Full opinion text
ORDER JOSEPH F. ANDERSON, Jr., District ' Judge. This is a voting rights action by two civil rights organizations and, three African American voters of Columbia, South Carolina, challenging the method of electing members of the Columbia, South Carolina City Council (hereinafter “City Council”) under Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq. (1988 & Supp. Ill 1991). The plaintiffs include the National Association for the Advancement of Colored People (NAACP), the Columbia branch of the NAACP, and Adell T. Adams, Norman P. Pendergrass, Sr., and Beatrice T. McKnight, African American residents and registered voters in the City of Columbia. The individual plaintiffs are also members of both the national NAACP and the Columbia branch. The NAACP is a non-profit, non-partisan membership organization whose goals include ensuring the political, educational, social, and economic quality of African American citizens of the United States. The defendants include the City of Columbia, its mayor and members of the Columbia City Council, the City of Columbia Election Commission, its Chairperson and its remaining members. At issue in this litigation is the so-called 4-2-1 method of electing members of the City Council for the City -of Columbia. This method provides for four council members elected from single-member districts, two council members elected from the city at large, and the mayor, also elected at large. Plaintiffs seek to have- an electoral plan imposed by this court which would require all members of the City Council to be elected from single-member districts, though continuing the at-large election of the mayor. The plaintiffs contend that the election of two council members at large dilutes the voting strength of African Americans. The court conducted a non-jury trial from July 12 through July 27, 1993. The plaintiffs offered testimony from two witnesses and two experts. The defendants offered testimony from the mayor, five lay witnesses, an at-large member of the Council, and three experts. The testimony at trial dealt with matters encompassing a period beginning with the adoption of the 1790 Constitution in South Carolina and ending with a City Council vote to rescind a garbage collection fee at a council meeting held just two weeks prior to the trial. After trial and after allowing the parties sufficient time to brief the issues in dispute, the court conducted oral argument on August 12, 1993. Before proceeding to set forth its findings of fact and conclusions of law, it is necessary for the court to recite certain procedural developments relating to the City’s election scheme and to enumerate the factors that are of concern to a court hearing a Section 2 Voting Rights Act challenge, so that the findings and conclusions may be placed in context. Development of the 4-2-1 Plan This action represents the second challenge in the last fifteen years to the City’s method of electing its City Council. In the first case, Washington v. Finlay, No. 77-1791 (D.S.C. Mar. 24, 1980), then-District Judge Robert F. Chapman upheld the method of electing City Council against a constitutional challenge of vote dilution. When Fin-lay was litigated, the City operated under a pure at-large method of electing its Council: four council members, plus a mayor, all elected at large. The plaintiffs in that action were African American registered voters in the City of Columbia who were also members of the NAACP. Judge Chapman’s decision upholding the at-large method was affirmed by the United States Court of Appeals for the Fourth Circuit in a reported decision. Washington v. Finlay, 664 F.2d 913 (4th Cir.1981), cert denied, 457 U.S. 1120, 102 S.Ct. 2933, 73 L.Ed.2d 1333 (1982). The Fourth Circuit approved Judge Chapman’s decision in all aspects save one. That exception proved significant for purposes of the litigation presently pending before the court. At the conclusion of his opinion, Judge Chapman had certified. a plaintiff class, so that all African American voters in Columbia were bound by his decision in favor of the City. However, the Fourth Circuit reversed this portion of Judge Chapman’s decision, holding that he improperly certified the plaintiff class at the conclusion of the litigation. While the Finlay case was pending on appeal, the United States Supreme Court altered the legal standard for deciding a constitutional vote dilution claim in City of Mobile v. Bolden, 446 U.S. 55,100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). In Bolden, the Supreme Court held that a claim of vote dilution must be established by proof (a) that vote dilution, as a special form of a discriminatory effect, exists and (b) that it results from a racially discriminatory' purpose chargeable to the state. Id. at 66-70, 100 S.Ct. at 1499-1501. Prior to the Bolden decision, it had only been necessary for the plaintiff in a vote dilution case to show a discriminatory effect. Although the plaintiffs in Finlay urged the Fourth Circuit to remand the case in light of the intervening Bolden decision, the court declined to do so. Instead, the court affirmed Judge Chapman’s decision, holding that he had made sufficiently broad findings of fact and conclusions of law to sustain his position under the new Bolden standard. In other words, the Fourth Circuit concluded that Judge Chapman had found that the City’s at-large election scheme had neither a discriminatory purpose nor a discriminatory effect. Among the various findings of fact made by Judge Chapman, and affirmed on appeal by the Fourth Circuit under a “clearly erroneous” standard of review, were the following: (1) Voting in the City is racially identifiable to a certain extent due to the racial make-up of certain neighborhoods and voting precincts, but voting is not polarized. African American candidates seek and receive support of voters in predominantly white areas and white candidates do the same in African American neighborhoods. In recent elections, African Americans have received a larger percentage of votes from whites than white candidates have received from African Americans. Washington v. Finlay, No. 77-1791 at ¶26. (2) The change made in 1910 from city wards to the at-large method for voting for City Council was not made to discourage greater participation by African Americans. Id. at ¶23. (3) The failure to annex an area known as “Greenview” was not racially motivated, but was instead due to “serious legal questions as to the sufficiency of the annexation petition” because of allegations of forgery. Id. at ¶ 19. (4) There was no evidence that African American candidates could not be elected under the at-large system. Id. at ¶ 30. Prior to trial in the present action, the court denied defendants’ motion in limine to preclude the relitigation of certain facts that had previously been determined in favor of the City in the Finlay case. Included among these facts were the four salient factors itemized above. The defendants made a strong case for application of the doctrine of issue preclusion by showing that the individual Afincan American plaintiffs in Finlay were members of the NAACP, and that the local branch of the NAACP was kept apprised of the developments in the case and may have even contributed to the legal costs associated with that action. Nevertheless, the court conservatively held that the plaintiffs in the two actions were not the same. The court also decided that to impose such a procedural bar in this case would fly in the face of the Fourth Circuit’s refusal to allow Finlay to be entered into judgment as a class action. Accordingly, this court declined to adhere strictly to the .doctrine of collateral estoppel and allowed the plaintiffs to present evidence in these contested areas. While Finlay was pending, two efforts were made, through local referenda, to adopt an election method more favorable to African Americans. The first, the so-called 3-3-1 plan, was defeated, as was the second proposal, the so-called 6-2-1 plan. After prevailing in the Fourth Circuit, city fathers embarked upon what the plaintiffs’ expert described as a “heroic” effort to convince the voters to adopt the current 4-2-1 plan. In December 1981, the voters adopted 4-2-1, which is the election scheme under which the City operates today. Under the 4-2-1 plan, African Americans comprise a significant majority in two of the single-member districts, and whites comprise a majority in the other two single-member districts. The other two council seats, and the mayor, are elected at large. When the first elections under the 4-2-1 plan were conducted in 1983, two African Americans were elected from the predominantly minority districts, and these same two individuals have continued to be elected through the date of the trial. It is this “mixed” method of electing the Council, adopted by the City after successfully defending its pure at-large system, that is under challenge in the litigation before the court. The Legal Standard for Determining Section 2 Voting Rights Act Challenges Section 2, as Amended Prior to the amendment of Section 2 in 1982, racial vote dilution cases were based on the Constitution. The constitutional standards were set out in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), and White v. Register, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), which were generally believed to ban electoral systems that resulted in minority voters having less opportunity than others to elect candidates of their choice, without regard to the motivation behind the adoption or maintenance of the challenged system. However, as noted above, in 1980 in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Supreme Court held that vote dilution claims were actionable only if the plaintiffs could establish that the election structure had been adopted or maintained for the purpose of depriving black citizens of the value of their votes. Id. at 66-70, 100 S.Ct. at 1499-1501. Congress responded to the requests of civil rights groups and restored White’s “results” test in amended Section 2. Section 2 now reads: (a) No voting ... practice ... 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 ... to vote on account of race or color, or [membership in language minority groups protected by the Act]. (b) A violation of subsection (a) of this section is established if, based on a 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 in the population. 42 U.S.C. § 1973 (1988). Congress’s .intent to return to the standard of White is evident in the language of the statute. The first sentence of part (b) of the Section is taken directly from White and first appeared in Whitcomb. The Senate Judiciary Committee Report on the amendment indicated that “[i]n adopting the ‘results test’ as articulated in White v. Register, the Committee has codified the basic principle in the case as it was applied prior to the Bolden litigation.” S.Rep. No. 417, 97th Cong., 2d Sess. 27-30 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 204-08; see also Smith v. Brunswick County, 984 F.2d 1393, 1398-99 (4th Cir.1993). Moreover, the Report of the Senate Judiciary Committee sets out nine factors (hereinafter sometimes referred to as “the Senate Report factors”), gleaned from White and other pre-Bolden dilution cases, that the Committee considered to be relevant to the determination of a violation: 1. the extent of any history of official discrimination in the state or political subdivision that touched the right of 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 the 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. Two additional factors [that may be probative] are: 8. 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 9. whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, standard, practice or procedure is tenuous. S.Rep. No. 417, supra, at 28, 1982 U.S.C.C.A.N. at 206. Thornburg v. Gingles’s “Necessary Preconditions” to a Section 2 Suit The Supreme Court’s most detailed interpretation of amended Section 2 to date came in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), a case challenging certain multimember districts, plus one single-member district, in North Carolina’s post-1980 legislative apportionment plan. In Gingles the Court added a “gloss” to the analysis set out in the Senate Report. While any of the factors set out in the Senate Report may be relevant to a finding of dilution, the Court indicated: These circumstances are necessary preconditions-for [a violation].... First, the minority group must be ... sufficiently large and geographically compact to constitute a majority in a single-member district---Second, the minority group must be ... politically cohesive.... Third, ... the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances ... usually to defeat the minority’s preferred candidate. Id. at 50-51, 106 S.Ct. at 2766-67 (citations omitted). Courts have interpreted this portion of the Gingles opinion as setting forth factors that are essential to a plaintiffs ease, but that are not, in and of themselves, conclusive of the existence of dilution. See Burton v. Sheheen, 793 F.Supp. 1329 (D.S.C.1992), vacated by Statewide Reapportionment Advisory Comm. v. Theodore, — U.S.-, 113 S.Ct. 2954, 125 L.Ed.2d 656 (1993). Plaintiffs cannot prevail unless they carry their burden of proof on each precondition. Thus, there is no remedy for a group that lacks the numbers, or is too geographically dispersed, to benefit from single-member districts, even if every additional Senate Report factor is present. McNeil v. Springfield Park Dist., 851 F.2d 937 (7th Cir.1988), cert, denied, 490 U.S. 1031, 109 S.Ct. 1769, 104 L.Ed.2d 204 (1989). Likewise, there is no “cognizable minority group” to claim the benefits of Section 2 unless the plaintiffs demonstrate that the jurisdiction’s minority citizens are sufficiently unified in their support of particular candidates to have elected those candidates “but for” the presence of polarized voting. Monroe v. City of Woodville, 881 F.2d 1327 (5th Cir.1989), cert, denied, 498 U.S. 822, 111 S.Ct. 71, 112 L.Ed.2d 45 (1990). Nor has the group been deprived of equal participation unless the majority votes in such a manner as to usually defeat the group’s political choices. In Gingles the Court noted: It is obvious that unless minority group members experience substantial difficulty electing representatives of their choice, they cannot prove that a challenged electoral mechanism impairs their ability “to elect.” ... Consequently, if difficulty in electing and white bloc voting are not proved, minority voters have not established that the multimember structure interferes with their ability to elect their preferred candidates. Minority voters may be able to prove that they still suffer social and economic effects of past discrimination, that appeals to racial bias are employed in election campaigns, and that a majority vote is required to win a seat, but they have not demonstrated a substantial inability to elect caused by the use of a multimember district. 478 U.S. at 48-49 n. 15, 106 S.Ct. at 2765 n. 15; see also Sanchez v. Bond, 875 F.2d 1488 (10th Cir.1989), cert, denied, 498 U.S. 937, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990); Harvell v. Ladd, 759 F.Supp. 525 (E.D.Ark.1991). The Totality of the Circumstances If, and only if, the plaintiffs carry their burden of proof as to each precondition must the court determine whether, based on the totality of the circumstances, including not only the remaining Senate Report factors but any other relevant evidence, the plaintiffs have been denied an equal opportunity to participate in the political process and to elect candidates of their choice. Gingles, 478 U.S. at 45, 106 S.Ct. at 2763-64. The ultimate question of dilution is one of fact, committed to the trial judge who is to decide it based on “ ‘an intensely local appraisal of the design and impact of the ... multimember district in the light of past and present reality, political and otherwise.’ ” Id. at 78, 106 S.Ct. at 2780 (quoting White v. Regester, 412 U.S. 755, 769-70, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973)). After receiving the testimony, ■ carefully considering all the evidence, weighing the credibility of the witnesses, reviewing the exhibits and briefs, and studying the applicable law, this court makes the following Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52. The court notes that to the extent any of the following Findings of Fact constitute Conclusions of Law, they are adopted as such, and to the extent any Conclusions of Law constitute Findings of Fact, they are so adopted. FINDINGS OF FACT The legislative and governing body of Columbia is the City Council. It consists of seven members, one of whom is the mayor. Elections are non-partisan, and terms of office are for four years. To be elected to the Council, a candidate must receive a majority vote. The current districting plan is known as the 4-2-1 plan. Four members of the City Council are elected from single-member districts. Three members, including the mayor, are elected at large. Terms of office for the two at-large seats are staggered. Columbia has a council-manager form of government. See S.C.Code Ann. §§ 5-13-10 to -100 (Law.Co-op.1976). Unlike the mayor under other forms of government who may have mainly administrative or ceremonial duties and who may vote only in case of a tie, the mayor under the council-manager form is a regular legislative member of council and has a vote the same as the other members. S.C.Code Ann. § 5-13-20. The council exercises all legislative powers of the municipality and determines all matters of policy. S.C.Code Ann. § 5-13-30. At-large elections were first adopted for Columbia in 1910 by referendum. Prior to that time, the City was governed by a council that included up to sixteen aldermen elected from wards. The change to an at-large system was made to eliminate abuses of the ward system, and not out of a desire to keep blacks from participating fully in elections within the City. Pursuant to the South Carolina Home Rule Act, Act No. 283 of the 1975 General Assembly, the City adopted the council-manager form of government consisting of a mayor and four council members. The at-large method of election was retained until the adoption of the 4-2-1 plan. Thus, in 1983, the Council consisted of four council members elected at large, plus the mayor. As previously noted, in 1980 in Washington v. Finlay, the City successfully defended its all at-large election scheme against claims that the system diluted black voting strength. No. 77-1791 (D.S.C. Mar. 24,1980). That lawsuit was based on a claim of “constitutional vote dilution,” the standards for which were set out by the Supreme Court in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). In Finlay, Judge Chapman concluded “that the plaintiffs had failed under White v. Regester’s standard to prove a discriminatory effect traceable to the at-large voting system.... [He further concluded] that there had been a failure to prove any racially discriminatory intent or purpose.” Finlay, 664 F.2d at 918. Although no blacks had been elected to office under the challenged system, the court did not find this fact to be evidence of vote dilution. Rather, the court found that “[t]he election process of the City Council in Columbia is the most open and accessible that can be imagined.” Id. at 922. Despite having successfully defended the all at-large plan, the City undertook to respond to black citizens’ concerns that no black representative had been elected to the City Council. The end result was the adoption of 4-2-1. Two earlier referenda failed. The first, which proposed three single-member districts and three at-large seats plus the mayor, was rejected by both black and white voters in a referendum held in December 1979. The second referendum, held in April 1981, which proposed six single-member districts and two at-large seats, plus the mayor, also failed. In the spring of 1981, after the defeat of 6-2-1, the Greater Columbia Community Relations Council (CRC), a biracial group formed to promote better race relations, appointed a special committee of blacks and whites to study the “issue' of Black representation on City Council.” The committee was of the view that a new method of elections should be adopted and that “[t]wo Blacks should be on City Council.” The special committee in turn appointed a sub-committee “to explore, examine and recommend to the larger group of black and white citizens and the Community Relations Council Board an election plan that would ‘reasonably assure’ the election of blacks to City Council.” Included on the sub-committee were two of the plaintiffs in Washington v. Finlay, Frank Washington and Alvin Hinkle. The sub-committee recommended a 4-2-1 plan, which the chair said was the result of “a lot of give and take, compromise and hashing out of ideas, suggestions and facts.” The CRC adopted the recommendation of the sub-committee and submitted the 4-2-1 plan .to the City Council in 1981. In its formal statement to the Council, the CRC said “[i]t is believed that [the existing at-large system] method prohibits Blacks from being elected.” In October 1981 the City Council voted three-to-two to conduct a third referendum, this time on the 4-2-1 plan. The following month, the court of appeals affirmed the decision of the district court in Washington v. Finlay, 664 F.2d 913 (4th Cir.1981). The referendum on 4-2-1 was supported by Mayor Kirkman Finlay and two members of Council, Rudolph C. Barnes and Patton Adams. In addition, many prominent white civic leaders in the Columbia area spoke out publicly in favor of the plan. The 4-2-1 plan was opposed by Councilmen William Outz and Paul Bennett. In the election, 4-2-1 was supported by 98.9% of the African American voters and 26.9% of the white voters. The referendum was successful and 4-2-1 was adopted in December 1981. Since the adoption of 4-2-1, two blacks, Luther Battiste and E.W. Cromartie, have been elected to majority black single-member district seats and have been re-elected in each subsequent election. At the present time, the Council is made up of these two black males, two white females, and two white males. The mayor is also a white male. No African American candidate has ever been elected to an at-large seat within the City. The 1990 population of the City of Columbia as reported by the census was 98,052, of which 43.69% were black. Through annexations, the population was increased to 100,-757, which was the population utilized to redraw the four single-member districts to comply with one-person, one-vote requirements. (These changes were precleared by the Attorney General under Section 5 of The Voting Rights Act on January 27, 1992). Blacks make up a slightly larger share of the post-annexation population, 45.15%. The 1990 census reported Columbia’s voting-age population (VAP) as 78,779, of which 30,909 (39.24%) were black. After the annexations, the VAP increased to 80,581, with blacks constituting 40.56% of the VAP. The City produced witnesses known for their support of black voting rights and interests, all of whom voiced praise for the operation of 4-2-1 in terms of its effectiveness for the City, its unusual responsiveness to the concerns of black citizens, and its contribution to biracial cooperation in the political process. These witnesses were: Jack Bass — a journalist and chronicler of Southern politics and race relations; Milton Kimpson — currently Deputy Commissioner for the Department of Corrections, and formerly Executive Assistant to Governor Richard W. Riley and Director of the Community Relations Council; Dr. Latta Thomas — Chairman of the Community Relations Council at the time 4-2-1 was adopted; Jesse Washington — current Chairman of the Community Relations Council and an active participant in Columbia civic affairs; and Durham Carter — lifelong resident of Columbia, community activist and political organizer. Four of these five witnesses (Kimpson, Thomas, Washington and Carter) are African American and members of the NAACP. The plaintiffs’ witnesses included: Benjamin Adams and his wife Adell Adams — registered voters'within the City of Columbia and members of the NAACP; Dr. Orville Burton — professor of history and sociology and university scholar at the University of Illinois at Urbana — Champaign; and Dr. John C. Ruoff — historian, social scientist, statistician and demographer. Gingles’s Tripartite Test The Extent to Which African Americans Are Geographically Compact Plaintiffs established that blacks in Columbia are geographically compact in that they could constitute a majority in one or more single-member districts. Plaintiffs’ expert Dr. John Ruoff prepared a 6-1 plan containing six single-member districts with the mayor elected at large, in which blacks comprised population and VAP majorities in three of the six districts. The population in the three majority black districts ranged from 64.40% to 67.00%. The black VAP ranged from 58.47% to 63.84%. Plaintiffs also introduced into evidence an 8-1 plan containing eight single-member districts with the mayor elected at large, in which blacks comprised population and VAP majorities in four of the eight districts. The population in the four majority black districts ranged from 63.97% to 72.41%. The black VAP ranged from 58.29% to 67.53%. Plaintiffs’ single-member district plans are reasonably compact and are no more irregular in shape than the districts actually in use under the existing 4-2-1 plan. The plaintiffs therefore have established the first Gingles precondition. Political Cohesiveness in the African American Community To establish a prima facie case, plaintiffs must also establish the remaining two Gingles preconditions: first that the minority group is politically cohesive; and second that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate. 478 U.S. at 50-51, 106 S.Ct. at 2766-67. These two elements are usually established by statistical evidence of racially polarized voting by the voters in the relevant political jurisdiction. Following the language of Gingles, this court defines racially polarized voting to mean simply that there is a correlation between the race of the voter and the way in which the voter votes. See 478 U.S. at 54 n. 21, 106 S.Ct. at 2768 n. 21. In other words voting can be said to be polarized where “black voters and white voters vote differently.” Id. While this definition is straight forward, applying it to the statistical evidence presented in this ease has proven to be a difficult matter. The issue of whether polarized voting currently exists in the City of Columbia was hotly contested by the parties, and the court has found this to be the most difficult issue in the case. Such is not surprising, however, as there are numerous unanswered questions in these treacherous waters. As noted by the Court in Gingles, “there is no simple doctrinal test for the existence of legally significant racially polarized voting.” 478 U.S. at 58, 106 S.Ct. at 2770. The Court also recognized that “the degree of block voting which constitutes the threshold of legal significance will vary from district to district.” Id. at 55-56, 106 S.Ct. at 2769. After evaluating the evidence, the court concludes that polarized voting does occur, at least to a certain degree, in the City of Columbia, but that it is not “legally significant” as required to establish a case of vote dilution under Gingles. See id. at 55-57, 106 S.Ct. at 2769-70. Among the most troublesome issues concerning the existence of polarized voting are: (1) whether the court is confined to looking only at black versus white election contests or whether the court may also consider statistical evidence from white versus white races; (2) whether a “functional” approach to vote dilution eases allows the court to take into account the relatively poor turnout percentages by African American voters voting for African American candidates; (3) whether is it permissible for the plaintiffs to combine all African'American votes cast for any African American candidates in any given election, to demonstrate political cohesion; and (4) what weight, if any should the court afford to Judge Chapman’s finding in Washington v. Finlay, affirmed by the Fourth Circuit, 664 F.2d at 918, that in fact polarized voting does not exist to any significant degree in the City of Columbia. After carefully considering these difficult issues the court makes the following specific findings: Plaintiffs have established that in white versus black elections, voters in Columbia are generally polarized in that, for the most part, blacks and whites vote differently. The plaintiffs’ expert, Dr. Orville Burton, examined election returns and precinct data using bi-variate ecological regression analysis and homogenous precinct analysis. These methods are “standard in the literature for the analysis of racially polarized voting,” and both were approved by the Supreme Court in Gingles, 478 U.S. at 52-53 n. 20, 106 S.Ct. at 2767 n. 20. The defendants’ expert Dr. John D. Spurrier, who did not testify at trial, also used ecological regression analysis. To the extent that he and Dr. Burton examined the same elections, their analyses were virtually identical. Dr. Burton analyzed six at-large black/ white contests for City Council and one black/white contest for mayor from 1978-1986. He also analyzed five city referenda, including the referenda on 3-3-1, 6-2-1, and 4-2-1. Finally, he analyzed the voting in city wards for nine at-large black/white primary elections for the Richland County Council. Dr. Spurrier analyzed one additional at-large black/white city contest not analyzed by Dr. Burton: the 1992 election for mayor. He also analyzed several white/white city contests, as well as the 1992 Democratic primary and general election (black/white) for the Sixth Congressional District. Therefore, between them the experts analyzed all of the at-large black/white contests for City Council and mayor since adoption of 4-2-1. Dr. Burton’s analysis of the black/white city contests is provided in the table in Appendix A, showing the date and nature of the election, the candidates identified by race, the percentage of whites voting for white candidates, and the percentage of blacks voting for black candidates. Dr. Burton generated two sets of ecological regression estimates. The first two columns in Appendix A show the percentage of white and black turnout voting for white and black candidates. The third and fourth columns show the percentage of actual votes cast by whites and blacks for white and black candidates. The second set of estimates takes into account those voters who went to the polls but whose votes, for whatever reason, were not counted. The summaries at the end of each contest show the total percentage of the white vote cast for white candidates (TWVWC), and, where there was more than one black candidate, the total percentage of the black vote cast for black candidates (TBVBC). The elections analyzed by both Drs. Burton and Spurrier are identified in Appendix A with an asterisk. Dr. Spurrier’s estimates based upon turnout are virtually identical to those of Dr. Burton set out in Appendix A. In the seven at-large blaek/white city contests analyzed by Dr. Burton, using the Burton methodology, whites voted for white candidates at the average level of 93.96%, while blacks voted for black candidates at the average level of 73.87%. Dr. Burton also determined, for each blaek/white contest he analyzed, the preferred candidates of black and white voters. In six of the seven blaek/white contests analyzed, the candidates of choice of black voters were the least favored candidates of white voters. In the most recent City Council contest held on April 7, 1992, however, the candidate of choice for both blacks and whites was James Papadea, a white candidate. Papadea received 72.4% of the black vote while Tony L. Coleman Myers, the sole African American candidate in the election, came in a distant second receiving only 11.1% of the black vote. The referenda examined by Dr. Burton showed mixed results. Whites and blacks voted together to reject the 3-3-1 plan. The vote on 6-2-1 was polarized with the majority of blacks voting for the plan while the majority of whites voted against the plan. The vote on 4-2-1 was also polarized to a certain degree, with the majority of blacks supporting 4-2-1 while a majority of whites opposed it. However, the whites were not able to vote sufficiently as a bloc to defeat 4-2-1, which was adopted in December 1981. The court finds that racially polarized voting does exist in white versus black elections, but this does not end the inquiry. In order for plaintiffs to prevail on this factor, the court must go further to make a finding that polarized voting in the City of Columbia is legally significant. Legally significant racial bloc voting exists in general where “a white bloc vote ... normally will defeat the combined strength of minority support plus white ‘crossover votes.’ ” 478 U.S. at 56, 106 S.Ct. at 2769. This is where the plaintiffs case breaks down upon closer scrutiny. Defendants have essentially agreed with the plaintiffs that elections involving the City’s voters are generally polarized when black candidates run. According to Gingles, elections are polarized so long as a majority of white voters tend to vote differently from a majority of black voters. 478 U.S. at 53 n. 21, 106 S.Ct. at 2768 n. 21. The parties also agreed that polarization is significant under Section 2 only if it usually results in the defeat of candidates of choice of minority voters — in other words, where the combination of black votes and white cross-over votes is insufficient to elect the candidate preferred by black voters. 478 U.S. at 56, 106 S.Ct. at 2769. The parties disagree over which candidates can be counted as “candidates of choice” of black voters, as well as over whether black or white voting was “responsible” for the defeat of those choices. In the elections analyzed, there were three black candidates who received at least majority black support. To the extent that support by a mere majority of voters at the polls makes a candidate the candidate of choice, Modjeska Simkins, John Roy Harper, and Reverend William M. Bowman qualified as candidates of choice of black voters, and they were defeated. White voter behavior, however, cannot be the cause of these candidates’ defeat if black voters themselves have failed to take reasonable steps to assure their victory. See Smith v. Brunswick County, 984 F.2d 1393 (4th Cir.1993). As for white candidates for the at-large seats and for mayor, every candidate who received support from a majority of blacks at the polls was in fact elected, as was every candidate who finished first among black voters. Except for Robert Coble in 1990, the first choices of black voters in white versus white contests were also the first choices of white voters. In the 1990 mayoral election, Coble was not the first choice of white voters, but was the first choice of blacks. Black votes provided the margin of victory for Coble. In 1986, Francenia Heizer finished a distant second to Harper among black voters in the first election, and second over all among all voters. However, in the runoff against Papadea, who finished first in the pi'imary, Heizer was the first choice of blacks, but not of whites. Appendix B is a table showing percentages of black turnout and black registration voting for black candidates for at-large seats under Columbia’s 4-2-1 election plan. Appendix C presents a table showing the percentage of black turnout and registration voting for mayor and for white at-large candidates. These two tables were formulated from the statistical evidence presented at trial. As Appendix C indicates, mayoral candidates Finlay and Coble received more absolute black votes, as well as larger percentage of support from black registrants, than did any of the black candidates. Heizer, running in 1990, received more absolute black votes and support from a larger percentage of black registrants than did Harper or Bowman. Nevertheless, plaintiffs would not count white individuals as candidates of choice because, they say, blacks would have preferred to vote for a black candidate. If the whites who finished first among blacks are, however, considered the blacks’ candidates of choice, then blacks’ candidates of choice have not usually been defeated. Indeed, their choices in at-large contests have been elected three out of three times for mayor and four of eight times for the at-large seats. Thus, whether blacks’ candidates of choice have usually been defeated depends upon whether the white candidates count as “candidates of choice.” Unfortunately, a majority of the Supreme Court has yet to offer a definition of “candidates of choice.” In Gingles, however, in a portion of the opinion that did not receive majority support, Justice Brennan indicated that the relevant inquiry concerned whether voters had elected the representative of “their choice.” Brennan further explained that while the choice may often be black, the race of the candidate is immaterial: Thus, as a matter of convenience, we and the District Court may refer to the preferred representative of black voters as the “black candidate” and to the preferred representative of white voters are the “white candidate.” Nonetheless, the fact that race of voter and race of candidate is often correlated in not directly pertinent to a § 2 inquiry. Under § 2 it is the status of the candidate as the chosen representative of a paHicular racial group, not the race of the candidate that is important. 478 U.S. at 68, 106 S.Ct. at 2775. ' Later Justice Brennan noted: “Clearly, only the race of the voter, not the race of the candidate, is relevant to vote dilution analysis.” Id. It is important, however, to recognize that the definition of “candidate of choice” was not the primary basis for a majority of the justices to disagree with this part of the opinion. Rather, the disagreement concerned the significance of the reasons why white voters had failed to support black candidates. Several lower federal courts have followed, if not explicitly adopted, the plurality view. See Sanchez v. Bond, 875 F.2d 1488 (10th Cir.1989), cert. denied, 498 U.S. 937, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990); Williams v. Orange County, 783 F.Supp. 1348,1361-62 (M.D.Fla.), aff'd, 979 F.2d 1504 (11th Cir.1992), cert, denied, — U.S.-, 113 S.Ct. 2998, 125 L.Ed.2d 692 (1993); SCLC v. Evans, 785 F.Supp. 1469 (M.D.Ala.1992); Nipper v. Chiles, 795 F.Supp. 1525 (M.D.Fla. 1992). (The latter two cases involved Section 2 challenges to judicial elections). Additionally, in City of Carrollton Branch of the NAACP v. Stallings, 829 F.2d 1547 (11th Cir.1987), cert, denied, 485 U.S. 936, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988), the court, while not actually faced with the issue of whites as candidates of choice of black voters, nevertheless cited Justice Brennan’s position with approval: “However, what is at least clear from the Court’s opinion, is that racial bloc voting does not depend on the success or defeat of a particular candidate. Under Section 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate that is important.” 829 F.2d at 1557. In this circuit, the only case to raise the issue has been Collins v. City of Norfolk, 883 F.2d 1232 (4th Cir.1989), cert, denied, 498 U.S. 938, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990). In that case, the Fourth Circuit concluded that certain white candidates did not count as candidates of choice of black voters because these candidates were the group’s second and third choices in a vote-for-three situation, where the group’s first choices had been defeated. The court did not reject the notion that whites could be the choice of black voters. Rather, the case stands for the logical proposition that a candidate, white or black, cannot be the choice of black voters if, within the same contest, another candidate was more “preferred” and was defeated. In the present case, the only election involving a loss for blacks’ first choice and a victory for their second choice was the 1986 contest for an at-large seat. Harper was the choice of blacks in the first election, but when he did not make the runoff, blacks supported Heizer. Ironically, under the analysis discussed above, Heizer, who was elected, was not the choice of either group. Under Collins, she was not the choice of black voters, having defeated their first choice, nor was she the choice of white voters, who preferred Papadea. Notably, however, even including Heizer, blacks’ first choices have been elected more often than they have been defeated. Furthermore, the plaintiffs’ use of some statistics in support of their case is suspect. In an effort to demonstrate political cohesion, plaintiffs rely heavily upon statistics showing that a high percentage of African Americans who make it to the polls vote for African American candidates. However, the reliability of plaintiffs’ statistics is questionable for two reasons: (1) the low numbers, relied upon by the plaintiffs, of African Americans that have turned out to vote for the candidates; and (2) the method of combining the bloc vote received by all black candidates in a particular race in order to determine the percentage of political cohesion for the black candidates. Significantly, the Gingles Court observed that political cohesiveness can be demonstrated by showing that “a significant number of minority group members usually vote for the same candidate.” 478 U.S. at 56, 106 S.Ct. at 2769 (emphasis added). Furthermore, a pattern of such voting over a period of time is more probative of political cohesiveness than is a single election. Id. at 57, 2769-70. Therefore, the clear impact of Justice Brennan’s plurality opinion is that political cohesion means that a significant percentage of the minority population is aligned behind a certain political candidate or agenda. The plaintiffs’ statistics showing that in certain races a large percentage of the minority voters who made it to the polls on a given election day voted together for the same candidates is certainly relevant to this inquiry. However, the relevance of this percentage as a gauge of minority cohesion is dependent upon black turnout. In evaluating the statistical evidence presented by the parties on the issue of political cohesiveness, the court is mindful that a “functional” view of the political process is appropriate. The Senate Committee determined that “the question whether the political processes are ‘equally open’ depends upon a searching practical evaluation of the ‘past and present reality.’ ” Gingles, 478 U.S. at 45, 106 S.Ct. at 2764. (quoting S.Rep. No. 417, 97th Cong., 2d Sess. 28, 30 n. 120 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 205, 208. Here, the court cannot ignore the “political reality,” as demonstrated in Appendices B and C, that very few blacks have chosen to vote in at-large contests for the City Council, even when a black has been on the ballot. Consequently, the few blacks who voted in the at-large contests may not accurately reflect the degree to which the black electorate as a whole is politically cohesive. It is particularly appropriate to be wary of relying on black voter behavior in low black turnout elections to determine political cohesiveness when, as is true in Columbia, there is an inverse relationship between the degree of black turnout' and the percentage of blacks voting for the black candidate. The evidence showed that as black turnout increases, black cohesiveness decreases. It is important to keep in mind that the ultimate reason voter cohesion is significant is because it directly bears on the issue of causation. As the Supreme Court noted, “[i]f the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests.” Id. at 51, 106 S.Ct. at 2766. Although the Court provided no further definition, it appears from this comment that the purpose of the cohesiveness requirement is to show that black voters have “distinctive political interests” to be furthered in the electoral body under challenge. If they do not, then there is nothing to be thwarted. The best evidence of such “distinctive political interests” would appear to be the behavior of the group in voting for the offices in question. The ultimate question should be whether the evidence demonstrates that blacks as a whole — not merely the plaintiffs or some segment of the black population — have distinctive political interests for the City of Columbia that they have attempted to further by voting together for candidates to the City Council. In most cases, that determination can be made from examining the behavior of the segment of the black population who chose to participate in the elections at issue. Plaintiffs’ evidence on cohesiveness in city elections under 4-2-1 is limited to three elections and four candidates. In the first election under the new plan, held in 1983, two blacks and four whites sought the two at-large seats. Plaintiffs’ expert concluded that blacks were politically cohesive in this contest because 74% voted for the two black candidates combined. See Appendix A. To say that voters who have split their vote among two or more candidates are “cohesive” is contrary to political reality. One of the black candidates in the 1983 election, Reverend Scott, was supported by only 21.7% of blacks at the polls, which means that 72% of blacks at the polls capable of casting a ballot chose not to cast one for him. Blacks were more united in their support of Modjeska Simkins, in that a slight majority, 52.3%, cast one of their two votes for her; however, almost an equal percentage, 47.7%, of black voters did not support her. This level of support does not compare favorably with support black voters have given black and white candidates in other elections. The relatively light support of Ms. Simkins, a nationally known civil rights leader, was particularly surprising since blacks had two votes to cast in this contest, and only 52% chose to cast one of their votes for her. Defendants’ expert, Dr. Harold Stanley, testified that “cohesiveness” is a relative term. A group is minimally cohesive if 50% of group members support a single candidate and maximally cohesive if 100% do. For purposes of the second prong of Gingles, a group claiming that the election system is depriving it of the benefits of its numbers should be able to demonstrate that the failure to elect a candidate of the group’s choice was not due to a lack of cohesiveness of the group itself. Dr. Stanley demonstrated that had blacks in the polls voted as cohesively for Ms. Simkins as they often did for blacks running for other office, she would have been elected on the first ballot, rather than coming in third. The other two black candidates, Harper in the regular election of 1986 and Bowman in the special election of 1986, received support from a larger percentage of blacks in the polls. But the voters supporting these candidates constituted a very small portion of the black electorate. Nine percent of the active black registrants supported Harper, and a mere 5.6% supported Bowman. When- considered as a share of the eligible black electorate (approximately 26,000 persons), the percentages supporting these candidates drop to practically nothing — 9.0% for Harper and 5.4% for Bowman. This does not appear to be what the Court had in mind in Gingles when it referred to a “significant number of minority group members.” 478 U.S. at 56, 106 S.Ct. at 2769. In light of the demonstrated ability of blacks to turn out, even in city elections, the failure of blacks to participate in these contests must be attributed to lack of enthusiasm for the candidates offering for election. Dr. Stanley testified that had as many blacks turned out for these contests as had voted in 1983, and had the additional blacks voted in the same manner as those who actually participated, both Harper and Bowman would have been elected. Plaintiffs have suggested that Dr. Stanley is merely spinning “gossamer possibilities” by selecting the black turnout rate from one election and combining it with the cohesiveness demonstrated by black voters in another. The court disagrees. The outcomes he hypothesized in regard to all three elections were well within the demonstrated ability of blacks both to turn out and to vote cohesively- Plaintiffs also suggest that black turnout is low in city elections because turnout is lower across the board in city elections; because blacks still suffer the effects of past discrimination and cannot manage to vote; and because blacks have no hope of electing their choices at large and, therefore, chose not to vote at all. The first observation appears to be accurate; voter turnout in city elections is generally lighter for both black and whites than for state-wide general elections. But Dr. Stanley’s calculation that a greater turnout of blacks voting cohesively would have resulted in the elections of Harper and Bowman was based on black turnout in actual city elections. The second observation is simply not supported by the record. Turnout for both blacks and whites varies significantly over time and is most logically related to the candidates offering for election and the issues generated by their campaigns. For example, turnout as a percentage of registration peaked for both blacks and whites in the hotly contested mayoral election of 1990. Moreover, black turnout actually exceeded white turnout in 1983 and 1984, the first elections under 4-2-1. If past discrimination were depressing black turnout, one would expect to see lower participation by blacks in elections closer to that discrimination, rather than in more recent elections. The “discouragement” argument is also hard to accept based on the record presented here. Blacks turned out in record numbers in 1990 to support a mayoral candidate fighting an uphill battle to unseat an incumbent, furthermore, the discouragement argument is particularly implausible in explaining the low turnout for Bowman’s 1986 special-election contest. The plaintiffs’ own evidence shows that special elections have, in other situations, provided good opportunities for the election of black candidates. In two county special elections, black voters significantly “out mobilized” the supporters of white candidates, and as a result elected blacks on both occasions. Bloc Voting by Whites The weight of the evidence does not indicate that a white bloc vote in Columbia will usually defeat the candidates of choice of black voters. Plaintiffs’ evidence regarding polarized voting usually defeating black voter choices boils down to this: elections are racially polarized; three black candidates who ran for city-wide office lost; therefore, blacks cannot be elected at large. This is simply not sufficient to overcome the evidence that the blacks who lost owe their losses as much to blacks’ failure to vote more cohesively or to turn out at all as to failure to achieve white support. To counter the view that a black candidate who mobilized the black vote could be elected at large, the plaintiffs offered only the testimony of Ben and Adelle Adams, which on balance cannot outweigh all the evidence to the contrary. Furthermore, evidence was presented that today in Columbia, a black candidate could win an at-large seat on the Council. In 1978, running as a political newcomer under the prior all-at-large plan, present City Council member E.W. Cromartie was supported by approximately 25% of white voters. Given the present black percentage of the electorate, this level of white support would elect a candidate today, so long as the candidate receives solid black support. Dr. Stanley testified without contradiction that a black candidate need receive only 20 to 25% of the white vote, depending upon black turnout and cohesiveness, to be elected at large in the City. Therefore, conducting a “searching practical evaluation of the past and present reality” involving “an intensely local appraisal of the design and impact” of the election structure and white voter behavior, the court finds that the plaintiffs have failed to carry their burden of proof to show that a bloc voting majority can usually defeat the choices of black voters for the at-large seats. Hence, the court finds that the plaintiffs have failed to prove all of the Gingles preconditions and, therefore, the plaintiffs have failed to prove a violation of Section 2 of the Voting Rights Act. See 478 U.S. at 48-49, 106 S.Ct. at 2765-66. The Totality of the Circumstances Even if plaintiffs had carried their burden of proof on the Gingles preconditions, the court would be required to determine whether proof of these facts, in the context of the totality of the circumstances, indicates that blacks do not have an opportunity equal to that of others in the electorate to elect candidates of their choice and to participate in the political process. In making this inquiry, the court is guided by, but not limited to, the Gingles preconditions and the Senate Report factors. This court must consider all evidence that indicates the extent to which blacks are currently able to participate in the political process and to elect candidates of their choice. A mechanical application of any part of the test is simply at odds with the Supreme Court’s mandate that this court base its decision on past and present political reality. With these principles in mind, the court turns to the remaining factors listed in the Senate Report. 1. Past History of Discrimination Affecting Voting In listing this factor, Congress made clear that it “was concerned not only with present discrimination, but with the vestiges of [past] discrimination which may interact with present political structures to perpetuate a historical lack of access to the political system.” Westwego Citizens for Better Gov’t v. Westwego, 872 F.2d 1201, 1211-12 (5th Cir.1989). In this case, no credible evidence of present day discrimination was presented. There was, however, an abundance of uncontroverted testimony about South Carolina’s past history of discrimination affecting voting, and the plaintiffs have unquestionably prevailed as to this part of the first Senate Report factor. Nevertheless, the court finds that there are no vestiges of past discrimination that significantly interact with present political structures to deny access to the political system. As noted by Judge Chapman, in Columbia, as in most cities in the southeastern part of the United States, there is a long history of de facto and de jure racial discrimination. Devices employed by the state to disfranchise and discourage black voters included a poll tax, a literacy test, a grandfather provision for whites, and prolonged attempts to allow only whites to vote in the Democratic primary. In addition like most of the southern states, South Carolina also sought to enact barriers to the political rights advanced by the civil rights movement of the 1950’s and 60’s. The enactments included laws to maintain segregation in all facets of public education, places of public accommodations, and health care facilities. These discriminatory laws have been widely documented in numerous reported decisions in this district. The defendants did not challenge the plaintiffs’ assertion that South Carolina — and its capital city — have a past history of discrimination, particularly in regard to voting. Most of these unfortunate events in South Carolina’s history predate 1975. For example, the white primary was in effect until 1947. In addition, a literacy test was required for registration until it was banned by the 1965 Voting Rights Act. Most of the City’s population is too young to have been effected by the white primary law or literacy tests. Significantly, plaintiffs have not identified any black citizens who today feel unable to participate in the political process because of the past existence of these requirements. Indeed, in Finlay, Judge Chapman found “[t]he election process of the City Council in Columbia is the most open and accessible that can be imagined.” Although the Court of Appeals recognized “some ... hyperbole” in Judge Chapman’s finding, the court nevertheless agreed that there were no legal or practical impediments to black voters or candidates in Columbia. 664 F.2d at 922. This court reaffirms that finding and, moreover, finds that nothing in the record of the present case indicates that the process has become “less open” since Finlay was decided. Indeed, registration has been made even easier by the adoption of “mail-in” registration. Black presence is evident at every stage of the political process from successful candidates to poll workers. Thus, although there is a well-documented history of racial discrimination affecting voting in South Carolina, this discrimination has less of an impact on voting behavior by African Americans today than it had when Judge Chapman rendered his decision in 1980. 2. The Extent to Which Racially Polarized Voting Exists This factor is subsumed in the second and third Gingles preconditions: (1) a politically cohesive minority, which does not exist in Columbia with respect to the seats challenged in this lawsuit; and (2) a bloc voting majority that usually defeats the candidates of choice of the group. The court finds