. Euclid I, 580 F.Supp.2d at 612 (citing Rural W. Tenn., 209 F.3d at 844). Collectively, the parties’ stipulations, this Court’s prior findings in Euclid I, and the lack of proportionality in past Board elections mandate the conclusion that Section 2 has been violated in connection with those elections. This Court so finds, and turns to the question of the appropriate remedy for that violation. B. The Board’s Proposed Remedies The Board proposes either limited voting or cumulative voting to cure its Section 2 violation. While the Board first appeared to express a strong preference for cumulative voting, by the time of the remedial hearing, the Board’s counsel made it clear that the Board expresses no preference between them. (Hrg. Tr. of May 20, 2009 at 216:12-14, Argument of Dean K. Smith) (“Smith”) (“[T]he fact that cumulative voting was listed first and limited second is almost a toss-up”) Both systems work under a similar principle, and would have the same theoretical effect on minority representation in this case. (Hrg. Tr. of May 19, 2009 at 18:10-14, Defense Expert Dr. Richard Engstrom (“Engstrom”) (“Question: Did you reach a different result about cumulative as opposed to limited voting systems? Answer: No.”); see also id. at 23:9-10.) Under the Board’s limited voting proposal, each voter would be able to vote for a single candidate in school board elections, even though multiple seats are vacant every two years. For example, during the 2009 elections, every voter would vote for a single Board member, although three members would be elected. In cumulative voting, on the other hand, voters would have three votes in the 2009 election, but would be able to aggregate those votes if they wished. In cumulative voting: Voters receive as many votes to cast as there are seats to fill; voters then may distribute these multiple votes among minority candidates in any way they prefer. Thus, voters may “plump” all their votes on one candidate — the strategy of choice for minority groups with intense preferences for a particular candidate — or give one vote each to several candidates. If five seats on a city council are to be filled, voters would have five votes each to distribute as they saw fit. McCoy v. Chicago Heights, 6 F.Supp.2d 973, 982 (N.D.Ill.1998), rev’d on other grounds, 223 F.3d 593 (7th Cir.2000) (quoting Richard Pildes & Kristen Donoghue, Cumulative Voting in the United States, 1995 U. Chi. Legal F. 241, 254 (1995)) (other citations omitted). It is clear enough why, generally speaking, either of these systems provides a cohesive minority group increased opportunity relative to a traditional voting system. In a district with extreme racial polarization, a minority group will be unable to elect a candidate because, of course, they are outvoted for every available seat. Indeed, this is the very result that has obtained in Euclid — to date, or at least prior to this Court’s ruling in Euclid I, despite representing a significant percentage of the Euclid VAP, no African-American had ever won a city-wide election for City Council, School Board, or mayor. On the other hand, under either limited or cumulative voting, if minority voters coalesce around a single candidate, that candidate will win so long as certain numerical conditions (discussed infra.) are met. Of course, a proposed remedy is not legally acceptable merely because it is better than the current system — a defendant may not come into court and promise to discriminate less; an acceptable remedy must not discriminate at all. 1. Limited vs. Cumulative Voting Although limited and cumulative voting have the same theoretical effect on minority representation in this case and are, thus, equally acceptable or unacceptable under the principles traditionally articulated in Voting Rights Act cases, as between the two, the Court finds limited voting to be the preferred option. First, limited voting is in use throughout Ohio, whereas cumulative voting is currently unknown in this State. (Smith at 217:2-6 (“Question: [B]ased on the testimony from the Board of Elections it appears that ... at least in Ohio, limited voting is fairly common but cumulative voting is almost unheard of. Answer: That’s correct, Your Honor.”).) Second, the Cuyahoga County Board of Elections, which is responsible for administering voting procedures in Euclid, has explained that it would be difficult to implement a system of cumulative voting, whereas it would be straightforward to implement a system of limited voting. (Hrg. Tr. of May 19, 2009 at 11:19-24, Argument of Frederick W. Whatley) (“Whatley”) (“Two of the proposed remedies we don’t — would be easily done. The third, cumulative voting, would be more difficult in ballot creation, tabulation, voter education, and poll worker education.”); id. at 173:13-16, Testimony of Jane Plat-ten, Director, Cuyahoga County Board of Elections (“Platten”) (“Question: [L]et me ask you, can the Cuyahoga County Board of Elections even prepare [the type of cumulative ballot submitted as a sample by the Euclid School Board]? Answer: We could not create this ballot in this style, no.”); id. at 189:18-24 (“Question: And if, in fact, this Court were to order a limited voting scheme as a remedy here, you would take on essentially no additional burden in order to implement that order?” Answer: “That’s absolutely correct____”). Third, in part due to the first and second points noted above, and in part as a function of its inherent characteristics, cumulative voting is a more difficult concept for voters to understand. This could make it more likely that voters in such a system commit errors while voting, which could lead to good faith votes being disallowed. Where, as here, the Court has found vote dilution due at least in part to historical discrimination in education, employment, and socio-economic factors, a remedy that makes the voting process more difficult and more complex, but does not contain a plan to educate voters on that process, would be counterproductive. In the absence of any expressed preference between limited and cumulative voting on the part of the Euclid School Board, there is no reason to impose a new and more complicated system of voting on Ohio voters, or to impose a difficult mandate upon Cuyahoga County. The Court will, accordingly, consider only the limited voting proposal in the remainder of its analysis. 2. The Board’s Preference for At-Large, Staggered Elections As a matter of law, the particular reasons that the Board might have for its preference is not of overwhelming importance. A system that dilutes minority voting power is not made less dilutive because of good intentions, nor would a Court be justified in rejecting a proposed remedy in which minority voters were afforded the full and fair opportunity to participate even if that remedy were to have been designed by the most notorious racists. As a practical matter, however, it is the better practice for a district court to acknowledge the non-discriminatory reasons that underlie a defendant’s proposal where, as here, the Plaintiff challenges that proposal’s compliance with Section 2. Cf. Harper, 223 F.3d at 602 (“It is somewhat troubling that the City has not articulated why it prefers single-member districts over cumulative voting, but this is not an ironclad requirement for public bodies as long as the entity’s actual preference can legitimately be inferred from facts on the record.”). Indeed, a particularly tenuous non-discriminatory explanation for a policy preference can be probative evidence that a system does not afford minorities a truly equal opportunity to participate. Euclid I, 580 F.Supp.2d at 592. In this case, the Board relies primarily on amicus curiae, the Ohio School Board Association (the “OSBA”), to articulate what it describes as substantial nondiscriminatory justifications for its preference for both at-large and staggered elections. (See Amicus Br. of March 3, 2009.) The United States does not challenge the legitimacy of any of the asserted non-discriminatory reasons, though it does argue that combining at-large elections with staggered terms can have a dilutive effect on a population’s voter participation, and, as discussed below, asks that the Court forbid one of those practices here. First, the OSBA notes that it would be much harder to fill Board seats without at-large elections. (Id. at 5.) In both 2003 and 2007, for example, only one candidate sought each of the two seats that were up for election and the OSBA notes that, in the absence of an at-large system, it is possible that neither of those two candidates would have been eligible. (Id.) Indeed, the OSBA asserts, and the United States does not dispute, that school districts in Ohio “sometimes find no one wants to run for the board,” and that the elimination of at-large districts “would only further aggravate this problem.” (Id.) The OSBA also observes that at-large districts are important to school boards because the types of issues those boards address require district-wide support or accountability. For example, school boards must determine whether to close a particular school and how to obtain approval for tax-levies. {Id. at 6-10.) Geographic partisanship would make such decisions far more difficult and, at times, even impossible. Indeed, use of at-large districts appears more important to school boards than other elected bodies, because “[u]nlike other political structures, school boards exist for the precise purpose of cultivating this consensus and shielding the provision of education from the clash of political conflict.” McClain, The Voting Rights Act and Local School Boards: An Argument for Deference to Educational Policy and Remedies for Vote Dilution (1988), 67 Tex. L.Rev. 139, 171. Finally, the OSBA points this Court to troubling examples of recent misconduct on the part of school board officials in Ohio, and suggests that any action that reduces the number of qualified potential candidates for office, such as the elimination of at-large districts, might well increase the incidents of such misconduct. {Id. at 10.) The OSBA also makes a strong case that there are legitimate, non-discriminatory justifications for staggered terms. In particular, they argue: Boards of education have immense responsibilities for the management and control of school districts. These obligations include authorizing tax levy issues, appropriating funds, employing a superintendent, treasurer, principals, teachers and non-teaching employees, approving curricula and text books, serving as a quasi-judicial body for certain student or teacher disciplinary actions, engaging in the purchase or sale of property and construction of school facilities, and authorizing vendor contracts and paying debts or claims.... Staggered terms provide boards with continuity in the exercise of management discretion over these and other important matters. This method of electing board members allows for a gradual turnover in membership, rather than having the risk of an entirely new board take office at once.... [Sjtaggered terms reduce the frequency of ... controversies and provide consistency in a board’s management of a district. A Section 2 remedy that denies boards these benefits would have the undesirable effect of increasing drastic swings in their memberships. This turnover would erase institutional memory, foment sudden and unpredictable changes in board actions, and leave superintendents, other employees and students groping for moorings in fundamental matters ranging from employment security to curricula. (Id. at 10-11.) Simply, as the Board’s counsel explained on May 20, 2009, “when you have five or seven member Boards of Education the possibility of a complete turnover is much greater than, for example, the United States Congress,” and that risk threatens the Board’s ability to operate and, importantly, to monitor effectively the performance of the superintendent. (Hrg. Tr. of May 20, 2009 at 219:18-24.) The Court’, for its part, independently concludes that the OSBA has articulated legitimate, nondiscriminatory justifications for the use of both at-large elections and staggered terms. The Court concludes, moreover, that the United States’ attack on the continued use of staggered terms is neither well-supported, nor sufficient to justify ignoring the strong policy ratio-' nales underlying their use in school board elections. The United States, relying on City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980), argues that “the Supreme Court recognizes staggered terms, as one of many vote dilution devices in at-large elections.” (December 2, 2008 filing at 4 .(Doc. 2)). This is not, however, exactly what City of Rome holds. First, City of Rome does not consider Section 2; it considered a claim arising under § 5 of the Voting Rights Act (“Section 5”). Under Section 5, certain jurisdictions are prohibited from adopting any change to their electoral procedures that weaken minority voting strength (i.e., cause “retrogression”). See City of Rome, 446 U.S. at 185, 100 S.Ct. 1548 (“[T]he purpose of § 5 has always been to insure [sic] that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their'effective exercise of the electoral [process].” (citation omitted)). For a court to conclude that the shift to staggered terms in a particular jurisdiction is retrogressive under Section 5 is very different than for a court to conclude that staggered terms themselves are necessarily dilutive under Section 2. Cf. Holder, 512 U.S. at 881, 114 S.Ct. 2581 (noting that certain retrogressive changes under Section 5 are not even cognizable as potential claims under Section 2). Second, City of Rome found that the district court did not “clearly err” in concluding that “the electoral changes from plurality-win to majority-win elections, numbered posts, and staggered terms, when combined with the presence of racial bloc voting and Rome’s majority white population and at-large electoral system, would dilute Negro voting strength.” City of Rome, 446 U.S. at 188, 100 S.Ct. 1548. In other words, all of Rome’s proposed changes, including staggered terms, collectively led to retrogression. City of Rome, thus, stands for the proposition that staggered terms can be less advantageous in certain situations for minority voters, but does not stand for the proposition that staggered terms themselves are particularly likely to violate Section 2. The United States’ additional citations also fail to support its contention that this Court must forbid the use of staggered terms as part of any remedy that does not employ a single member district plan. The United States cites, for example, to a scholarly book that discusses electoral reform, but its citation does not appear to relate to staggered voting; the citation, instead, stands for the unremarkable proposition that limited and cumulative voting are only effective at increasing minority representation when minorities vote. See Electoral Reform and Minority Representation (Shaun Bowler, et al, 2003) at 105 (“Latino candidates ... win relatively few seats when participation levels are low.”). The United States also cites City of Lockhart v. United States, 460 U.S. 125, 148 n. 9, 103 S.Ct. 998, 74 L.Ed.2d 863 (1983) (Marshall, J., dissenting in part). The problem with this citation is two-fold. First, the United States is not citing the majority opinion (and did not indicate this to the Court); it is citing Justice Marshall’s partial dissent. The majority, rather, concluded that “the introduction of staggered terms has not diminished the voting strength of Lockhart’s minorities.” Lockhart, 460 U.S. at 135, 103 S.Ct. 998. More to the point, however, Justice Marshall himself does not say that staggered terms always will be dilutive. He explained, instead, that Congress identified staggered terms as potentially problematic under Section.5. Lockhart, 460 U.S. at 148 n. 9, 103 S.Ct. 998 (Marshall, J., dissenting in part). As explained above, that is not the same as concluding that staggered terms are necessarily dilutive under Section 2. Balanced against the United States’ rather weak attack on the use of staggered plans in all at-large electoral systems is the Court’s obligation to give effect to the legislative policy judgments underlying the current electoral scheme and to effectuate the policies and preferences expressed in a defendant’s proposed remedial plan. Staggered terms for school boards are mandated throughout the state by long-standing provisions of Ohio law. As pointed out by the OSBA, moreover, the policy reasons for that mandate are both considered and considerable. And, as made clear at the remedial hearing, those same policy reasons motivate, in large measure, the remedial proposals advanced by the Board and are policy considerations on which the Board is unwilling to compromise, despite a willingness to reach compromises with the United States on a number of other important issues in this matter. Ultimately, the Court is unpersuaded that, in the circumstances presented here, the use of staggered terms has a sufficiently dilutive effect to justify a refusal to adopt the Board’s proposed remedy. Having found that the mere presence of staggered terms does not disqualify the proposed remedy before it, the Court now turns to other factors to determine whether the remedy is otherwise inadequate to cure the Section 2 violation at issue here. 3. The Standard Used to Measure the Board’s Limited Voting Proposal When evaluating a limited voting proposal, courts use a common political science construct that measures the “threshold of exclusion” to determine whether minorities have the opportunity to elect candidates of their choosing under a particular proposed system of limited voting. The “threshold of exclusion” is “the percentage of the vote that will guarantee the winning of a seat even under the most unfavorable circumstances.” Dillard v. Cuba (“Dillard III”), 708 F.Supp. 1244, 1246 (M.D.Ala.1988) (Thompson, J.); (see also Engstrom at 19:10-22 (“[T]he threshold of exclusion is a concept ... a theoretical coefficient which looks at how large a group of voters must be in order to elect a candidate of their choice regardless of how the other voters vote____ I don’t believe that it must be exceeded in order to elect. The threshold of exclusion is based on the worst case assumptions.”).) As ably explained by Judge Thompson: The worst case scenario that defines the threshold of exclusion is based on two assumptions. The first is that the majority sponsor only as many candidates as there are seats to be filled; for example, in a seven-seat jurisdiction, only seven majority-preferred candidates would run. The second is that the majority spread its votes evenly among its candidates, with no “crossover voting” for the minority-preferred candidate. If either of these assumptions is relaxed, then it is entirely possible for the minority candidate to win even if the minority does not constitute more than the threshold of exclusion in turnout. Dillard v. Chilton County Bd. of Education (“Dillard II ”), 699 F.Supp. 870, 874 (M.D.Ala.1988); Cottier v. City of Martin, 475 F.Supp.2d 932, 937 (D.S.D.2007) (“Members of a cohesive minority will have an opportunity to elect the candidate of their choice so long as their percentage of the electorate population is greater than the threshold of exclusion.”); Cane v. Worcester County, 847 F.Supp. 369, 372 (D.Md.1994), rev’d on other grounds, (“[T]he Court will apply the coefficient called the threshold of exclusion.”); Steven J. Mulroy, The Way Out: A Legal Standard for Imposing Alternative Electoral Systems as Voting Rights Remedies (1998), 33 Harv. L.Rev. 333, 337 (“[T]he threshold of exclusion has a high degree of reliability.”). Under the Board’s proposal, the threshold of exclusion for the 2009 3-seat election is 25% and the threshold of exclusion for the 2011 2-seat election is 33.3%. {See Plaintiffs’ Br. of April 17, 2009, Ex. A at 6.) In other words, assuming the worst-case scenario contemplated by the threshold of exclusion, African-Americans will elect a preferred candidate in 2009 if they comprise 25% of the voters on election day (as distinguished from VAP, the potential voters on election day) and African-Americans will elect a preferred -candidate in 2011 if they comprise 33.3% of actual voters. {Id.) The parties agree to this point. C. Whether the Board’s Proposal Violates Section 2 Turns on How a Court Should Utilize the Threshold of Exclusion The parties diverge, however, on precisely how a court should employ the threshold of exclusion when determining whether a proposed limited voting plan complies with Section 2 (ie., provides a meaningful opportunity for political participation). The Board argues that a plan complies with the requirements of Section 2 so long as minority voters have any possibility of electing a preferred candidate on election day. Specifically, the Board asserts that a court should measure the threshold of exclusion by assuming that election day turnout for minorities and non-minorities will be equal. The Board’s essential argument is that such an assumption shows that the minority group has a genuine opportunity to win, regardless of whether they take advantage of that opportunity. Thus, the Board would have the Court look to the VAP for both African-American and non-minority populations in Euclid, assume an equal percentage of turnout from those respective populations, and apply those measures against the threshold of exclusion. The United States, conversely, argues that a plan only complies with Section 2 if the historical turnout percentage of the current VAP is above the threshold of exclusion. In other words, the United States argues that it is not particularly useful to consider what might happen and that a court must look to what it knows has happened. Thus, the United States asks the Court to assume that African-Americans and non-minorities will turn out in the same percentages that they turned out in races for which historical turnout data exists (the years 1995-2003) and apply those percentages against VAP to decide if the threshold of exclusion is met. The difference between the parties’ proposals in this case is dispositive; the Board’s plan is above the threshold of exclusion when relying only upon VAP and an assumption of consistent voter turnout between minority and non-minority populations, but below it when using historical turnout data as a mechanism to predict future voter turnout rates. The parties, unfortunately, do not point this Court to any case law on which it could rely to conclude that either VAP or historical turnout is the correct metric under Section 2. It actually seems quite difficult to support the exclusive reliance on either measure when one does examine relevant case law. See e.g., Gingles, 478 U.S. at 104, 106 S.Ct. 2752 (discussing both population and registered voters); Dickinson v. Indiana State Election Bd., 933 F.2d 497, 503 (7th Cir.1991) (“The court may consider, at the remedial stage ... [factors including] minority voter registration and turn-out rates.”) (second emphasis added); cf. Abrams v. Johnson, 521 U.S. 74, 94, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) (“The District Court noted, however, that it was uncomfortable using percentages of registered voters rather than voting age population, since ‘that in essence condones voter apathy.’ ”). The Court concludes that neither parties’ proposed standard is entirely appropriate and that it must consider both VAP and the reality of substantially depressed minority voter turnout. The Court’s function is a predictive one — to use the theoretical construct of the threshold of exclusion to help it predict whether minorities will be provided a meaningful opportunity to participate in the political process if a proposed form of voting were to be implemented. Because the Court’s function is to answer this question to the greatest extent feasible, any formula that ignores the reality of the circumstances in which that predictive effort occurs would tend to warp the results. Although framed somewhat differently, this is precisely the same conclusion reached in Dillard II. There, Judge Thompson calculated the threshold of exclusion using VAP, and then inquired whether the totality of the circumstances supported his use of that number: [Biased on a particular jurisdiction’s totality of circumstances, a questioned election system may very well not be adequate for the jurisdiction, even though the percentage of black voters in the jurisdiction exceeds the threshold of exclusion for the system; and, conversely, the system may very well be fully adequate in another jurisdiction, even though the percentage of black voters in that jurisdiction is less than the system’s threshold of exclusion. The threshold of exclusion concept is therefore not an automatic cut-off point, but rather is a broad guideline which may be helpful in assessing the impact on minorities of present and proposed election systems. Dillard II, 699 F.Supp. at 874-875 (emphasis added). This Court, in responding directly to the arguments made by the parties, below conducts an inquiry into the totality of the circumstances prior to calculating the threshold of exclusion, in order to determine whether there is a more appropriate number to use in this case than VAP. What is critical to understand is that the fundamental inquiry is exactly the same — a court considering a limited or cumulative voting proposal must determine whether that proposal provides minorities a meaningful opportunity to participate in the political process by considering a combination of VAP and the existing political realities of the district. To that end, as explained below, the Court will extend a well-established guideline utilized by courts to determine whether a single-member district affords a meaningful opportunity for political participation. See, e.g., Ketchum v. Byrne, 740 F.2d 1398, 1415 (7th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985). Those courts begin their analysis by assuming that minorities may turnout at two-thirds the rate of non-minority voters. See, e.g., id. This Court concludes that this use of a two-thirds guideline is equally appropriate as a starting point for its analysis of the Board’s proposed remedy. Cf. id.; cf. also Euclid II, 523 F.Supp.2d at 645. 1. Exclusive Focus on Turnout is Improper Obviously, the results predicted by the threshold of exclusion only hold if actual election-day voters exceed it. That being said, there is no right under the Voting Rights Act to win; there is, rather, a right to meaningfully compete. See Baird, 976 F.2d at 359; Salas, 964 F.2d at 1556. While the effects of long-standing electoral discrimination on voter turnout are undeniable, t