Full opinion text
PER CURIAM: We unanimously vacate the district court’s judgment and remand the case for further proceedings in accordance with the Supreme Court’s pronouncement in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). We hold, as a matter of law, that the appellants have satisfied the three Gingles factors, see post at 1037 (Tjoflat, C.J., specially concurring), 1017 (Kravitch, J., specially concurring), but we are divided on the legal effect of proving those factors. Because we are divided in our interpretation of Gingles and section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1982), we do not specifically direct the district court on how to proceed on remand. Rather, we instruct the district court to proceed in accordance with Gingles, giving due consideration to the views expressed in Chief Judge Tjoflat’s and Judge Kravitch’s specially concurring opinions. This case is VACATED and REMANDED for further proceedings. IT IS SO ORDERED.
KRAVITCH, Circuit Judge, specially concurring, in which JOHNSON, HATCHETT, ANDERSON and CLARK, Circuit Judges, join: Appellants brought these cases alleging that the at-large method of electing county commissioners and school board members in Liberty County, Florida denies black voters a fair opportunity to participate in the political process and to elect candidates of their choice. This court granted appellants’ petition for rehearing in banc to clarify the plaintiff's burden of proof in a claim under section 2 of the Voting Rights Act of 1965, 42 U.S.C. §§ 1971, 1973 to 1973bb-l (1982). I. BACKGROUND Both the county commission and the school board in Liberty County, Florida consist of five members who serve staggered four-year terms. Fla. Const. Art. VIII, § 1(e) (county commission); Fla.Stat. § 100.041(3) (1987) (school board). The county is divided into five districts; candidates for the commission and the school board run from the district in which they live. Fla. Const. Art. VIII, § 1(e) (commission); Fla.Stat. § 124.01 (1987) (commission); id. § 230.061 (school board). In both the primary and general elections, the entire county electorate votes for one candidate from each residence district. Id. § 100.041(2) (commission); Id. §§ 230.-08-.10 (school board). A candidate must receive a majority of the county wide vote to be selected as his party’s nominee in the primary election. If no candidate receives a majority of the vote in the primary, a run-off primary election is held. See §§ 100.061, 100.091. In the general election, candidates must obtain a plurality of the countywide vote to win election. Id. §§ 100.181, 230.10. Blacks comprise eleven percent of the population of Liberty County. Under the present residency district lines, blacks comprise 49 percent of the total population of District 1, and 51 percent of the total population of voting age in that district. There have been four black candidacies for elected countywide offices in Liberty County: three for the school board and one for the county commission. All of the black candidates have been unsuccessful. Appellants seek injunctive relief, contending that the county should be divided into five districts, each of which would elect a single member to the commission and to the school board. The new geographical division would create a district with a black majority. The district court ruled in favor of appellees, finding that black voters exercise more political influence under the current system than they would under any single-member district plan. Solomon v. Liberty County, Florida, Nos. TCA 85-7009-MMP & TCA 85-7010-MMP, slip op. (N.D.Fla.1987). On appeal, a panel of this court vacated the judgments of the district court and remanded for further proceedings on the ground that the district court analyzed the evidence under an erroneous legal standard. Solomon v. Liberty County, Fla., 865 F.2d 1566, 1573 (11th Cir.1988), vacated, 873 F.2d 248 (1989). II. SECTION 2 OF THE VOTING RIGHTS ACT The proof required to establish a claim for voting discrimination has been changed twice since the Voting Rights Act was passed in 1965. Until 1980, voting discrimination cases were governed by the “results test.” Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872-73, 29 L.Ed.2d 363 (1971); White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973); Zimmer v. McKeithen, 485 F.2d 1297, 1304-05 (5th Cir.1973), aff'd on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). Under this test, plaintiffs could prevail by showing that, under the totality of the circumstances, the challenged electoral procedure had the result of denying a minority group equal opportunity to participate in the political process. Zimmer identified numerous factors that would influence a finding of exclusionary results. 485 F.2d at 1305. Plaintiffs were not required to demonstrate that lawmakers had acted intentionally to exclude minorities. Then, in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Supreme Court renounced the results test. Although there was no majority opinion in Bolden, at least five justices took the position that discriminatory purpose was a necessary element of a claim for vote dilution. In order to establish a violation of either section 2 of the Voting Rights Act of 1965 or of the Fourteenth or Fifteenth Amendments, plaintiffs were required to prove that officials adopted or maintained a challenged electoral mechanism with the intent to discriminate against minority voters. Zimmer, a plurality of the Court explained, was “decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause — that proof of a discriminatory effect is sufficient.” Bolden, 446 U.S. at 71, 100 S.Ct. at 1501-02. The plurality said that henceforth a necessary ingredient of a successful claim of minority vote dilution was evidence that officials “ ‘conceived or operated [a] purposeful devic[e] to further racial discrimination.’ ” Id. at 70, 100 S.Ct. at 1501 (quoting Whitcomb, 403 U.S. at 149, 91 S.Ct. at 1872). In 1982, largely in response to the Court’s decision in Bolden, see S.Rep. No. 417, 97th Cong., 2d Sess. 24-39, reprinted in 1982 U.S.Code Cong. & Admin.News 177 (hereinafter S.Rep.), Congress amended section 2 of the Voting Rights Act to restore the legal standard that governed voting discrimination cases prior to Bolden. S.Rep. at 27. In adopting the results test, Congress sought to remedy several problems engendered by the subjective intent test. First, the intent test “asks the wrong question,” id. at 36, by probing the racial motives of lawmakers rather than determining whether minorities can participate equally in the political system. “If [minorities] are denied a fair opportunity to participate ... the system should be changed, regardless of what may or may not be provable about events which took place decades ago.” Id. Second, Congress found the intent test unnecessarily divisive because it requires charges of racism on the part of officials or entire communities, a consequence which the results test avoids. Id. Finally, the intent test places too high an evidentiary burden on plaintiffs, often involving attempts to reconstruct the motives of persons long dead from incomplete or even non-existent official records. Id. at 36-37. See also Note, To Infer or Not to Infer a Discriminatory Purpose: Rethinking Equal Protection Doctrine, 61 N.Y.U.L.Rev. 334, 343-44 (1986) (summarizing the difficulties of proving discriminatory intent). Congress found that the intent test diminished the effectiveness of the Voting Rights Act as a means of fighting voting discrimination. Explaining its rejection of Bolden, see S.Rep. at 31-34, 37-39, the Committee on the Judiciary noted that “[i]t was only after the adoption of the results test and its application by the lower federal courts that minority voters in many jurisdictions finally began to emerge from virtual exclusion from the electoral process. We are acting to restore the opportunity for further progress.” Id. at 31, 1982 U.S. Code Cong. & Admin.News at 209. The Senate Report set forth several “factors” derived from White, Zimmer, and other voting rights cases, a showing of which will typically establish a section 2 violation: 1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote or otherwise to participate in the democratic process; 2. the extent to which voting in the elections of the state or political subdivision is racially polarized; 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; 6. whether political campaigns have been characterized by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. S.Rep. at 28-29, 1982 U.S.Code Cong. & Admin.News at 206-207 (footnotes omitted). The report listed two additional circumstances that might be probative of a violation: 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. Id. at 29, 1982 U.S.Code Cong. & Admin. News at 207 (footnotes omitted). The Report stressed that plaintiffs are not required to prove any particular number of the listed factors, and that other factors not listed might be probative in some cases, because the results test examines the totality of the circumstances. Id. at 29 & n. 118; Armour v. Ohio, 895 F.2d 1078, 1084 (6th Cir.1990). Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), presented the first opportunity for the Supreme Court to interpret the effect of the 1982 amendment on the plaintiffs burden under section 2. Addressing the factors enumerated in the Senate Report, the Court reeog-nized that some or all of the factors might be relevant, but emphasized that the existence of racial bloc voting was the essence of a successful vote dilution claim. Id. at 46, 48-49, 106 S.Ct. at 2764, 2765-66. To prevail under section 2, a plaintiff challenging a multidistrict plan must fulfill three requirements: First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. ... Second, the minority group must be able to show that it is politically cohesive.... Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed ... —usually to defeat the minority’s preferred candidate. Id. at 50-51, 106 S.Ct. at 2766-67. See also Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1550 (11th Cir.1987) {Gingles “established a new three-part test for analyzing minority vote dilution claims under Section 2 of the Voting Rights Act.”). Gingles made clear that the 1982 amendment to section 2 obviated the need for plaintiffs to prove that the contested electoral mechanism was adopted or maintained with the intent to discriminate against minority voters. Gingles, 478 U.S. at 43-44, 106 S.Ct. at 2762-63. The only question, the Court explained, “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.’ ” Id. at 44, 106 S.Ct. at 2762-63 (quoting S.Rep. at 28). 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. Recently, the Eighth Circuit in Whitfield v. Democratic Party of Arkansas similarly concluded that the legislative history and text of section two, and the Supreme Court’s decision in Gingles repudiate the injection of discriminatory intent into a section two claim. 890 F.2d 1423, 1429-30 (8th Cir.1989); see also Armour, 895 F.2d at 1083 (relying on legislative history to reject intent test for section two claims). “While proof of [discriminatory] intent may be used to show a violation of section 2, such proof is not required of a plaintiff under the statutory language.” 890 F.2d at 1429 (citations omitted). III. APPLYING THE GINGLES TEST The district court failed to pay sufficient deference to the three part vote dilution test laid out by the Supreme Court in Gin-gles and recognized by this court in Car-rollton, Although 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 Gingles Court made clear that the three part test of Gingles is a threshold that a plaintiff must meet in order to maintain a section 2 claim; the Court recognized, however, that “the other factors, such as the lingering effects of past discrimination, the use of appeals to racial bias in election campaigns, and the use of electoral devices which enhance the dilutive effects of multimember districts when substantial white bloc voting exists— for example antibullet voting laws and majority vote requirements, are supportive of, but not essential to, a minority voter’s claim.” 478 U.S. at 48 n. 15, 106 S.Ct. at 2765 n. 15 (emphasis in original). As is evident in my discussion below, proof of the three Gingles factors is both necessary and, in this case, sufficient for a section 2 vote dilution claim. Applying the Gingles test to the uncontroverted statistical evidence below, it is apparent that the appellants met each of the three Gingles requirements as a matter of law. A. The first Gingles test requires appellants to show that blacks in Liberty County constitute a group sufficiently large and geographically compact that they would have the potential to elect their own representatives under a single-member district scheme. Gingles, 478 U.S. at 50 & n. 17, 106 S.Ct. at 2766 & n. 17. If a minority group is too small or dispersed to elect its own representatives under any reasonable alternative plan, then an at-large system cannot be responsible for that group’s inability to elect its candidates. Although blacks comprise only 11% of Liberty County’s total population, the undisputed demographic evidence indicates that the black population is concentrated in the northwest region of Liberty County. The current residency districts already divide the county into five equally populous regions. These district lines could thus be used to hold single-member district elections. In District 1, blacks represent 49% of the total population, 51% of the voting age population, and 46% of the registered voting age population. The district court incorrectly relied in part on the registered voter statistic and ignored the proportion of voting age residents who are black. An at-large election system that frustrates the ability of minorities to elect their chosen representatives will naturally reduce the incentive for blacks to register to vote. The district court thus relied on an indicator which might reward and perpetuate a history of disenfranchising blacks. The racial composition of voting age residents is one accurate measure of the potential for a minority group to elect their own representatives. Here, the undisputed evidence shows that blacks would constitute a majority of District l’s voting age population. That conclusively establishes that blacks are a sufficiently large and geographically compact group in Liberty County to be eligible for relief under the Voting Rights Act. B. The second Gingles test requires proof that blacks in Liberty County are politically cohesive. An at-large system cannot be responsible for submerging a minority group’s political interests if that group does not have common interests evidenced by a pattern of bloc voting. Gingles, 478 U.S. at 51, 106 S.Ct. at 2766-67. Plaintiffs may establish minority bloc voting by showing that a significant number of minority group members usually vote for the same candidates. Id. at 56, 106 S.Ct. at 2769. Ordinarily, direct evidence of minority voting patterns is unattainable, since ballots do not indicate a voter’s race. Instead, appellants presented statistical evidence prepared by Professor Douglas St. Angelo of Florida State University. One technique used by Professor St. Angelo was to estimate the number of white votes cast for a candidate based on the election results in virtually all-white precincts. From this estimate, Professor St. Angelo calculated the number of black votes cast for the candidate by subtracting the estimated number of white votes from the overall total. Professor St. Angelo applied this analysis to the six countywide elections involving black candidates and found that, excluding one candidacy, blacks received between 75 and 100 percent of the black vote. Another technique used by Professor St. Angelo was to perform regression analyses showing the correlation between the percentage of registered black voters in a precinct and the percentage of the vote a candidate received. Professor St. Angelo performed these analyses on three types of elections: elections involving black candidates for county office, elections involving black candidates for national office, and elections involving racial issues or themes. In fourteen of sixteen elections, there was an exceptionally strong positive correlation between the number of registered black voters and the number of votes received by the candidate expected to receive black support. In Gingles the Supreme Court found that black support for black candidates was “overwhelming” based on evidence that was substantially similar to the evidence in this case. 478 U.S. at 59, 106 S.Ct. at 2770-71. I conclude that appellants’ un-controverted statistical evidence was sufficient to establish black political cohesiveness as a matter of law. C. Finally, the third Gingles test requires appellants to demonstrate that whites in Liberty County vote sufficiently as a bloc that they usually are able to defeat the minority’s preferred candidate. 478 U.S. at 56, 106 S.Ct. at 2769. Appellants presented strongly persuasive evidence of white vote polarization. It was undisputed that the average white crossover vote was twenty-one percent in the six countywide elections that involved black candidates. This means that on average nearly eighty per cent of whites in Liberty County have voted as a bloc in elections involving black candidates for county office. The district court correctly noted that the white vote in Liberty County is not as polarized as the black vote. However, because blacks comprise only 11% of the County’s population, even a moderate degree of white voter polarization is sufficient to defeat the candidates preferred by black voters. Not a single black has ever been elected in Liberty County. The most cross-over support any black candidate has ever received is 40.5% of the white vote. That candidate would have been defeated even if he had received 100% of the black vote. Thus, black voters have never had an opportunity to elect a black representative, despite their manifest preference for those black candidates that have presented themselves. Six futile elections is enough. Appellants’ evidence was sufficient as a matter of law to establish that white voting in Liberty County is racially polarized to the extent that blacks are unable to elect the candidates of their choice. In conclusion, the district court erred in failing correctly to apply the Gingles test. 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. . This issue has occasioned a great deal of scholarly comment. See, e.g., McDonald, The Quiet Revolution in Minority Voting Rights, 42 Vand.L.Rev. 1249 (1989); Abrams, “Raising Politics Up”: Minority Political Participation and Section 2 of the Voting Rights Act, 63 N.Y.U. L.Rev. 449 (1988). . Section 2, as amended, provides: (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 1973b(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 their proportion in the population. 42 U.S.C. § 1973(b). . Chief Judge Tjoflat argues that even if a plaintiff proves the three Gingles factors, the defendant may defeat the plaintiffs claim by demonstrating that the community is not driven by racial bias. Chief Judge Tjoflat has canvassed the pertinent cases and legislative history and provided his view of how § 2, as amended, should be interpreted. The Supreme Court also had the benefit of the prior cases and the legislative history, however, and in our view interpreted section two to remove the intent and bias considerations that Congress objected to in Bol-den. Chief Judge Tjoflat cites White v. Regester for the proposition that the Court "expressly retained the requirement, under the fourteenth amendment, of proving invidious discrimination.” The Court glossed invidious use, in the context of multi-member districts, stating that to sustain such a claim the plaintiff has the burden of producing 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.” 412 U.S. at 766, 93 S.Ct. at 2339. Permitting a defendant the affirmative defense of showing the absence of community 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. The Committee quoted the testimony it found persuasive that such an inquiry "can only be divisive, threatening to destroy any existing racial progress in a community.” S.Rep. at 36, 1982 U.S.Code Cong. & Admin.News at 214. Chief Judge Tjoflat’s analysis takes a tack similar to that of Justice O’Connor’s concurring opinion in Gingles. It bears noting that her opinion clearly posed the alternative now urged by Chief Judge Tjoflat, yet failed to obtain the support of a majority of the Court. The “results” test as developed in Gingles requires the showing of racial bloc voting. Although I do not believe that amended § 2 introduced the concept of racial bias, I note that a division on racial lines, as exemplified in voting patterns, is striking evidence of a racially divided community, and, I submit, a fairly persuasive indicator of a community driven by racial bias. 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. On the totality of the evidence in the instant record, plaintiffs have clearly established their claim. . The district court did not have the benefit of the Carrollton decision when it issued its ruling. . The Gingles test applies to those vote dilution cases in which the plaintiff relies solely on the disparate impact of an election scheme to establish a violation of the Voting Rights Act. In cases where a plaintiff can show that an electoral scheme was purposefully adopted to weaken a minority group’s political influence, a less stringent test of discriminatory impact presumably would apply. . In concluding that the Gingles test has been met as a matter of law, I am mindful that the ultimate determination of vote dilution is a question of fact to be resolved under the totality of the circumstances. Gingles, 478 U.S. at 79, 106 S.Ct. at 2781. An appellate court may not set aside a finding of fact unless it is clearly erroneous, giving due regard to the district court’s opportunity to judge the credibility of witnesses. Fed.R.Civ.P. 52(a). However, as the Supreme Court noted in Gingles, Congress provided legal standards which a court must apply to the facts in order to determine whether § 2 has been violated. 478 U.S. at 79, 106 S.Ct. at 2781. In reviewing the trial court’s application of those standards, appellate courts are not limited by the clearly erroneous standard of review. "Rule 52(a) ‘does not inhibit an appellate court’s power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.’ ” Id. (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501, 104 S.Ct. 1949, 1960, 80 L.Ed.2d 502 (1984)). The three Gingles requirements present mixed questions of law and fact. Initially, the district court must make findings of fact concerning the polity's demographics and actual voting patterns in particular elections. The subsequent determination of the legal inferences to be drawn from those facts, however, involve questions of law and the application of legal standards. See Gingles, 478 U.S. at 55-58, 106 S.Ct. at 2768-70 (discussing the standards for "legally significant" racial bloc voting); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2589 (1971). Here, the appellants presented uncontested statistical evidence that went to the heart of each of the three Gingles requirements. Although the district court raised its own objections to the statistical evidence, these concerns were not based on an evaluation of competing testimony or other evidence in the record. The district court simply found that the evidence was "statistically significant” but not "legally significant.” Slip op. at 6. Almost by definition, this conclusion involves questions of law and must be reviewed de novo. Seemingly as an afterthought, the district court also found that the statistical evidence could not be relied on to reflect real voting behavior in Liberty County. Slip op. at 12. This finding is not supported by the evidence and appears to contradict the court’s earlier conclusion that the evidence was statistically significant. Having reviewed the record and the district court’s criticisms, I conclude that rejection of appellants’ statistical evidence was clearly erroneous. . This holding should not be read to imply an opposite result where blacks do not constitute an outright majority of the voting age population in any district. So long as the potential exists that a minority group could elect its own representative in spite of racially polarized voting, that group has standing to raise a vote dilution challenge under the Voting Rights Act. Gingles, 478 U.S. at 50 n. 17, 106 S.Ct. at 2766. In some cases, blacks may constitute a majority of the overall population and may be expected to comprise a majority of the voting age population in the near future. In other cases, blacks may be so close to fifty percent that they would have a realistic chance of electing a representative. Finally, it may be that the addition of only one or two representatives to the deliberative body would make it possible for a minority group to attain a voice. The present case does not involve these more difficult situations, however, and so I leave their consideration for another time. . Professor St. Angelo’s results are summarized in the following table. There is'reason to believe that elections 2 and jrbelow are poor indicators of black political cohesiveness, since the district court found that the white establishment in Liberty County backed Earl Jennings' 1980 school board candidacy. ELECTIONS INVOLVING BLACK CANDIDATES FOR COUNTY OFFICE Estimated Percentage Vote Received from White Election Voters_ Resulting Percentage Vote Received from Black Voters 1. May 7, 1968 School Board (1st Primary) Charles Berrium 2.8% 100.0% 2. September 9, 1980 School Board (1st Primary) Earl Jennings 17.0% 44.7% 3. October 7, 1980 School Board (Primary Runoff) Earl Jennings 40.5% 64.7% 4. September 4, 1984 County Commission (1st Primary) Gregory Solomon 18.8% 74.7% 5. October 2, 1984 County Commission (Primary Runoff) Gregory Solomon 32.9% 90.0% 6. September 4, 1984 School Board (1st Primary) Earl Jennings 14.5% 78.2% .Regression analyses produce a number known as an "r” coefficient which expresses the degree of correlation between two variables. The “r" values range from 0, which indicates no relationship, to 1, which indicates a perfectly consistent relationship. Values above 0.3 may be considered statistically significant, while values above 0.8 reflect an exceptionally strong correlation. Professor St. Angelo's findings are set forth in the table below. ELECTIONS INVOLVING BLACK CANDIDATES FOR COUNTY OFFICE (Percent Vote Received by Identified Candidates Per Precinct/Percent Black Election Voters Per Precinct) 1. May 7, 1968 School Board (1st Primary) Charles Berrium .996 2. September 9, 1980 School Board (1st Primary) Earl Jennings .578 3. October 7, 1980 School Board (Primary Runoff) Earl Jennings .280 4. September 4, 1984 County Commission (1st Primary) Gregory Solomon .989 5. October 2, 1984 County Commission (Primary Runoff) Gregory Solomon .962 6. September 4, 1984 School Board (1st Primary) Earl Jennings .919 ELECTIONS INVOLVING BLACK CANDIDATES FOR NATIONAL OFFICE 7. September 1970 U.S. Senate Democratic Primary Hastings .917 8. March 1972 President Democratic Primary Chisholm .998 9. March 1984 President Democratic Primary Jackson .983 ELECTIONS INVOLVING RACIAL ISSUES OR THEMES 10. November 1968 President Humphrey (vs. Nixon and Wallace) .972 11. November 1970 Governor Askew (vs. Kirk) .847 12. March 1972 Straw Ballot In Favor of Busing .901 13. November 1972 President McGovern (vs. Nixon) .984 14. November 1976 President Carter (vs. Ford) .876 15. November 1980 President Carter (vs. Reagan) .935 16. November 1984 President Mondale (vs. Reagan) .961 .In Gingles, black support for black candidates ranged from 71% to 92% in all but 5 of 16 primary elections, and from 87% to 96% in the general elections. 478 U.S. at 59, 106 S.Ct. at 2770. . See the column in note 8, supra, under the heading "Estimated Percentage Vote Received from White Voters.” . Although the uniform inability of black candidates to win office buttresses the plaintiffs’ claim, I do not mean to suggest that the success of black candidates, without more, would compel a finding in favor of defendants. As this court said in Carrollton, [R]acial 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 group, not the race of the candidate that is important. 829 F.2d at 1557 (interpreting Gingles). . In Gingles, white support for black candidates ranged from 8% to 50% in primary elections and from 28% to 49% in general elections. 478 U.S. at 59, 106 S.Ct. at 2771. . Assuming equal voter turnout and an 89:11 ratio of white to black registered voters, that candidate could only have received 47% of the vote (.89 X 40.5% plus .11 x 100%). . See supra § III.B & notes 8-9. . Chief Judge Tjoflat overstates the case when he claims that my interpretation of Gingles results in a right to proportional representation. To the contrary, it provides at most the opportunity for minorities to elect representatives of their choice. Should they choose not to exercise that opportunity, they would have no further redress. That a certain group does not succeed in the electoral arena when it has a fair opportunity to do so is not a problem that may be remedied under § 2.
TJOFLAT, Chief Judge, specially concurring, in which FAY, EDMONDSON, and COX, Circuit Judges, and HILL, Senior Circuit Judge, join: I concur in the judgment of the court. I do not agree, however, with Judge Kravitch, who would hold as a matter of law that the appellants have prevailed. I adhere to the views expressed by the panel in this case, see Solomon v. Liberty County, 865 F.2d 1566 (11th Cir.1988), vacated, 873 F.2d 248 (11th Cir.1989) (en banc), and would remand this case to the district court for further proceedings consistent with that opinion. In her concurring opinion in Thornburg v. Gingles, 478 U.S. 30, 84, 106 S.Ct. 2752, 2784 (1986), Justice O’Connor stated that interpreting section 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1982), “is not an easy task.” I fully agree. Because 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. Nevertheless, we have available to us a substantial legislative history and a Supreme Court opinion interpreting section 2 to guide our analysis. In my view, Judge Kravitch, in her special concurrence (the Kravitch concurrence), misinterprets those sources. I write to explain why I believe Judge Kravitch’s position to be incorrect and what I consider to be the correct interpretation of section 2 in the vote dilution context. The Kravitch concurrence is somewhat ambiguous on certain key issues. At times, it seems to have redefined the totality-of-the-circumstances test to include only the three, mechanical factors articulated in Gingles, see ante at 1021: (1) the size and compactness of the minority population; (2) the political cohesiveness of the minority population; and (3) the voting tendencies of the white majority. Section 2, its legislative history, and Gingles itself all call for a more searching and flexible inquiry into the totality of the circumstances surrounding the voting system, and there is a very important reason for that flexibility. If Judge Kravitch is strictly limiting her inquiry to the three Gingles factors, she would create a right to proportional representation for all large, compact, and cohesive minority groups — a result explicitly forbidden by section 2. At other times, however, the Kravitch concurrence seems to say that a section 2 plaintiff does not necessarily win by proving the three Gingles factors and that the totality of the circumstances is still relevant. See ante at 1017-18. With this proposition, I would agree, but I fear that Judge Kravitch has failed to articulate the standard with which she has evaluated the appellants’ case. When could a section 2 plaintiff lose even though he has proven the three Gingles factors? How did Judge Kravitch decide in this case that the appellants’ evidence was sufficient to require judgment in their favor as a matter of law? How may a defendant rebut a section 2 claim when the three Gingles factors have been proven? The Kravitch concurrence neglects these important questions, which I attempt to answer below. In part I of this opinion, I review the judicial and legislative history of the 1982 amendment to section 2 in an attempt to define the balance struck by the compromise legislation that now appears as section 2. I submit that section 2 prohibits those voting systems that have the effect of allowing a community motivated by racial bias to exclude a minority group from participation in the political process. Therefore, if a section 2 defendant can affirmatively show, under the totality of the circumstances, that the community is not motivated by racial bias in its voting, a case of vote dilution has not been made out. In part II, I examine this proposition in light of the Supreme Court’s pronouncement in Gingles and show that Gingles in fact supports this interpretation of section 2. In part III, I summarize my discussion. Finally, in part IV, I explain how the case under consideration should be resolved given a proper interpretation of section 2. I. A. Judicial Background Our story begins in 1965, when Congress enacted the Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437 [hereinafter 1965 Act] (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-l (1982)). The 1965 Act was enacted pursuant to the authority granted to Congress by section 2 of the fifteenth amendment to enforce section 1 of the amendment with appropriate legislation. The heart of the 1965 Act was found in sections 4 and 5, which (1) designated certain areas of the country where voting discrimination had been most flagrant, (2) suspended literacy tests and other similar tests in those areas, and (3) prohibited any changes in voting procedures in those areas without first obtaining pre-clearance from the Attorney General or a declaratory judgment from the United States District Court for the District of Columbia that the new procedure “[did] not have the purpose and [would] not have the effect of denying or abridging the right to vote on account of race or color.” Id. § 5, 79 Stat. at 439 (codified as amended at 42 U.S.C. § 1973c). Less controversial and, at the time, less important was section 2, which applied to the entire nation and which stated: “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.” Id. § 2, 79 Stat. at 437 (codified as amended at 42 U.S.C. § 1973). Sections 4 and 5 of the 1965 Act were upheld against constitutional attack in South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 808, 15 L.Ed.2d 769 (1966). Although the Court there expressed no opinion as to the constitutionality of section 2 of the 1965 Act, it did set out a test to be used in all challenges to legislation enacted pursuant to section 2 of the fifteenth amendment. Quoting Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879), the Court stated: [w]hatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. Katzenbach, 383 U.S. at 327, 86 S.Ct. at 818 (quoting Ex parte Virginia, 100 U.S. at 345-46). The Court went on to hold that, while parts of the 1965 Act may have constituted “an uncommon exercise of congressional power,” id. 334, 86 S.Ct. at 822, all of the challenged sections were appropriate within the meaning of Ex parte Virginia and the fifteenth amendment. 1. The Genesis of the Intent Test The next chapter in the story of section 2 begins with Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), in which the Supreme Court began its development of the intent test ultimately announced ten years later in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Whitcomb involved a challenge to a multimember-district electoral scheme in Marion County, Indiana. Significantly, the challenge was not based on section 2 of the 1965 Act or on the fifteenth amendment but on the fourteenth amendment. The Court noted that any schemes “conceived or operated as purposeful devices to further racial discrimination” would be struck down under the fourteenth amendment. 403 U.S. at 149, 91 S.Ct. at 1872. It found, however, that the scheme under attack had not been designed to dilute the minority vote. Id., 91 S.Ct. at 1872. The Court then shifted its focus from the intent of the county’s legislators to conditions in the voting community as a whole. The Court stated that invidious discrimination could not be proved only with evidence of the minority candidates’ lack of success. Instead, the Court held, the plaintiffs had to show that the minority population “had less opportunity than did other Marion County residents to participate in the political processes and to elect legislators of their choice.” Id., 91 S.Ct. at 1872. To make this showing, the plaintiffs could rely on evidence of certain objective factors, such as evidence of minorities being prohibited from registering to vote, from choosing a political party, or from being slated by the major parties. Id. at 149-50, 91 S.Ct. at 1872. Because much of this language was incorporated into the 1982 amendment to section 2, we should stop to consider exactly what the Court was saying. Apparently, the Court required proof of invidious discrimination to support a claim under the fourteenth amendment. But the Court seemed to recognize two types of discrimination and two methods of proving it. First, the plaintiff could prove invidious discrimination with proof of the legislators’ intent — the intent of either those who designed the scheme or those who maintained it. Second, the plaintiff could prove invidious discrimination with circumstantial evidence of racial bias in all levels of the voting community. Although the Court did not expressly recognize that it was talking about racial bias in two different groups, the objective factors articulated by the Court were not relevant only to “official” discrimination; they were relevant to racial bias in the political organizations and all levels of the voting community. Thus, the Court implicitly recognized that two groups were relevant to any inquiry into discrimination in the voting process: the legislators or officials responsible for designing or maintaining the procedure and the voting community as a whole. The Supreme Court’s next important voting rights case was White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). As in Whitcomb, the plaintiffs in White challenged, under the fourteenth amendment, the multimember-distriet apportionment plan of certain counties in Texas. In defining the constitutional issue before it, the Court stated that it was required to determine whether the apportionment plan had “been invidiously discriminatory against cognizable racial or ethnic groups in those counties.” Id. at 756, 93 S.Ct. at 2335. Thus, the Court retained proof of invidious discrimination as a requirement of a successful voting rights or vote dilution case brought under the fourteenth amendment. See id. at 764, 93 S.Ct. at 2339. The Court’s opinion in White never mentioned that the plaintiffs attempted to prove invidious discrimination with proof of the legislators’ subjective intent in designing or maintaining the scheme; we can reasonably assume no such attempt was made. Instead, the plaintiffs appear to have relied solely on circumstantial evidence, and it is the Court’s discussion of that evidence that is most relevant today. The Court began by noting that multi-member districts are not unconstitutional per se. Id. at 765, 93 S.Ct. at 2339. In a key statement, the Court then defined the essence of a vote dilution claim: “we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups.” Id. (emphasis added) (citing Whitcomb). Then, closely tracking the discussion in Whitcomb, the Court held that proof of lack of minority success is not sufficient to make out a vote dilution case. With language expressly incorporated into amended section 2, the Court held that [t]he 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 766, 93 S.Ct. at 2339 (citing Whit-comb ). Like the Whitcomb Court, the White Court then approved several objective factors used by the district court to determine whether the plaintiffs had met their burden of proof. First, the Court noted that the district court properly considered the history of official racial discrimination in Texas. It then approved the district court’s consideration of certain rules, such as a majority vote requirement in primaries and “place” rules, that, “neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination. ” Id. at 766, 93 S.Ct. at 2339-40 (emphasis added). Finally, the Court noted that the district court properly took into consideration the domination of the Democratic Party by a primarily white, private organization called the Dallas Committee for Responsible Government. The Supreme Court approved the district court’s consideration of the racial campaign tactics used by the Committee to defeat candidates supported by the black community. Id. at 767, 93 S.Ct. at 2340. The district court concluded that the minority population had been excluded from the political process in Texas, and, based on the objective factors found by the district court, the Supreme Court affirmed. Id., 93 S.Ct. at 2340. What exactly did the Supreme Court do in White? One commentator has suggested that the meaning of White “can be argued interminably.” See Blumstein, Defining and Proving Race Discrimination: Perspectives on the Purpose Vs. Results Approach from the Voting Rights Act, 69 Va.L.Rev. 633, 670 (1983). I am not so pessimistic. First, we know that the Court expressly retained the requirement, under the fourteenth amendment, of proving invidious discrimination. See White, 412 U.S. at 764, 93 S.Ct. at 2339. Second, White did not change the Whitcomb Court’s holding that a vote dilution challenge to a multimember-district scheme would succeed on proof of the legislators’ or officials’ subjective intent to enact or maintain legislation that would dilute the minority population’s voting strength. See Whitcomb, 403 U.S. at 149, 91 S.Ct. at 1872. Third, we know that the “invidious discrimination” requirement can also be satisfied with proof that the minority group had less opportunity than did other residents to participate in the political process and to elect legislators of their choice, which in turn can be proven with evidence of certain objective factors. See White, 412 U.S. at 766-67, 93 S.Ct. at 2339-40. This brings us to the question of what type of “invidious discrimination” the objective factors prove. The White Court said that a plaintiff succeeds when he can show that the multimember districts “are being used ” to dilute minority voting strength. Id. at 765, 93 S.Ct. at 2339 (emphasis added). Who did the Court think would be using the multimember districts to dilute minority voting strength? The Court also noted that certain rules, while “neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination.” Id. at 766, 93 S.Ct. at 2340 (emphasis added). Whose opportunity to discriminate did those rules enhance? I submit that the Court was concerned about the interaction between the voting scheme and racial bias in all levels of the voting community. Why else would a private organization’s racial campaign tactics be relevant? Why would the Court consider neutral rules that enhance the opportunity to discriminate? If the Court was concerned only with public officials’ bias, then it would have looked only to the motive behind enacting and maintaining those rules, not to the opportunity for discrimination that those neutral rules created. This interpretation of White would also explain the Court’s statement regarding the Mexican-American population in Bexar County that, “[bjased on the totality of the circumstances, the District Court evolved its ultimate assessment of the multimem-ber district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county. ” Id. at 769, 93 S.Ct. at 2341 (emphasis added). Professor Casper has argued that this portion of the Court’s opinion means that [mjultimember districts ... violate the Equal Protection Clause, not because they overrepresent or underrepresent pure and simple, but because they do that in a context where all stages of the electoral process have been effectively closed to identifiable classes of citizens, making the political establishment “insufficiently responsive” to (Mexican-American) interests. Casper, Apportionment and the Right to Vote: Standards of Judicial Scrutiny, 1973 Sup.Ct.Rev. 1, 28 (emphasis added). Clearly then, the objective factors are not relevant only to the narrow issue of legislators’ intent; rather, they are indicators of (1) racial bias in the political community as a whole and (2) an interaction between that bias and the challenged scheme. To summarize, after Whitcomb and White, a plaintiff could win a voting rights case under the fourteenth amendment only by showing “invidious discrimination,” and that showing could be made with evidence of either (1) the legislators’ or officials’ subjective intent to enact or maintain a discriminatory voting scheme, or (2) objective factors that tend to prove that the minority group has less opportunity to participate in the political process and to elect officials of its choice. And, as I have shown, a minority group has less opportunity to participate in the political process when the voting community is driven by racial bias and the challenged scheme enhances the opportunity to express that bias. In Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (en banc), aff'd sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), the former Fifth Circuit interpreted White and Whitcomb, adding several factors to the growing list of objective factors used to prove lack of access to the political process. Among the factors considered by the Zimmer court were (1) the responsiveness of officials to the minority group’s needs, (2) the purported state policy behind the scheme, (3) the existence of past discrimination, (4) the existence of large districts, (5) majority vote requirements, (6) anti-single-shot voting provisions, and (7) access to slating processes. Id. at 1305. 2. The Bolden Intent Test In City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Supreme Court again addressed a challenge to a multimember-district apportionment scheme, this time brought under the fourteenth and fifteenth amendments as well as section 2 of the 1965 Act. A plurality of the Bolden Court first held that, as a matter of statutory construction, section 2 of the 1965 Act simply restated the fifteenth amendment and granted nothing in addition to those rights already granted by the fifteenth amendment. Id. at 60-61, 100 S.Ct. at 1496. The plurality then held that “action by a State that is racially neutral on its face violates the Fifteenth Amendment [and, by implication, section 2 of the 1965 Act] only if motivated by a discriminatory purpose.” Id. at 62, 100 S.Ct. at 1497. Because the clear purpose of the 1982 amendment to section 2 was to overturn Bolden’s intent test, we should be absolutely certain of what the Bolden plurality held. The plurality reviewed many cases in the process of distilling the intent test, and in each discussion, it pointed out that proof of legislative intent was the gravamen of the complaint. See id. at 62-67, 100 S.Ct. at 1497-99. At one point, the plurality stated that “[a] plaintiff must prove that the disputed plan was ‘conceived or operated as [a] purposeful devic[e] to further racial ... discrimination.’ ” Id. at 66, 100 S.Ct. at 1499 (quoting Whitcomb). As I note above, this statement in Whitcomb was directed at cases in which the plaintiff attempts to prove the legislators’ or officials’ subjective intent in designing or maintaining the challenged scheme. As further evidence that the plurality was requiring proof of the legislators’ or officials’ subjective intent, the Court held that the Zimmer factors could not provide “sufficient proof of such a purpose.” Id. at 73, 100 S.Ct. at 1503. As I explain above, the Zimmer factors, or more accurately, the White-Zimmer factors, are relevant to a determination of racial bias in the voting community as a whole; thus, the Bolden plurality’s holding that the White-Zimmer factors alone could not support a finding of “purpose” indicates that the Court was requiring proof of the other form of invidious discrimination — i.e., racial bias on the part of legislators or other responsible officials. Stated succinctly, Bolden required proof of “what was in the minds of legislators who enacted or retained a voting law alleged to be discriminatory.” Parker, The “Results” Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va.L. Rev. 715, 740 (1983). This, in fact, was the district court’s understanding of the Supreme Court’s holding in Bolden when the case was remanded for further factfinding. In a lengthy opinion, the district court provided a detailed examination into the motives of the legislators who were responsible for devising the City of Mobile’s election scheme. See Bolden v. City of Mobile, 542 F.Supp. 1050, 1053-68 (S.D.Ala.1982). The district court then held that “invidious racial reasons played a substantial and significant part” in the legislators’ motives for designing the at-large election scheme. Id. at 1075. Bolden, therefore, stands for two propositions. First, it equates section 2 of the 1965 Act with the fifteenth amendment. Second, it requires, under the fifteenth amendment, that a plaintiff prove discriminatory intent on the part of the legislators who designed or maintained the voting scheme. B. Legislative Reaction to Bolden Most of the legal community immediately condemned the Bolden decision. See Parker, supra, at 737 & n. 110. Although the opinion was criticized on many grounds, the primary concern of most commentators seems to have been the heavy burden of proof that plaintiffs proceeding under the fifteenth amendment or section 2 of the 1965 Act would have to carry. See, e.g., id. at 740-46; The Supreme Court, 1979 Term, 94 Harv.L.Rev. 75, 147 (1980). Not only would plaintiffs have to pierce the neutral statements made by legislators, but they would also have to discern the hidden intent of legislators long dead. In 1982, several provisions of the 1965 Act were due to expire, and Congress, in response to the outcry against Bolden, took the opportunity to overturn the Bol-den plurality’s holding that section 2 simply restated the fifteenth amendment. While Congress could do nothing to the plurality’s holding that the fifteenth amendment required proof of legislative intent, Congress believed it could do something to section 2 of the 1965 Act. See S.Rep. No. 417, 97th Cong., 2d Sess. 41, reprinted in 1982 U.S.Code Cong. & Admin.News 177, 219. Thus, on April 7, 1981, a new chapter in the story of section 2 opened when several representatives introduced a bill that contained a key amendment to section 2. That bill provided as follows: Section 2 of the Voting Rights Act of 1965 is amended by striking out “to deny or abridge” and inserting in lieu thereof “in a manner which results in a denial or abridgement of” and is further amended by adding at the end of the section the following sentence: “The fact that members of a minority group have not been elected in numbers equal to the group’s proportion of the population shall not, in and of itself, constitute a violation of this section.”. H.R. 3112, 97th Cong., 1st Sess. § 2, 127 Cong.Rec. 6565 (1981). The House Judiciary Committee thought that this amendment would, without creating a right to proportional representation, effectively overturn the Bolden plurality’s holding that section 2 required proof of legislative or official intent. See H.R.Rep. No. 227, 97th Cong., 1st Sess. 2 (1981). The House Judiciary Committee perceived the amendment as restoring “the pre-Bolden understanding of the proper legal standard which focuses on the result and consequences of an allegedly discriminatory voting or electoral practice rather than the intent or motivation behind it.” Id. at 29-30. Thus, because the amended section would strike down schemes that “are imposed or applied in a manner which accomplishes a discriminatory result,” id. at 30, the plaintiff could win under section 2 merely “by showing the discriminatory effect,” id. at 29. The House Judiciary Committee then listed several objective factors, drawn from the White and Zimmer opinions, that could be used to prove the discriminatory “result” or “effect.” Id. at 30. With these statements, the House Judiciary Committee introduced a most troublesome oxymoron that I discuss below in detail: “discriminatory result.” 1. The Subcommittee on the Constitution The House of Representatives passed the bill by an overwhelming majority on October 5, 1981. H.R. 3112 was then introduced into the Senate on December 16, 1981, see 127 Cong.Rec. at 32,156, and was referred to the Subcommittee on the Constitution of the Senate Judiciary Committee. The Subcommittee did not greet the bill enthusiastically — it was not persuaded by the House Judiciary Committee’s assurances that the amendment created no right to proportional representation, nor was it persuaded by the overwhelming vote in the House. See Subcomm. on the Constitution of the Senate Comm, on the Judiciary, Voting Rights Act: Report of the Subcommittee on the Constitution [hereinafter Subcommittee Report] (“Given the environment of the House consideration of H.R. 3112, this subcommittee is not persuaded that special deference ought to be accorded the outcome of that consideration.”), appended to S.Rep. No. 417, supra, at 107, 126, reprinted in 1982 U.S.Code Cong. & Admin.News 278, 298. The Subcommittee gave several reasons for fearing that the amendment would result in proportional representation. The Subcommittee argued that the new “results test” provided no ultimate or threshold criterion with which a court could evaluate the evidence before it. Therefore, the Sub