Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW PAUL, Chief Judge. Gingles Jinple The Supreme Court’s edict on vote dilution Attempted to offer a legal solution To district courts struggling to try the cases Arising from friction between the races. But confusion reigned Supreme After reading Brennan’s theme. Are results the only key ? Do statistics open sesame? Do the experts’ opinions control the query ? Do we listen to history until we become weary? Does it give “effect” to Congress’ “intent” To disregard “intent” to all extent? Is the race of the candidate relevant? Is success at the polls significant? Does racial bloc voting rule the day? Does “totality of circumstances” still have a say? When Solomon went en banc, we said a prayer, That the Eleventh Circuit would clear the air, But alas, alas, they went five-five All we got was some more jive. The questions remain to this good day For the courts to unravel through much legal fray. The attempt to decipher the Gingles test is tedious, exhausting, and trying, at best! Jeana Peeler Hosch, Law clerk to District Judge Robert Propst Hard eases make bad law. Sometimes, as is the case here, hard eases make no law at all. On appeal, the Eleventh Circuit was evenly divided in its interpretation of Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), and section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. Solomon v. Liberty County, 899 F.2d 1012 (11th Cir.1990) (per curiam) (en banc). Specifically, the Eleventh Circuit expressed no controlling opinion on whether a plaintiff can make out a section 2 challenge simply by satisfying the three Gingles factors, see Solomon, 899 F.2d at 1021 (Kravitch, J., specially concurring), or if a defendant can defeat a section 2 challenge by raising a lack of racial bias defense after a plaintiff has demonstrated these Gingles factors, see Solomon, 899 F.2d at 1033 (Tjoflat, C.J., specially concurring). Instead, the Solomon court left it to this Court on remand to give “due consideration to the views expressed in Chief Judge Tjoflat’s and Judge Kravitch’s specially concurring opinions.” 899 F.2d at 1013. The Court now proceeds to fulfill this • mandate, mindful that in so doing, it must speak to an issue that the Eleventh Circuit has been unsuccessful in resolving on several occasions during the last decade. BACKGROUND: In 1985, four black residents and registered voters in Liberty County, Florida, began a journey that has slowly taken them through the judicial thicket of the Voting Rights Act. They sought, on behalf of themselves and the certified class of all black residents of Liberty County, Florida, injunc-tive and declaratory relief against at-large countywide elections for members of the Liberty County School Board and the Liberty County Commission. Plaintiffs alleged that the at-large election of members of the Liberty County Commission unlawfully diluted black voting strength in violation of section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Similarly, Plaintiffs alleged that the at-large election of members of the Liberty County School Board unlawfully diluted black voting strength in violation of section 2 of the Voting Rights Act, as well as the Fourteenth and Fifteenth Amendments to the United States Constitution. In March, 1986, the Court conducted a five day bench trial in this matter. See Doc. 49, Mins.; Does. 77-82, Tr. (hereinafter “1986 Tr.”). In May, 1987, the Court issued its findings. The Court held that Plaintiffs had failed to demonstrate unlawful dilution in violation of either section 2 or the Constitution, and entered judgments as to all claims in favor of Defendants. See Doc. 67, Findings of Fact and Conclusions of Law (hereinafter “Findings”). On appeal, a panel of the Eleventh Circuit initially vacated the judgments, and remanded with instructions to make further findings of fact. Solomon v. Liberty County, Florida, 865 F.2d 1566 (11th Cir.1988), vacated, 873 F.2d 248 (11th Cir.1989). In 1989, the Eleventh Circuit reheard this ease en banc. In 1990, the en banc panel issued the per curiam mandate which is presently before the Court, and is the subject of this order. See Solomon, 899 F.2d at 1013. Further proceedings on remand were stayed until the Supreme Court ruled on Defendants’ petition for writ of certiorari. See Doc. 98. In January, 1991, the Supreme Court denied Defendants’ petition. Liberty County v. Solomon, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991). Defendants then jointly moved to re-open the case for the submission of additional evidence. Doc. 107. This motion was granted, and the parties were given 45 days within which to conduct discovery. See Doc. 121. In October, 1991, Defendants filed motions for summary judgment [Docs. 122 & 123], to decertify the plaintiff class, and to amend the pleadings to conform to the evidence [Docs. 124 & 125]. In December, 1991, the Court held a one half-day retrial to take the parties’ supplemental evidence. See Doe. 130, Mins.; Doc. 152, TV. (hereinafter “1991 TV.”). In November, 1993, after hearing oral arguments on all of the pending motions [see Doc. 140], the Court granted the motions to decertify and to amend, and denied the motions for summary judgment. See Doc. 141. There was no further activity in this case until October, 1995, when Plaintiffs filed a motion requesting that the Court enter final judgment. Doc. 144. However, in the Plaintiffs’ certificate of conference pursuant to Local Rule 6(B), they indicated that counsel for Defendant Liberty County felt that their motion should be kept in abeyance until the Supreme Court’s pending resolution of two Voting Rights Act cases, Shaw v. Hunt and Bush v. Vera. See Doc. 143. Consequently, the Court took no additional action until September, 1996, after the Supreme Court issued its rulings in Shaw v. Hunt, — U.S. -, 116 S.Ct. 1894,135 L.Ed.2d 207 (1996), and Bush v. Vera, — U.S. -, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996). At that time, the Court ordered Defendants to file a responsive memorandum to Plaintiffs’ motion, providing Plaintiffs with an adequate opportunity to file a reply brief. See Doc. 146. The parties responded by filing supplemental memoranda and new proposed findings. See Docs. 147, 149-151. It has been said that justice delayed is justice denied. Nevertheless, the Court believes that two sets of circumstances which have taken place since this case was remanded by the Eleventh Circuit will now offer the parties the sense of justice to which they are clearly entitled. First, although there is still no consensus on the proper application of the Gingles preconditions and totality of the circumstances test, intervening case law has greatly clarified the proper analysis under section 2 and has helped provide a path — albeit a rocky one — upon which the Court may venture to get this case out of the judicial thicket. With the benefit of these decisions, the Court hopes that the course which it now plots will get the parties, both Plaintiffs and Defendants, to a destination that any appellate review will deem to be proper in view of the relevant facts and law. Second, developments in Liberty County since the 1986 trial have made this case more susceptible to final resolution. Results of a number of intervening elections, not to mention the 1990 census, are of particular import. Twelve years after the Plaintiffs entered a federal courthouse in Tallahassee seeking relief, the Court can only hope that its due consideration to the divided Circuit Court’s opinions, see Solomon, 899 F.2d at 1013, will provide them with some form of relief — even if it is limited solely to the absence of further proceedings in this cause. DISCUSSION: This case presents a number of legal and factual complexities beyond those which the Court has found to be common in section 2 lawsuits. In fact, the Court is in the somewhat unique, and unenviable, position on remand of determining the governing legal standard for evaluating Plaintiffs’ claims. The Court’s task is further complicated (or simplified, depending upon one’s perspective) by the Eleventh Circuit’s holding that the three Gingles factors have been established in this case as a matter of law. See Solomon, 899 F.2d at 1013; id. at 1037 (Tjoflat, C.J., specially concurring); id. at 1017 (Kravitch, J., specially concurring). Consequently, it will be necessary to tailor the analysis accordingly. Part I of this opinion squarely addresses the issue which the Eleventh Circuit has been unable to resolve. It begins with a discussion of section 2, including an examination of the 1982 amendment to the Voting Rights Act, to set the context for the dialogue that followed between Judges Tjoflat and Kravitch in Solomon. This dialogue is then briefly set out, both as it appeared in Solomon, and as it resurfaced in Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995). The dialogue is next examined in light of recent Supreme Court jurisprudence, other interpretive case law, and the legislative history of the 1982 amendment. Finally, after coalescing all of this material, the Court concludes this section by setting forth a model framework for section 2 cases which it believes is most consistent with congressional intent. Part II briefly discusses the law of the case and mandate rules. The parties, Defendants in particular, have requested that the Court reexamine certain matters which the Eleventh Circuit has already concluded have been established as a matter of law. Thus, this discussion is required to describe the extent to which the Court may engage in such an inquiry. Part III fulfills the Eleventh Circuit’s mandate by making appropriate findings of fact and conclusions of law in light of the framework set forth in Section I. The matters examined by the Court encompass evidence presented at the initial trial in 1986 and the retrial in late 1991, in addition to all other relevant materials contained in the record. Part I. Analytical Framework: The Senate Report accompanying the 1982 amendment to Title 42, United States Code, Section 1973, states that “[t]he ‘results’ test to be codified in section 2 is a well defined standard.” See S.Rep. No. 417, 97th Cong., 2d Sess. 16 (1982), reprinted in 1982 U.S.C.C.A.N. at 193 (hereinafter “S.Rep.”). However, this statement is belied by the record of this, and other, section 2 eases. The inability of the Eleventh Circuit to speak with clarity on the appropriate standard for vote dilution cases, even with the benefit of the Senate Report accompanying the 1982 amendment, is understandable. As Judge Tjoflat aptly recognized in Solomon, “[b]e-eause the amendment reflects a compromise between two very different views in the Congress that passed the 1982 amendment to section 2, much of that section’s language seems inherently inconsistent and, at times, virtually meaningless.” 899 F.2d at 1022 (Tjoflat, C.J., specially concurring). The discussion which follows will attempt to reconcile these inconsistencies, and set forth an appropriate model of analysis for section 2 claims. A. Section 2 Of The Voting Rights Act Of 1965: In 1965, Congress passed the Voting Rights Act, in order “to rid the country of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 812, 15 L.Ed.2d 769 (1966). See also H.R.Rep. No. 439, 89th Cong., 1st Sess. 23 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2440 (Act intended to redress “the systematic exclusion of Negroes from the polls that characterizes certain regions of this Nation.”). Specifically, “[t]he Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens,” Allen v. State Bd. of Elections, 393 U.S. 544, 556, 89 S.Ct. 817, 826, 22 L.Ed.2d 1 (1969), by ensuring that no citizen’s right to vote shall “be denied or abridged ... on account of race, color, or previous condition of servitude.” U.S. Const, amend. 15. As originally enacted, section 2 provided: “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” Pub.L. No. 89-110, 79 Stat. at 437 (codified as amended at 42 U.S.C. § 1973(a)). At the time it was adopted, section 2 was widely viewed as having the same scope as the Fifteenth Amendment, which used similar language. Case law interpreting vote dilution claims supported the proposition that a plaintiff could proceed under either the so-called “intent” test, or the “results” test, the standards used for discrimination claims brought under the Constitution. See, e.g., Zimmer v. McKeithen, 485 F.2d 1297, 1304 (5th Cir.1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). Thus, under the prevailing interpretation of the Fourteenth and Fifteenth Amendments, a violation of section 2 could be established by showing either a discriminatory purpose or discriminatory results. See S.Rep. at 17-19, 1982 U.S.C.C.A.N. at 194-96. 1. The “Results Test”: In Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), the Supreme Court laid the framework for what was to become the “results test.” Whitcomb involved a Fourteenth Amendment challenge by black voters to a multi-member districting plan. The Whitcomb plaintiffs did not provide any evidence of discriminatory intent, but instead attempted to prove that the challenged plan resulted in a dilution of their ability to have equal access to the political process. See id. at 144,149, 91 S.Ct. at 1869,. 1872. The lower court had sustained the plaintiffs’ challenge, finding that black voters in what the court termed a “ghetto area” were consistently underrepresented compared to their proportion of the relevant population. The Whitcomb court reversed, holding that lack of proportionality did not prove a constitutional violation absent evidence that the plaintiffs had “less opportunity ... to participate in the political processes and to elect legislators of their choice.” Id. at 149, 91 S.Ct. at 1872. Rather than showing built-in bias which was nothing more than “a mere euphemism for political defeat at the polls,” id. at 153, 91 S.Ct. at 1874, the Court concluded that vote dilution under the Fourteenth Amendment required proof of objective factors, such as inability to register or vote, to choose a political party or participate in it, or the lack of access to candidate-slating processes used by political parties. Id. at 149-50, 91 S.Ct. at 1872. The Supreme Court further expounded on Whitcomb in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), a Fourteenth Amendment challenge by black and hispanic voters to two county multi-member districts in Texas. The White court reaffirmed Whitcomb’s prohibition on evaluating a constitutional claim solely on the basis of lack of proportionality, stating: To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Id. at 765-66, 93 S.Ct. at 2339. The Court also approved of a number of objective factors relied upon by the district court in its holding that vote dilution had been established: the history of official racial discrimination in the state and locality; majority vote requirements for party primaries, as well as “place” rules limiting candidates to a specified “place” on the ballot, which were not improper or invidious but “enhanced the opportunity for racial discrimination”; the use of candidate-slating, which further minimized the political influence of the minority group; the past political success of minority groups; the lack of responsiveness of a candidate slating group or other political group to the minority community; the use of overt racial tactics to defeat the candidates of choice of the minority community; present socio-eco-nomic disparities and cultural or language barriers that depressed the political participation of the minority group; and the use of discriminatory devices such as poll taxes and other restrictive voter registration procedures. Id. at 766-69, 93 S.Ct. at 2339-41. In addition, the Court noted that the district court had properly conducted its evaluation of the foregoing factors under the “totality of the circumstances.” Id. at 769, 93 S.Ct. at 2341. Therefore, the White court affirmed the district court’s conclusion that the plaintiffs had been “effectively removed” from the political processes of the two challenged districts “in violation of all the Whitcomb standards.” Id. In City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Supreme Court repudiated the use of the results test in section 2 cases. Specifically, the Court made two important holdings. First, the Bolden majority ruled that section 2 was to be interpreted in the same manner as the Fifteenth Amendment. Second, the Bolden court found that “racially discriminatory motivation [the intent test] is a necessary ingredient of a Fifteenth Amendment violation.” Id. at 60-62,100 S.Ct. at 1496-97. Consequently, the Bolden court made it clear that it was the intent test, and not the results test, which was to be applied in section 2 cases. 2. 1982 Amendment To Section 2: In 1982, Congress responded to Bolden’s adoption of the intent test by amending section 2. Congress perceived the intent test to be “inappropriate as the exclusive standard for establishing a violation of section 2” for several reasons. S.Rep. at 36, 1982 U.S.C.C.A.N. at 214. First, the Senate Report noted that “the test asks the wrong question.” Id. Rather than concentrating on trying to prove discriminatory motivations which existed decades before a particular voting practice, procedure, or structure was adopted or in place, the amendment emphasized that the appropriate inquiry “is whether minorities have equal access to the process of electing their representatives.” Id. Second, the Report indicated that the intent test was “unnecessarily divisive” because it raised charges of racism against individual officials or the community as a whole. Id. Third, and perhaps most importantly, the intent test made it “inordinately difficult” for section 2 plaintiffs to prove their cases. As a result, Congress renounced the intent test set forth in Bolden and modified section 2 to read: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1373b(f)(2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by 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 then-proportion in the population. Pub.L. No. 97-205, § 3, 96 Stat. 134 (codified as 42 U.S.C. § 1973 (1982)) (emphasis in original). Thus, the 1982 amendment had three principle effects. First, it restored “the legal standards, based on the controlling Supreme Court precedents, which applied in voting discrimination claims prior to the litigation involved in Mobile v. Bolden,” that is, the results test. S.Rep. at 2, 1982 U.S.C.C.A.N. at 179. Second, it added “a new subsection to section 2 which delineates the legal standards under the results test by codifying the leading pre-Bolden vote dilution case, White v. Register [Regester].” Id. Finally, it also included the “proportional representation clause” or Dole Amendment to section 2, which “states that the section does not establish a right to proportional representation.” Id. As a result of the 1982 amendment, a section 2 plaintiff was provided with the opportunity to prove discriminatory intent, or, alternatively, “that the challenged system or practice, in the context of all the circumstances in the jurisdiction in question, results in minorities being denied equal access to the political process.” Id. at 27, 1982 U.S.C.C.A.N. at 205. When a plaintiff chooses to proceed under the results test, Congress made it clear that the reviewing court must examine the challenged structure or practice “on the basis of objective factors, rather than making a determination about the motivations which lay behind its adoption or maintenance.” Id. Congress derived from White and Zimmer the typical factors which it considered to be relevant to this inquiry: 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 areas such 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. S.Rep. at 28-29, 1982 U.S.C.C.A.N. at 206-07. The Report further states that certain additional factors are relevant in some cases: 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. 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. While these enumerated factors will often be the most relevant ones, in some cases other factors will also be indicative of the alleged dilution. Id. at 29, 1982 U.S.C.C.A.N. at 207. The factors are not to be used in isolation, nor as a “mechanical ‘point counting’ device,” but should be examined in a “searching practical evaluation” [Id. at 30, 1982 U.S.C.C.A.N. at 208] of the totality of the circumstances “to determine whether the voting strength of minority voters is ... minimized or canceled out.” Id. at 29 n. 118, 1982 U.S.C.C.A.N. at 207 n. 118. 3. Thornburg v. Gingles: In 1986, the Supreme Court addressed for the first time the impact of the 1982 amendment on section 2 cases. In Gingles, the plaintiffs were black registered voters in North Carolina who challenged one single-member and six multi-member state legislative districts. The plaintiffs alleged that their ability to elect representatives of their choice in the districts was impaired in violation of section 2 and the Fourteenth and Fifteenth Amendments. 478 U.S. at 34-35, 106 S.Ct. at 2758. The district court applied the “totality of the circumstances” test to the plaintiffs’ section 2 claims, and found, primarily on the basis óf the Senate factors, that the districting scheme resulted in unlawful dilution of black citizens’ votes in all of the challenged districts. Id. at 37-38, 106 S.Ct. at 2759. On appeal, the Supreme Court affirmed with respect to all but one of the challenged districts, holding that the district court had otherwise engaged in the proper legal inquiry. Id. at 42, 61, 80, 106 S.Ct. at 2762, 2772, 2781-82. Justice Brennan, joined by four justices, wrote the plurality opinion which set out the relevant law. After discussing the legislative history behind the amendment to section 2 [see id. at 43-46, 106 S.Ct. at 2762-64], the Court described the cornerstone for a vote dilution claim under section 2: “that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Id. at 47, 106 S.Ct. at 2764. However, the Court cautioned that multi-member and at-large voting schemes alone did not establish a section 2 claim. Id. at 48, 106 S.Ct. at 2765. Instead, the Court ruled that a section 2 plaintiff must first establish certain “necessary preconditions” before proving a vote dilution claim: (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the minority’s preferred candidate is usually defeated by white majority bloc voting. Id. at 50-51, 106 S.Ct. at 2766. The Gingles court indicated that while “many or all” of the Senate factors “may be relevant” to a vote dilution claim, unless the three threshold factors (compactness, cohesiveness, and majority bloc voting) were also demonstrated, “the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice.” Id. at 48, 106 S.Ct. at 2765. The “functional” view of the political process established by section 2 indicates that the two most important Senate factors for challenges to multi-member districts are the electoral success of minority group members in the jurisdiction and racially polarized voting. Id. at 48 n. 15, 106 S.Ct. at 2765 n. 15 (quoting S.Rep. at 28-29, 1982 U.S.C.C.A.N. at 206). The Gingles court addressed these factors at great length. Appellants and the United States had argued that electoral success from a single election which resulted in proportional, or near-proportional, representation precluded a section 2 violation as a matter of law. Gingles, 478 U.S. at 74-75, 106 S.Ct. at 2778-79. The Gingles court flatly rejected this argument, observing that the Senate Report itself states that minority electoral success does not automatically foreclose a showing of vote dilution. Id. at 75, 106 S.Ct. at 2779 (quoting S.Rep. at 29-30, 1982 U.S.C.C.A.N. at 206-07). In addition, in considering such success, the Court said that a district court could consider the circumstances surrounding the electoral victories, including whether “unusual” political support by white leaders had occurred as a response to section 2 litigation, or to otherwise circumvent a possible judicial remedy. Gingles, 478 U.S. at 75-76, 106 S.Ct. at 2779-80. However, the Court also found that the district court had improperly ignored the significance of sustained success by black voters in one of the challenged multi-member districts. In that particular instance the Gingles court reversed the district court, holding that “persistent proportional representation” was “inconsistent” with the plaintiffs’ claim that they did not enjoy an equal opportunity to elect the representatives of their choice. Id. at 77, 106 S.Ct. at 2780 (Brennan, J., joined by White, J.); Id. at 102-05, 106 S.Ct. at 2793-94 (O’Connor, J., joined by Burger, C.J., Powell, J., and Rehnquist, J.). The Gingles plurality also made several important rulings designed to assist courts in determining whether racially polarized voting exists in a challenged district. The Court approved of the methodology employed by the district court to analyze the existence of racial polarization: extreme case analysis and bivariate ecological regression. See id. at 52-54, 61, 106 S.Ct. at 2767-68, 2772. However, the Court also noted that “the degree of bloc voting which constitutes the threshold of legal significance will vary from district to district” depending upon the presence of such factors as the nature of the allegedly dilutive electoral mechanism, majority vote requirements, prohibitions on bullet voting, designated posts, the percentage of registered voters who are members of the minority group, and the number of seats open and candidates in the field. Id. at 55-57, 106 S.Ct. at 2769 (internal citations omitted). In addition, the Court found that patterns of bloc voting extending over a period of time would be more probative to a vote dilution claim than the results of a single election. Id. at 57, 106 S.Ct. at 2769-70. The Court cautioned that any “inquiry into the existence of vote dilution caused by submergence in a multimember district” must be “district specific.” Id. at 59 n. 28, 106 S.Ct. at 2771 n. 28. What the Gingles court was unable to resolve is of perhaps the greatest significance to the case sub judice. The justices were sharply divided over the types- of evidence .which could be presented to demonstrate a section 2 claim. The appellants had argued that “the term ‘racially polarized voting’ must, as a matter of law, refer to voting patterns for which the principal cause is race.” Id. at 61, 106 S.Ct. at 2772. Consequently, the appellants believed that “only multiple regression analysis, which can take account of other variables which might also explain voters’ choices, such as ‘party affiliation, age, religion, income, incumbency, education, campaign expenditures, media úse measured by cost, ... name, identification, or distance that a candidate lived from a particular precinct,’ can prove that race was the primary determinant of voter behavior.” Id. at 61-62,106 S.Ct. at 2772. Justice Brennan, joined by Justices Marshall, Blaekmun, and Stevens, wrote that racially polarized voting required proof of neither causation nor intent, but instead “refers to a situation where different races ... vote in blocs for different candidates.” Id. at 62, 106 S.Ct. at 2772 (Brennan, J., plurality opinion). The Justices reasoned that the appellants’ theory “would thwart the goals Congress sought to achieve when it amended § 2 and would prevent courts from performing the ‘functional’ analysis of the political process and the ‘searching practical evaluation of the past and present reality’ mandated by the Senate Report.” Id. at 62-63, 106 S.Ct. at 2772 (Brennan, J., plurality opinion) (quoting S.Rep. at 30, 1982 U.S.C.C.A.N. at 208). According to Justice Brennan, causation was irrelevant because “[i]t is the difference between the choices made by blacks and whites — not the reasons for that difference— that results in blacks having less opportunity than whites to elect their preferred representatives.” Gingles, 478 U.S. at 63, 106 S.Ct. at 2773 (Brennan, J., plurality opinion). The four justices also disapproved of the appellants’ argument that section 2 plaintiffs be required to show “voting patterns that are determined primarily by the voter’s race, rather than by the voter’s other socioeconomic characteristics.” Id. at 64-67, 106 S.Ct. at 2773-75 (Brennan, J., plurality opinion). In addition, they rejected the appellants’ assertion that the race of the candidate was relevant to the racial bloc voting analysis. Instead, they found that only the race of the voter could be considered in assessing racially polarized voting patterns. Id. at 67-70, 106 S.Ct. at 2775-76 (Brennan, J., plurality opinion). The four justices also emphatically spoke out against requiring an inquiry into the racial motivations of the majority bloc to determine whether racially polarized voting existed. Justice Brennan emphasized that “[appellants’ suggestion that the discriminatory intent of individual white voters must be proved in order to make out a § 2 claim must fail for the very reasons Congress rejected the intent test with respect to governmental bodies.” Id. at 71, 106 S.Ct. at 2777 (Brennan, J., plurality opinion). In discussing the use of the phrase “on account of race” in section 2, the justices opined that [t]he Senate Report rejécted the argument that the words “on account of race” ... create any requirement of purposeful discrimination. “[I]t is patently [clear] that Congress has used the words ‘on account of race or color’ in the Act to mean “with respect to’ race or color, and not to connote any required purpose of racial discrimination.’’ Id. at 71 n. 34, 106 S.Ct. at 2777 n. 34 (Brennan, J., plurality opinion) (quoting S.Rep. at 27-28, n. 109, 1982 U.S.C.C.A.N. at 205) (emphasis added). Justice Brennan further observed that the Bolden intent test had been rejected because it required raising charges of racism by individual officials or entire communities; conversely, under the new intent test advocated by the appellants, “plaintiffs would be required to prove that most of the white community is racist in order to obtain judicial relief. It is difficult to imagine a more racially divisive requirement.” Gingles, 478 U.S. at 30, 106 S.Ct. at 2777 (Brennan, J., plurality opinion). Moreover, the four justices were concerned that the test advocated by the appellants would be “equally, if not more, burdensome” than the Bolden intent test, imposing prohibitive costs and requiring use of a multiple regression equation that “would be all but impossible for a social scientist to operationalize.” Id. at 72-73, 106 S.Ct. at 2777-78 (Brennan, J., plurality opinion). Finally, Justice Brennan concluded that “[fjocusing on the discriminatory intent of the voters, rather than the behavior of the voters” asks the wrong question because “[a]ll that matters under § 2 and under a functional theory of vote dilution is voter behavior, not its explanations.” Id. at 73,106 S.Ct. at 2778 (Brennan, J., plurality opinion). Justice O’Connor, joined by three other Justices, concurred in the judgment, but took strong exception to both the test adopted by a majority of the Court, as well as Justice Brennan’s plurality opinion on the type of evidence which could be used to prove racial polarization. Justice O’Connor first expressed concern that the Court’s threshold test would effectively create the “right to usual, roughly proportional representation on the part of sizable, compact, cohesive minority groups,” with “no reference to most of the ‘Zimmer factors’ that were developed by the Fifth Circuit to implement White’s results test and which were highlighted in the Senate Report.” Id. at 91-92, 106 S.Ct. at 2787-88 (O’Connor, J., concurring in the judgment). In its stead, Justice O’Connor would follow the approach in Whitcomb and White, requiring that a court “consider all relevant factors bearing on whether the minority group has ‘less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’ ” Id. at 99, 106 S.Ct. at 2791 (O’Connor, J., concurring in the judgment) (quoting 42 U.S.C. § 1973) (emphasis in original). Responding to Justice Brennan’s plurality opinion on the evidence needed to sustain a showing of racial polarization, Justice O’Con-nor wrote: Insofar as statistical evidence of divergent racial voting patterns is admitted solely to establish that the minority group is politically cohesive and to assess its prospects for electoral success, I agree that defendants cannot rebut this showing by offering evidence that divergent racial voting patterns may be explained in part by causes other than race, such as an underlying divergence in the interests of minority and white voters. I do not agree, however, that such evidence can never affect the overall dilution inquiry. Evidence that a candidate preferred by the minority group in a particular election was rejected by white voters for reasons other than those which made that candidate the preferred choice of the minority group would seem clearly relevant in answering the question whether bloc voting by white voters will consistently defeat minority candidates. Such evidence would suggest that another candidate, equally preferred by the minority group, might be able to attract greater white support in future elections.... The overall vote dilution inquiry neither requires nor permits an arbitrary rule against consideration of all evidence concerning voting preferences other than statistical evidence of racial voting patterns. Such a rule would give no effect whatever to the Senate Report’s repeated emphasis on “intensive racial politics,” on “racial political considerations,” and on whether “racial politics ... dominate the electoral process” as one aspect of the “racial bloc voting” that Congress deemed relevant to showing a § 2 violation. Id. at 100, 106 S.Ct. at 2792 (O’Connor, J., concurring in the judgment) (quoting S.Rep. at 33-34, 1982 U.S.C.C.A.N. at 211-12). In addition, Justice O’Connor stated that evidence of consistent and virtually proportional minority electoral success also should be entered into the vote dilution calculus. She reasoned that while such evidence would not always bar a section 2 claim as a matter of law, it “is entitled to great weight in evaluating whether a challenged electoral mechanism has, on the totality of the circumstances, operated to deny black voters an equal opportunity to participate in.the political process and to elect representatives of their choice.” Gingles, 478 U.S. at 104, 106 S.Ct. at 2794 (O’Connor, J., concurring in the judgment). Justice O’Connor concluded by opining that any evaluation of vote dilution required “consideration of the minority group’s access to the political processes generally, not solely consideration of the chances that its preferred candidates will actually be elected.” Id. at 105, 106 S.Ct. at 2794-95 (O’Connor, J., concurring in the judgment). As the foregoing discussion makes clear, while Gingles clarified many of the standards to be applied to section 2 vote dilution claims, it also left unresolved a large number of important evidentiary issues. 4. Johnson v. De Grandy: In Johnson v. De Grandy, 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994), the Supreme Court had occasion to revisit the analytical framework for section 2 claims established by the Court in Gingles. De Gran-dy involved a section 2 challenge brought by hispanic and black voters to a state legislative districting plan in Florida. The De Grandy plaintiffs claimed that the plan diluted minority voting strength by not drawing more single-member state House and Senate districts where minority groups formed a majority of the voting population. Id. at 1000-1003, 114 S.Ct. at 2652. The district court agreed in part with the plaintiffs, finding that the plan’s provisions for state House districts violated section 2 because additional reasonably compact minority districts could be drawn. Conversely, the district court found that the state Senate districts did not violate section 2 because an additional majority-hispanic district could only be drawn at the expense of black voters in the area. Id. at 1000-1004, 114 S.Ct. at 2652-53. On appeal, the Supreme Court affirmed the district court’s holding with respect to the state Senate districts, but reversed as to the state House districts. Id. at 1023-24, 114 S.Ct. at 2663. In an opinion written by Justice Souter, the De Grandy court outlined the requirements for establishing a vote dilution claim under section 2. As an initial matter, the Court reaffirmed that the three Gingles factors, compactness, eohesiveness, and majority bloc voting, were ‘“necessary preconditions’ for establishing vote dilution by use of a multimember district.” De Grandy, 512 U.S. at 1011, 114 S.Ct. at 2657 (quoting Gingles, 478 U.S. at 50, 106 S.Ct. at 2766). However, the Court also indicated that proof of the Gingles factors was not necessarily sufficient to establish liability under section 2: But if Gingles so clearly identified the three as generally necessary to prove a § 2 claim, it just as clearly declined to hold them sufficient in combination, either in the sense that a court’s examination of relevant circumstances was complete once the three factors were found to exist, or in the sense that the three in combination necessarily and in all circumstances demonstrated dilution. This was true not only because bloc voting was a matter of degree, with a variable legal significance depending on other facts, but also because the ultimate conclusions about equality or inequality of opportunity were intended by Congress to be judgments resting on comprehensive, not limited, canvassing of relevant facts. Lack of electoral success is evidence of vote dilution, but courts must also examine other evidence in the totality of the circumstances, including the extent of the opportunities minority voters enjoy to participate in the political processes. To be sure, some § 2 plaintiffs may have easy cases, but although lack of political opportunity may be readily imagined and unsurprising when demonstrated under circumstances that include the three essential Gingles factors, that conclusion must still be addressed explicitly, and without isolating any other arguably relevant facts from the act of judgment. De Grandy, 512 U.S. at 1011, 114 S.Ct. at 2657 (internal citations omitted). As the Court further noted, the ultimate focus of an inquiry into a section 2 vote dilution claim is whether, under the totality of the circumstances, the challenged electoral scheme denies minority voters “equal political opportunity.” Id. at 1013, 114 S.Ct. at 2658. The De Grandy court also introduced a new factor to be considered under the totality of the circumstances: proportionality. According to the Court, proportionality is the relationship between “the number of majority-minority voting districts to minority members’ share of the relevant population.” Id. at 1014 n. 11, 114 S.Ct. at 2658 n. 11; id. at 1025-26, 114 S.Ct. at 2664 (O’Connor, J., concurring). The Court held that “[wjhile such proportionality is not dispositive in a challenge to single-member districting, it is a relevant fact in the totality of the circumstances to be analyzed” when determining equality of political opportunity. De Grandy, 512 U.S. at 998-1000, 114 S.Ct. at 2651; id. at 1025-26, 114 S.Ct. at 2664 (O’Connor, J., concurring); id. at 1026-28, 114 S.Ct. at 2665 (Kennedy, J., concurring in part and in the judgment). In sum, De Grandy further illuminated the section 2 analysis set forth in Gingles. De Grandy held that even with the establishment of compactness, cohesiveness, and majority bloc voting, a district court must still review all relevant facts — including evidence pertaining to the Senate factors and proportionality. If the totality of the circumstances demonstrates that the minority group has equal opportunity to participate in the political process, then there can be no liability under section 2. B. The Eleventh Circuit’s Interpretation Of Section 2: The reemergence of the results test as an appropriate framework for evaluating claims of unlawful vote dilution, set into motion a dialogue which has effectively divided the Eleventh Circuit. In Solomon, the Eleventh Circuit split over two principal issues: first, the legal effect of establishing the three Gin-gles factors; and second, the role, if any, that racial bias in the community has in the examination of a section 2 claim under the totality of the circumstances. In Nipper, the circuit judges sharpened their focus on the second question. This section will briefly summarize the dialogue between the judges. 1. The dialogue begins in Solomon: Review of this cause by the Eleventh Circuit resulted in an en banc panel unanimously concluding that the Court had applied the wrong legal standard when the Court entered judgment for defendants. The Eleventh Circuit found that the plaintiffs had satisfied the three Gingles factors. However, the judges remained “divided on the legal effect of proving those factors.” Solomon, 899 F.2d at 1013. Judge Kravitch, writing a specially concurring opinion in which Judges Johnson, Hatchett, Anderson, and Clark joined, found that while “a district court may consider the totality of the circumstances, those circumstances must be examined for the light they shed on the existence of the three core Gin-gles factors.” As a result, Judge Kravitch concluded that proof of the Gingles factors was “both necessary and, in this case, sufficient for a section 2 vote dilution claim.” Id. at 1017 (Kravitch, J., specially concurring). See also id. at 1016 n. 3 (Kravitch, J., specially concurring) (“While Gingles made clear that proof of the three core factors can be sufficient to establish a § 2 vote dilution claim, plaintiffs in this case also adduced strong evidence establishing the other supportive factors.”); id. at 1021 (Kravitch, J., specially concurring) (“Having reviewed the uncontroverted evidence below, I conclude that appellants have met all three Gingles requirements. This is all the Supreme Court requires, and I may require no more.”). Conversely, Judge Tjoflat, writing a specially concurring opinion in which Judges Fay, Edmondson, Cox, and Hill joined, believed that the totality of the circumstances in Gingles required more than an inquiry into the three factors of compactness, eohe-siveness, and majority bloc voting. Judge Tjoflat opined that “a section 2 plaintiff does not necessarily win by proving the three Gingles factors.” Instead, he reasoned, “[sjection 2, its legislative history, and Gin-gles itself all call for a more searching and flexible inquiry into the totality of the circumstances surrounding the voting system ...” Solomon, 899 F.2d at 1022 (Tjoflat, C.J., specially concurring). Part of the inquiry envisioned by Judge Tjoflat could encompass evidence submitted by a section 2 defendant “affirmatively show[ing], under the totality of the circumstances, that the community is not motivated by racial bias in its voting.” Id. Judge Tjoflat engaged in an extensive discussion of case law and the legislative history of the 1982 amendment to explain why he believed racial bias played such a decisive role in examining a section 2 claim. He found that amended section 2 was intended to restore the invidious discrimination requirement as articulated by the Whitcomb and White courts: a plaintiff must prove either (1) the subjective discriminatory motive of the legislators or officials, or (2) the existence of objective factors, showing that the electoral scheme interacted with racial bias in the community and allowed that bias to dilute the minorities’ voting strength. Id. at 1029 (Tjoflat, C.J., specially concurring). He further interpreted the Senate Report’s use of the phrase “discriminatory result” as requiring interaction between “a suspect scheme and racial bias in the voting community.” Id. at 1032 (Tjoflat, C.J., specially concurring) (quoting S.Rep. at 22, 28, 1982 U.S.C.C.A.N. at 200, 206). Stated another way, “[i]f only the suspect scheme is present, without bias in the community, the scheme cannot, by definition, result in classifications, decisions, or practices based on race or color.” Solomon, 899 F.2d at 1032 (Tjoflat, C.J., specially concurring). Judge Tjoflat concluded by summarizing his construction of the proper analytical framework for section 2 eases after Gingles. First, where the plaintiff cannot prove the three Gingles factors, then the defendant prevails. Second, where the plaintiff proves the Gingles factors, thereby creating an inference of racial discrimination within the voting community, three scenarios are possible. If the defendant offers nothing in rebuttal, then the plaintiff wins. If the defendant “offers proof of other objective factors in rebuttal, the court must be satisfied, before it may rule in favor of the plaintiff, that, under the totality of the circumstances, the minority group is denied meaningful access to the political process ‘on account of race or color.’ ” Solomon, 899 F.2d at 1035 (Tjoflat, C.J., specially concurring). However, if the defendant can show “evidence of objective factors that, under the totality of the circumstances, indicate that the voting community is not driven by racial bias,” then the plaintiff cannot prevail. Id. Judge Tjoflat believed that this framework made the burden of proof “just right.” Id. at 1037 (Tjoflat, C.J., specially concurring). Judge Kravitch took strong exception to Judge Tjoflat’s approach. According to Judge Kravitch, Gingles stood for the proposition that the only question in assessing vote dilution “is whether as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.” Thus, if plaintiffs are able to establish that the challenged electoral practice has the effect of diluting minority voting strength, defendants cannot argue as an affirmative defense that the practice was adopted or maintained for a nondiscriminatory reason. Id. at 1016 (Kravitch, J., specially concurring) (quoting Gingles, 478 U.S. at 44, 106 S.Ct. at 2762-63). In sharp contrast to Gin-gles’ admonition, Judge Kravitch believed that Judge Tjoflat’s method would reintroduce intent and bias into section 2 cases. Quoting much of the same language from the Senate Report which was used by Justice Brennan in Gingles , Judge Kravitch surmised that evidence of racial bias “would involve litigating the issue of whether or not the community as a whole was motivated by racism, a divisive inquiry that Congress sought to avoid by instituting the results test.” Solomon, 899 F.2d at 1016 n. 3 (Kravitch, J., specially concurring). Even if racial bias was required to be examined under the results test, Judge Kravitch noted that “a division on racial lines, as exemplified in voting patterns, is striking evidence of a racially divided community, and ... a fairly persuasive indicator of a community driven by racial bias.” Id. However, Judge Kravitch expressly declined to accept Judge Tjoflat’s suggestion that racial bias had a place in the results test analysis of a vote dilution claim brought under section 2. 2. The dialogue continues in Nipper: Judge Tjoflat observed in Nipper that De Grandy cleared up the first question which divided the Eleventh Circuit in Solomon: namely, the legal effect of establishing the three Gingles factors. See Nipper, 39 F.3d at 1513-14 (Tjoflat, C.J., joined by one judge). The Court agrees with this assessment. As discussed in Section 1(A)(4), supra, the De Grandy court held that the Gin-gles factors are necessary preconditions to a section 2 claim. Establishment of the preconditions does not obviate the requirement that a district court review under the totality of the circumstances all of the relevant facts pertaining to a vote dilution challenge. Hence, it is unsurprising that after De Grandy, four of the Eleventh Circuit judges in Nipper shifted their gaze towards the one unresolved issue from Solomon: the role that racial bias plays in the vote dilution inquiry. Writing for himself and Judge Anderson, Judge Tjoflat reiterated his belief that racial bias plays a crucial role in the section 2 analysis. Judge Tjoflat interpreted section 2’s prohibition of voting structures which result in unequal voting opportunity “on account of race or color” as “explicitly retain[ing] racial bias as the gravamen of a vote dilution claim.” Nipper, 39 F.3d at 1515 (Tjoflat, C.J., joined by one judge). Judge Tjoflat reasoned that the decision to include the “on account of race or color” language was “not so much the product of legislative discretion as constitutional imperative, given that the scope of Congress’ remedial power under the Civil War Amendments is defined in large part by the wrongs they prohibit.” Id. at 1516 (quoting League of United Latin Am. Citizens, Council No. USi v. Clements (“LULAC”), 999 F.2d 831, 854 (5th Cir.1993) (en banc), cert. denied, 510 U.S. 1071, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994)). Moreover, he believed that ignoring the “on account of race” language by failing to allow an inquiry into racial bias within the subject voting community, would “create a de facto right to proportional representation, a result explicitly prohibited by section 2 itself.” Nipper, 39 F.3d at 1516-17 (Tjoflat, C.J., joined by one judge). Judge Tjoflat then engaged in an extensive analysis of the legislative history of the 1982 amendment to explain why “racial bias in the voting community remains the keystone of section 2 vote dilution claims.” Id. at 1517. He repeated his contention that the 1982 amendment retained the requirement from Whitcomb and White that a plaintiff “must prove invidious discrimination in order to establish a violation of section 2.” Id. at 1524. Addressing concerns raised by the Department of Justice that such a reading amounted to a reintroduction of the Bolden intent test, Judge Tjoflat drew a distinction between examining the racial motivations of lawmakers and a more general inquiry into racial bias within the voting community. See id. at 1520-24. He read certain language contained in the Senate Report as confirming that “[t]he Judiciary Committee ... conceived of racial bias at work in the electoral process as the key to separating, within the meaning of the Voting Rights Act, those jurisdictions in which minority voters have an equal opportunity to participate from those in which they do not.” Id. at 1523. Furthermore, Judge Tjoflat found that examining the presence or absence of racial bias in a community “would not reintroduce ... the divisiveness that Congress sought to eliminate” because proof of a section 2 claim by circumstantial evidence “does not require that any individuals be labelled as racists.” Id. Judge Tjoflat found support for his analysis in the Fifth Circuit’s decision in LULAC [999 F.2d at 831], a vote dilution challenge to a state judicial election scheme in Texas. The LULAC court had reversed a lower court judgment finding section 2 Lability, when the evidence showed that partisan affiliation, and not race, best explained divergent voting patterns among minority and white citizens. See 999 F.2d at 850. Under LU-LAC ’s approach to the racial bias issue, which Judge Tjoflat cited with approval, _[c]ourts must undertake the additional inquiry into the reasons for, or causes of, [minority] electoral losses in order to determine whether they were the product of “partisan politics” or “racial vote dilution,” “political defeat” or “built-in bias.” It is only upon concluding that a minority group’s failure to prevail at the polls ... was the “result” of “function” of “racial vote dilution” or “built-in bias,” that a court may find that minority plaintiffs have suffered “a denial or abridgement of the right ... to vote on account of race or color.” Nipper, 39 F.3d at 1525 (Tjoflat, C.J., joined by one judge) (quoting LULAC, 999 F.2d at 853-54). However, the LULAC court had also expressed concern that conditioning section 2 relief upon proof of racial bias in the voting community would require plaintiffs to “establish the absence of all ... potentially innocent explanations for white voters’ rejection of minority-preferred candidates.” 999 F.2d at 859. Judge Tjoflat confronted this problem by indicating that a section 2 plaintiff would not have to “prove the negative.” Instead, “proof of the second and third Gingles factors [cohesiveness and majority bloc voting] will ordinarily create a sufficient inference that racial bias is at work.” Nipper, 39 F.3d at 1525 & n. 64 (Tjoflat, C.J., joined by one judge). A defendant would then be allowed to “rebut proof of vote dilution by showing [under the totality of the circumstances] that losses by minority-preferred candidates are attributable to non-racial causes.” Id. at 1526. Judge Hatchett, joined by Judge Kravitch in his dissent, wrote the rejoinder to Judge Tjoflat’s opinion. Judge Hatchett opined that despite Judge Tjoflat’s “searching effort, absolutely no authority exists in either the case law, the legislative history, or the language of the Act” to support the imposition of a racial bias inquiry. Nipper, 39 F.3d at 1548 (Hatchett, J., dissenting). Specifically, Judge Hatchett found that “Congress and the Supreme Court have never required as a threshold issue an inquiry into the private motivations of individual voters to substantiate a vote dilution claim.” Id. Rather, “the proper focus of a voting rights challenge has always been whether the state, intentionally or otherwise, maintained an electoral system that disadvantages minorities on account of race.” Id. Judge Hatchett examined at great length the development of section 2. He first found that the Supreme Court did not interpret the Fourteenth and Fifteenth Amendments as “regulatfing] the conduct of private individuals in elections for state officers.” Id. (collecting citations). Instead, “[t]he racial bias inquiry was only relevant to demonstrate the intent of the legislature in utilizing a particular electoral system that disadvantaged racial minorities.” Id. at 1549. Thus, when Congress enacted the Voting Rights Act, it tailored section 2 “to fit within the constitutional confines of its ability to regulate state action rather than the activity of private individuals.” Id. Similarly, Judge Hatchett did not read the pre-Bolden cases as requiring an inquiry into racial bias under the results test. He found that the objective evidence discussed in Whitcomb, White, and Zimmer helped a plaintiff demonstrate “disparate impact” of vote dilution by showing that the challenged election scheme or practice provided minorities with “less opportunity ... to participate in the political process and elect legislators of their choice.” Nipper, 39 F.3d at 1550 (Hatchett, J., dissenting) (quoting Whitcomb, 403 U.S. at 149, 91 S.Ct. at 1872). The objective factors themselves were seen by Judge Hatchett as “concem[ing] the activities of state and quasi-state officials in employing various devices to obstruct the ability of racial minorities to elect candidates of their choice.” Nipper, 39 F.3d at 1550-51 (Hatchett, J., dissenting). Consequently, Judge Hatchett concluded that “[t]he pre-Bolden era did not proscribe individual voter racial discrimination; instead, it proscribed the machinations of state officials that intentionally or effectively presented a racial bar to the ability of minorities to elect their favored candidates.” Id. at 1551. According to Judge Hatchett, the 1982 amendment to section 2 marked a return to the pre-Bolden results test, without an accompanying requirement “to inquire into the racial biases of individual voters.” Nipper, 89 F.3d at 1552 (Hatchett, J., dissenting). As an initial matter, Judge Hatchett flatly rejected Judge Tjoflat’s construction of the “on account of race” language. Judge Hatchett pointed out t