R.o. Levy; Betty A. Etheredge v. LEXINGTON COUNTY, SOUTH CAROLINA, SCHOOL DISTRICT THREE BOARD OF TRUSTEES, No. 09-1550 

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 R.O. LEVY; BETTY A. ETHEREDGE,
Plaintiffs-Appellees,
v.
LEXINGTON COUNTY, SOUTH
CAROLINA, SCHOOL DISTRICT THREE
BOARD OF TRUSTEES,
No. 09-1550  Defendant-Appellant,
and
ELTON WILSON, in his official
capacity as Chair of the Lexington
County Registration and Election
Commission,
Defendant. 
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Margaret B. Seymour, District Judge.
(3:03-cv-03093-MBS)
Argued: September 24, 2009
Decided: December 21, 2009
Before KING and DUNCAN, Circuit Judges, and
Irene M. KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.

-- 1 of 19 --

Vacated and remanded by published opinion. Judge Duncan
wrote the opinion, in which Judge King and Judge Keeley
joined.
COUNSEL
ARGUED: Allan Lee Parks, Jr., PARKS, CHESIN & WAL-
BERT, PC, Atlanta, Georgia, for Appellant. Laughlin
McDonald, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, Atlanta, Georgia, for Appellees. ON
BRIEF: David T. Duff, DUFF, WHITE & TURNER, LLC,
Columbia, South Carolina; Kevin V. Parsons, SMITH, PAR-
SONS & VICKSTROM, PLLC, Charlotte, North Carolina,
for Appellant. Meredith Bell-Platts, AMERICAN CIVIL LIB-
ERTIES UNION FOUNDATION, Atlanta, Georgia; Herbert
E. Buhl, III, LAW OFFICES OF HERBERT E. BUHL, III,
Columbia, South Carolina, for Appellees.
OPINION
DUNCAN, Circuit Judge:
This appeal arises from a district court’s order holding that
the school board election system of Lexington County, South
Carolina, violates Section 2 of the Voting Rights Act of 1965,
42 U.S.C. § 1973 ("Section 2"). Appellant Lexington County
School District Three Board of Trustees (the "School Board")
argues that the district court erred in its analysis by consider-
ing only the elections that took place between 1994 and 2004,
and by misapplying the factors set forth by the Supreme Court
in Thornburg v. Gingles, 478 U.S. 30 (1986). For the reasons
that follow, we vacate the order and remand for further pro-
ceedings.
2 LEVY v. LEXINGTON COUNTY

-- 2 of 19 --

I.
Lexington County School District Three (the "District") is
one of five school districts in Lexington County, South Caro-
lina. It lies primarily within Lexington County, but also
includes a small portion of neighboring Saluda County. The
District is small: based on the 2000 Census, the total popula-
tion of the District is only 12,807 persons. African-Americans
constitute 28.5 percent of the population and approximately
22 percent of registered voters. The District educates roughly
2,100 students, about 40 percent of whom are minorities.
Before 1978, the School Board members were appointed by
the Lexington County Board of Education. But pursuant to a
1978 referendum vote, the District established a seven-
member School Board, elected in at-large,1 nonpartisan elec-
tions held in the last week of February of each year. School
Board members were elected to staggered, four-year terms,
with two seats elected in three of every four years, and the
remaining seat elected in the fourth. Under this electoral sys-
tem, three African-American individuals were elected to the
School Board from 1978 through 1993.
In 1994, the District’s method of electing School Board
members changed again. Under this new system, which con-
tinues to the present day, School Board members are elected
in nonpartisan, at-large elections held during the November
general election in even-numbered years. Four seats are
elected in presidential years and three seats are elected in non-
presidential even years. Since this change, voter turnout has
1Under at-large electoral systems, "a group of candidates is placed on
the ballot to fill a designated number of seats, and voters from everywhere
within the jurisdiction may vote to fill those seats." Steven J. Mulroy, The
Way Out: A Legal Standard for Imposing Alternative Electoral Systems as
Voting Rights Remedies, 33 Harv. C.R.-C.L. L. Rev. 333, 336 (1998).
"The traditional winner-take-all form of at-large elections allows each
voter to cast only one vote for each candidate, up to the number of avail-
able seats." Id.
3 LEVY v. LEXINGTON COUNTY

-- 3 of 19 --

quadrupled. Voter turnout among Whites, however, has out-
paced voter turnout among African-Americans.
On September 29, 2003, R.O. Levy, Betty A. Etheredge,
and Shirley W. Barr2 (collectively, "Plaintiffs") filed an action
against the School Board, its individual members, and Elton
Wilson in his official capacity as Chair of the Lexington
County Registration and Election Commission. Plaintiffs
alleged that the current School Board election process dilutes
the voting strength of African-American voters in violation of
Section 2. They explained that because of the new system,
"[c]andidates for the [School Board] preferred by African
Americans are usually defeated by the white majority voting
as a bloc." J.A. 18.
This case went to a bench trial on December 5, 2005. After
two days of testimony, the trial was recessed until March 8,
2006. At trial, Plaintiffs showed that from 1994 through 2003,
nine African-American candidates ran for the School Board
but none were elected. Although they conceded that one
African-American candidate, Cora Lester, was elected to the
School Board in 2004, Plaintiffs argued that the School Board
encouraged her candidacy after this action was filed in order
to thwart their Section 2 challenge. The trial ended on March
10, 2006.
The district court took this matter under advisement for
three years. During that time, two School Board elections
were held in 2006 and 2008. In the 2008 election, an African-
American candidate named Leon Drafts was elected. Given
his success, on January 21, 2009, the School Board filed a
motion for leave to supplement the record with the 2008 elec-
tion results.
On February 19, 2009, and without first deciding the
School Board’s motion to supplement, the district court issued
2Barr was dismissed as a party on September 28, 2004.
4 LEVY v. LEXINGTON COUNTY

-- 4 of 19 --

its judgment on the merits (the "Order"). The district court
explained that, based on "information up to and including the
2004 election," it determined that the School Board electoral
system adopted in 1994 violates Section 2. J.A. 731. This
appealed followed.3
II.
Section 2(a) of the Voting Rights Act of 1965 prohibits a
state or its political subdivisions from imposing any electoral
procedure or practice "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." 42 U.S.C. § 1973(a). Sec-
tion 2(b) of the Act, as amended in 1982, further provides that
a violation of Section 2 occurs
if, based on the totality of circumstances, it is shown
that the political processes leading to nomination or
election in the State or political subdivision are not
equally open to participation by members of a class
of citizens protected by subsection (a) of this section
in that its members have less opportunity than other
members of the electorate to participate in the politi-
cal process and to elect representatives of their
choice.
42 U.S.C. § 1973(b). This means that, where Whites have a
majority, minority members have less opportunity than other
members of the electorate to participate in the political pro-
cess and to elect representatives of their choice if the White
majority votes sufficiently as a bloc to defeat the minority’s
preferred candidates. See Gingles, 478 U.S. at 48-51.
In Gingles, the Supreme Court explained that three precon-
3Later, on April 17, 2009, the district court denied the School Board’s
motion to supplement. The court also denied a subsequent motion for
reconsideration.
5 LEVY v. LEXINGTON COUNTY

-- 5 of 19 --

ditions must be established for any Section 2 violation. First,
"the minority group must be able to demonstrate that it is suf-
ficiently large and geographically compact to constitute a
majority in a single-member district." Id. at 50. Second, "the
minority group must be able to show that it is politically cohe-
sive." Id. at 51. Third, "the minority must be able to demon-
strate that the white majority votes sufficiently as a bloc to
enable it . . . usually to defeat the minority’s preferred candi-
date." Id. (internal citation omitted).
"If these preconditions are met, the court must then
determine under the ‘totality of circumstances’ whether
there has been a violation of Section 2." Lewis v. Alamance
County, N.C., 99 F.3d 600, 604 (4th Cir. 1996) (citing
Johnson v. De Grandy, 512 U.S. 997, 1011 (1994); Collins
v. City of Norfolk, Va. ("Collins I"), 816 F.2d 932, 938 (4th
Cir. 1987)). In this analysis, courts should consider the factors
set forth in the Senate Judiciary Committee Majority Report
(the "Senate Report") accompanying the 1982 amendment
to Section 2 to determine whether, under the totality of the
circumstances, Section 2 has been violated.4 Collins I, 816
4Those factors are:
1. the extent of any history of official discrimination in the state
or political subdivision that touched the right of the members of
the minority group to register, to vote, or otherwise to participate
in the democratic process;
2. the extent to which voting in the elections of the state or politi-
cal 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 proce-
dures 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;
6 LEVY v. LEXINGTON COUNTY

-- 6 of 19 --

F.2d at 934.5
In the case before us, the School Board alleges several
errors below. It argues that the district court erred by consid-
ering only the elections that took place between 1994 and
2004. It further argues that the district court’s application of
the second and third Gingles factors was based on factual and
legal errors.6 We discuss each argument in turn.7
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; and
7. the extent to which members of the minority group have been
elected to public office in the jurisdiction.
[8.] whether there is a significant lack of responsiveness on the
part of elected officials to the particularized needs of the mem-
bers of the minority group[; and]
[9.] whether the policy underlying the state or political subdivi-
sion’s use of such voting qualification, prerequisite to voting, or
standard, practice or procedure is tenuous.
S.Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S. Code
Cong. & Admin. News 177, 206-07 (footnote call numbers omitted) (cited
in Collins v. City of Norfolk, Va. ("Collins II"), 883 F.2d 1232, 1236 n.3
(4th Cir. 1989)).
5We recognize that Collins v. City of Norfolk, Va., 768 F.2d 572 (4th
Cir. 1985) was technically the first Collins case. Lewis, however, desig-
nated Collins v. City of Norfolk, Va., 816 F.2d 932 (4th Cir. 1987) as "Col-
lins I" and Collins v. City of Norfolk, Va., 883 F.2d 1232 (4th Cir. 1989)
as "Collins II." 99 F.3d at 604, 611. Thus, we adopt those designations
here for the sake of consistency and clarity.
6At a hearing held on September 9, 2004, the district court held that
Plaintiffs had established the first Gingles factor, so its analysis in the
Order focused solely on the second and third factors.
7The School Board also contends that the district court, in its totality of
the circumstances analysis, (1) failed to consider unrebutted evidence in
7 LEVY v. LEXINGTON COUNTY

-- 7 of 19 --

A.
We first review the School Board’s contention that the dis-
trict court wrongly limited its analysis to elections that took
place between 1994 and 2004. The School Board insists that
the district court should have allowed into the record the
results from the 2006 and 2008 elections. As noted above,
although the School Board moved to supplement the record
with the 2008 election results after the case had been submit-
ted for decision, the district court denied this motion in a
paperless order almost two months after issuing the Order. In
doing so, the court gave only this explanation: "[T]he interests
of justice are best served by closing the record." J.A. 14. The
School Board then moved for reconsideration, asking the
court to consider both the 2006 and the 2008 elections. The
court denied that motion as well.
It is within the district court’s discretion to reopen a case
to admit new evidence.8 See Dent v. Beazer Materials and
Servs., Inc., 156 F.3d 523, 533 (4th Cir. 1998). When decid-
ing whether a district court abused this discretion, we consider
whether (1) the evidence sought to be introduced is especially
important and probative; (2) the moving party’s explanation
the record showing that minority candidates lost for reasons other than
White bloc voting; (2) improperly discounted the post-litigation election
of Cora Lester in 2004 due to "special circumstances"; and (3) failed to
consider substantial record evidence as to the Senate Report factors that
supports the rejection of Plaintiffs’ claim. Because we remand on other
bases, we do not find it necessary to address these arguments.
8The School Board did not seek to reopen the case but instead moved
to supplement the record. To allow one side to supplement the record
without allowing the opposing party the opportunity to contest the admis-
sibility, reliability, and accuracy of the new evidence, and to offer rebuttal
evidence, would implicate due process concerns. See, e.g., Greene v.
McElroy, 360 U.S. 474, 497 & n.25 (1959). However, the district court
could have granted the School Board’s request on the condition that Plain-
tiffs would be allowed to test and rebut the new evidence. Thus, the
School Board’s request did not necessarily offend due process.
8 LEVY v. LEXINGTON COUNTY

-- 8 of 19 --

for failing to introduce the evidence earlier is bona fide; and
(3) reopening will cause undue prejudice to the nonmoving
party. Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 746
(1st Cir. 1995); see also United States v. Abbas, 74 F.3d 506,
510-11 (4th Cir. 1996) (considering similar factors in a crimi-
nal matter); Gibson v. Mayor and Council of Wilmington, 355
F.3d 215, 229 (3d Cir. 2004) (considering similar factors, "in-
cluding the burden that will be placed on the parties and their
witnesses, the undue prejudice that may result from admitting
or not admitting the new evidence, and considerations of judi-
cial economy"). "[I]t is generally understood that a trial court
abuses its discretion if its refusal to reopen works an ‘injus-
tice’ in the particular circumstances." Rivera-Flores, 64 F.3d
at 746 (citing Gas Ridge, Inc. v. Suburban Agric. Props., Inc.,
150 F.2d 363, 366 (5th Cir. 1945)).
We are persuaded that the district court’s failure to consider
the 2006 and 2008 election results in the Order "work[ed] an
‘injustice’ in the particular circumstances."9 Id. Those elec-
toral results are important and probative given that an
African-American candidate was elected to the School Board
in 2008. In addition, the School Board had a bona fide expla-
nation for failing to introduce this evidence earlier: such evi-
dence was not available until after the bench trial concluded.
Finally, although we are sympathetic to Plaintiffs’ wish to
have this case resolved sooner rather than later, we find that
concern counterbalanced by the district court’s delay of
almost three years in issuing the Order. Because of that delay,
two more relevant elections occurred; on such facts, we can-
not say Plaintiffs still retain the same interest in a timely dis-
position as they would have had before the 2006 election.
Thus, reopening the case here will cause no undue prejudice
9Although the School Board only moved to introduce the results of the
2008 election, we agree with the district court’s holding that "the 2008
school board election results would be of little benefit to the court absent
the inclusion of the relevant information from both the 2006 and the 2008
elections in the expert analysis." J.A. 14.
9 LEVY v. LEXINGTON COUNTY

-- 9 of 19 --

to Plaintiffs, so long as they are afforded an opportunity to
test and rebut the evidence presented by the School Board.
See Collins II, 883 F.2d at 1243 (although trial was originally
held in 1984, subsequent elections were considered by both
trial court and appellate court); Westwego Citizens for Better
Gov’t v. City of Westwego, 906 F.2d 1042, 1045 (5th Cir.
1990) ("[G]iven the long term nature and extreme costs neces-
sarily associated with voting rights cases, it is appropriate to
take into account elections occurring subsequent to trial.").
Accordingly, we vacate the district court’s Order and remand
for further proceedings in which the parties will have the
opportunity to present the 2006 and 2008 election results.10
10The School Board also argues that the district court should have con-
sidered the results from the 1980-1993 elections. Although we remand for
further consideration of the 2006 and 2008 elections, the district court is
not required to consider the pre-1994 elections. The complaint challenged
only the present voting system, and "[e]lections held under a significantly
different electoral structure" are less probative in a Section 2 analysis. See
NAACP v. City of Niagara Falls, N.Y., 65 F.3d 1002, 1012 (2d Cir. 1995).
The present electoral system here is significantly different from the pre-
1994 system. Not only was the election moved from February to Novem-
ber, resulting in voter turnout quadrupling, but the number of candidates
elected at each election also changed.
Still, the School Board makes much of the fact that the district court
only considered six elections in its analysis, and thus argues that, pursuant
to our holding in Lewis and the Second Circuit’s in Niagara Falls, the dis-
trict court should have considered the results from the 1980-1993 elec-
tions. Neither Lewis nor Niagara Falls specifies how many elections a
court must review to analyze a Section 2 violation. Lewis declined to set
a bright-line standard and chose to "leave to another day the question of
precisely how many elections must be considered in order for a district
court’s conclusions to be adequately supported." 99 F.3d at 611. Admit-
tedly, Lewis implied that a majority of elections should be considered, id.
at 608, and Niagara Falls did characterize five elections as a slim record,
65 F.3d at 1012. However, the district court here considered all elections
since 1994, in compliance with Lewis. Also, although six elections may be
a slim record, Niagara Falls does not require a district court to consider
exogenous elections if they were held under significantly different elec-
toral systems. Thus, we are not persuaded the district court committed
legal error by excluding from its Section 2 analysis the 1980-1993 elec-
tions.
10 LEVY v. LEXINGTON COUNTY

-- 10 of 19 --

B.
Because we are remanding the case, we will address other
issues raised on appeal that are likely to recur. See Elm Grove
Coal Co. v. Dir., O.W.C.P., 480 F.3d 278, 299 n.20 (4th Cir.
2007) ("We choose to address this discovery issue because it
is likely to arise on remand."). Specifically, we review the
School Board’s arguments that the district court erred in its
application of the second and third Gingles factors.
1.
We first consider whether the district court erred in its anal-
ysis of the third Gingles factor.11 Under this factor, the court
must determine whether the majority votes as a bloc to enable
it to usually defeat the minority’s preferred candidate.
Gingles, 478 U.S. at 51. To do so, the court must first identify
those individuals who constitute minority-preferred candi-
dates of choice, and then analyze whether those candidates are
usually defeated by majority White bloc voting. Collins II,
883 F.2d at 1237; see Lewis, 99 F.3d at 611-14 (laying out the
proper criteria for identifying minority-preferred candidates of
choice). The School Board argues that the district court made
several errors in its identification of the minority-preferred
candidates of choice. We address each alleged error in turn.
a.
First, the School Board challenges the method that the dis-
trict court employed to determine whether a candidate who
received less support from minority voters than an unsuccess-
11We address the third Gingles factor before the second because doing
so makes for ease of analysis in this case. The factors are conjunctive, but
there is no requirement that we analyze them in alphanumerical order. See,
e.g., Voinovich v. Quilter, 507 U.S. 146, 158 (1993) (disposing of the
plaintiffs’ Section 2 claim without analyzing the first Gingles pre-
condition, since the Court found that the plaintiffs had failed to meet the
third pre-condition).
11 LEVY v. LEXINGTON COUNTY

-- 11 of 19 --

ful first choice may nevertheless be deemed a minority-
preferred candidate of choice in a multi-seat election. Pursu-
ant to Lewis,
if the unsuccessful candidate who was the first
choice among minority voters did not receive a "sig-
nificantly higher percentage" of the minority com-
munity’s support than did other candidates who also
received a majority among minority voters, . . . then
the latter should also be viewed by the district court
as minority-preferred candidates.
99 F.3d at 612. Lewis, however, left the term "significantly
higher" undefined.
In the Order, the district court defined this term based on
Collins II, 883 F.2d at 1238. The court read Collins II as find-
ing that two successful candidates (with 58.2 percent and 56.5
percent of the African-American vote) were not minority-
preferred candidates of choice because they received signifi-
cantly less minority support than the unsuccessful top minor-
ity vote-getter, who received 73.4 percent of the African-
American vote. Noting that the differences between the
unsuccessful candidate and the successful candidates were
15.2 and 16.9 percentage points respectively, the district court
proceeded to classify any candidate in the present case 15 per-
centage points or more below the unsuccessful top vote-getter
as having received significantly less minority support than the
unsuccessful top minority vote-getter.
We disagree with the district court’s reasoning. Although a
15-percentage-point differential may be the appropriate stan-
dard, it is not necessarily so. Interpreting analogous language,
Lewis explained that "[t]he level of support that may properly
be deemed ‘substantial’ will vary, of course, depending on the
number of candidates on the ballot and the number of seats to
be filled." 99 F.3d at 614 n.11. As such, to determine whether
a candidate who received less support from minority voters
12 LEVY v. LEXINGTON COUNTY

-- 12 of 19 --

than an unsuccessful first choice may be deemed a minority-
preferred candidate of choice in a multi-seat election, a dis-
trict court should first consider the number of candidates on
the ballot and the number of seats to be filled.12 Only then
should the court make a determination of whether the unsuc-
cessful top minority vote-getter received a significantly higher
percentage of the minority community’s support than did
other candidates. The district court, however, did not under-
take this type of analysis. Thus, we agree with the School
Board that the district court’s candidate-of-choice analysis
rests on an improper understanding of the term "significantly
higher".
b.
Next, the School Board argues that the district court, in
applying the third Gingles factor, erred by assuming that no
minority-preferred candidates of choice can come from an
election in which no candidate received a majority of the
minority vote. The district court reached this conclusion after
determining that neither Lewis nor Collins II establishes a
construct for analyzing elections in which no candidate
received a majority of the minority vote. Accordingly, the dis-
trict court concluded that the 2002 election was devoid of
minority-preferred candidates of choice because "no candi-
date received a majority of the black vote" during that elec-
tion. J.A. 754-55.
The district court’s reasoning assumes that a person without
support from over 50 percent of minority voters cannot be
deemed a minority-preferred candidate. Lewis, however, said
12We recognize that in Collins II, just as here, voters filled either three
or four seats each election, depending on the year. 883 F.2d at 1239. How-
ever, the number of candidates that sought the open seats in Collins II dif-
fers from that in the case at hand. Thus, while a 15-percentage-point
differential was the appropriate standard in Collins II, and may be so here,
we cannot conclude that without first considering the number of candi-
dates on the ballot and the number of seats to be filled.
13 LEVY v. LEXINGTON COUNTY

-- 13 of 19 --

the opposite: "[W]e do not believe that the mere failure to
achieve a threshold of 50% in a multi-candidate election nec-
essarily means that a candidate cannot be viewed as a black-
preferred candidate." 99 F.3d at 613 n.10. In that case, we
considered the treatment of second- and third-place finishers
behind a successful, minority-preferred candidate of choice
who had received more than 50 percent of the minority vote.
We ultimately found that in a multi-seat election,
[c]andidates who receive less than 50% of the minor-
ity vote, but who would have been elected had the
election been held only among black voters, are pre-
sumed also to be minority-preferred candidates,
although an individualized assessment should be
made in order to confirm that such a candidate may
appropriately be so considered.
Id. at 614.
If such candidates can be considered minority-preferred
candidates of choice in an election in which the top vote-
getter received more than 50 percent of the vote, we see no
reason why a similarly popular candidate—one that would
have been elected had the election been held only among
African-American voters—should not also be considered a
minority-preferred candidate of choice in an election in which
no candidate received 50 percent or more of the minority vote.13
See, e.g., Ruiz v. City of Santa Maria, 160 F.3d 543, 552 (9th
Cir. 1998). Thus, we find that in elections in which no candi-
date receives a majority of the minority vote, a candidate may
still be labeled a minority-preferred candidate of choice if that
candidate would have been elected had the election been held
13Under this construct, for example, William Berry and Stephen Pad-
gett, the top minority vote-getters in 2002 with 48 percent of the African-
American vote, could potentially be classified as minority-preferred candi-
dates of choice if an individualized assessment supports that conclusion.
14 LEVY v. LEXINGTON COUNTY

-- 14 of 19 --

only among minority voters, so long as an individualized
assessment of that candidate supports that conclusion.14
c.
Finally, the School Board contends the district court erred
in adopting Plaintiffs’ expert’s report over their own expert’s
report to ascertain the minority-preferred candidates of
choice. To determine which candidates were minority pre-
ferred, Plaintiffs’ expert, Dr. John Ruoff, analyzed elections
for the School Board from 1986 to 2004 using three statistical
methods of analysis: homogenous precinct, ecological regres-
sion, and ecological inference. The School Board’s expert, Dr.
David Epstein, analyzed the same data using the ecological
inference method. Ruoff concluded that there were eight
minority-preferred candidates of choice for the School Board
between 1994 and 2004. Of those eight, one was elected to
the School Board. By contrast, Epstein concluded that there
were seventeen minority-preferred candidates of choice dur-
ing that period. Of those seventeen, six were elected to the
School Board.
The district court favored Ruoff’s results over Epstein’s,
but its reasons for this selection are unclear.15 The district
court explained its choice, in total, as follows:
14In those circumstances, the district court should ensure that the candi-
date can be fairly considered a representative of the minority community.
In addition to the bare statistics, the district court may consider testimony
from political observers and the candidates themselves to determine
whether those candidates may be labeled minority-preferred candidates of
choice. See Collins II, 883 F.2d at 1238.
15The School Board suggests that the district court preferred Ruoff’s
data over Epstein’s because Epstein "changed his definition of candidate
of choice significantly during the course of litigation." J.A. 752. This argu-
ment is without merit. After finding Epstein had changed his definition of
candidate of choice several times, the district court rejected Epstein’s defi-
nition for "minority-preferred candidate of choice," not his data altogether.
15 LEVY v. LEXINGTON COUNTY

-- 15 of 19 --

The court finds more reliable Dr. Ruoff’s use of
three statistical methods of analysis—homogenous
precinct (HP), ecological regression (ER), and eco-
logical inference (EI)—as compared to Dr. Epstein’s
analysis utilizing only the EI method of analysis.
The court also finds persuasive Dr. Ruoff’s explana-
tions regarding the Ridge Road precinct.16 The court
[thus] adopts Dr. Ruoff’s statistical analysis.
J.A. 755-56 (footnote call number added).
We recognize that our role in reviewing the district court’s
reliance on Ruoff’s expert testimony is limited. In re Corru-
gated Container Antitrust Litig., 659 F.2d 1322, 1326 (5th
Cir. 1981); see also Collins I, 816 F.2d at 936 ("It is within
the trial court’s discretion to find that methodological flaws
undercut the probative value of a study so deeply as to render
it inadmissible."); Ludlow Corp. v. Textile Rubber & Chem.
Co., Inc., 636 F.2d 1057, 1060 (5th Cir. 1981) ("The compe-
tency and qualifications required of expert witnesses is a mat-
ter committed to the broad discretion of the trial judge. . . .
When it sits without a jury, the trial court’s discretion is also
the sole determinant of the weight to be given expert testi-
mony.") (internal citations omitted). Nevertheless, there are
problems with Ruoff’s data that do not appear to have been
considered by the district court. For example, Ruoff’s choice
to exclude the Ridge Road precinct from his analysis appears
16Ruoff explained that Ridge Road, a particularly large, overwhelmingly
White precinct, was an outlier and thus required special treatment. At the
time of the 2004 election, Ridge Road contained 1,087 voters, only 22 (2
percent) of whom were African-American. Ruoff opined that, since the
Ridge Road precinct overwhelmingly consists of White voters, including
this precinct in the regression analysis would have overestimated the per-
cent of African-American votes in favor of minority-preferred candidates.
Rather than simply discarding the votes from the Ridge Road precinct,
Ruoff added them back into the analysis after separately completing the
ecological regression and ecological inference estimates for the remaining
precincts.
16 LEVY v. LEXINGTON COUNTY

-- 16 of 19 --

suspect. Ruoff used what he termed the "interocular trauma"
or "eyeball" test to identify outliers, although other statistical
methods of analysis of outliers were available. In essence, he
looked at the scatter plots he prepared and assessed whether
they offended his eyesight. Ruoff admitted that other pre-
cincts qualified under his "eyeball" test as outliers, but he
explained that he chose not to take those other precincts out
because it would be nearly impossible to "add [them] back in"
as he did with Ridge Road. J.A. 386. This is not acceptable.
The district court failed to acknowledge or explain what
appear, on review, to be the limitations of Ruoff’s report.
Although "absolute perfection on the base statistical data is
not to be expected, a trial court should not ignore the imper-
fections of the data used nor the limitations of statistical anal-
ysis." Overton v. City of Austin, 871 F.2d 529, 539 (5th Cir.
1989). Here, the district court gave no explanation why one
expert’s data was preferred over the other’s, aside from the
fact that one expert used more methods of analysis than the
other. The district court’s failure to articulate why it preferred
Ruoff’s data over Epstein’s does not allow for a proper review
of the district court’s findings. See Clay v. Bd. of Educ. of St.
Louis, 90 F.3d 1357, 1362 (8th Cir. 1996) (finding that the
district court did not clearly err in accepting one expert’s anal-
ysis over the other where the court "cited several reasons for
discounting the Plaintiffs’ expert analysis").
For these reasons, while we do not necessarily agree with
the School Board that the district court erred in adopting
Ruoff’s report, we also cannot say with certainty that the dis-
trict court properly adopted Ruoff’s expert report in its
candidate-of-choice analysis.17
17This is of particular concern given that had the district court preferred
Epstein’s data over Ruoff’s, the results of this case would likely have been
very different.
17 LEVY v. LEXINGTON COUNTY

-- 17 of 19 --

2.
We next consider the School Board’s contention that the
district court’s approach to the second Gingles factor rests on
error. Under the second Gingles factor, to determine whether
a minority group is politically cohesive, a court must ascertain
whether "a significant number of minority group members
usually vote for the same candidates." Gingles, 478 U.S. at
56. The School Board argues that the district court erred in its
determination of political cohesiveness for two reasons.
First, the School Board contends that the district court erred
in its political cohesiveness analysis by only considering
minority support for candidates which the court had already
classified as minority-preferred candidates of choice. We
agree. Given the district court’s assumption that a minority-
preferred candidate of choice needed to have over 50 percent
of minority support, the court’s approach logically guaranteed
a finding of cohesiveness.18
Second, the School Board contends that the district court
wrongly equated political cohesiveness with racial polariza-
tion, i.e., the tendency for voters to prefer candidates of their
same race, by emphasizing that "[e]ach of these candidates is
black." J.A. 739. We note that, although the existence of
racially polarized voting can establish that the minority group
is politically cohesive, see Collins I, 816 F.2d at 935-36; Cot-
tier v. City of Martin, 445 F.3d 1113, 1118 (8th Cir. 2006);
Cousin v. Sundquist, 145 F.3d 818, 826 (6th Cir. 1998); San-
chez v. Colorado, 97 F.3d 1303, 1312 & n.14 (10th Cir.
1996); Westwego Citizens for Better Gov’t v. City of West-
18For example, the district court determined that no minority-preferred
candidates of choice existed in the 2002 election because no candidate
during that election achieved more than 50 percent of the minority vote.
Thus, in its political cohesiveness analysis, the district court did not con-
sider the 2002 electoral results. Yet, the 2002 results presumably demon-
strate a lack of political cohesiveness—the very factor the district court
sought to establish under the second Gingles factor.
18 LEVY v. LEXINGTON COUNTY

-- 18 of 19 --

wego, 946 F.2d 1109, 1118 (5th Cir. 1991), the two issues are
quite distinct.19 As the Fifth Circuit has keenly observed,
"[t]hat a group’s voting behavior is racially polarized indi-
cates that the group prefers candidates of a particular race.
Political cohesion, on the other hand, implies that the group
generally unites behind a single political ‘platform’ of com-
mon goals and common means by which to achieve them."
Monroe v. City of Woodville, Miss., 881 F.2d 1327, 1332 (5th
Cir. 1989). Thus, minority voters may be racially polarized
but still lack political cohesion if their votes are split among
several different minority candidates for the same office. Id.
The district court does not appear to have recognized this distinc-
tion.20 Both issues warrant consideration on remand.
III.
For the foregoing reasons, we vacate the district court’s
February 19, 2009 order, and remand for further proceedings.
The outstanding motions are denied as moot.
VACATED AND REMANDED
19It is not necessary to prove racial polarization in order to find political
cohesiveness. As this court noted in Lewis, "to our knowledge, no court
has held that a white candidate cannot, as a matter of law, be a minority-
preferred candidate." 99 F.3d at 609.
20In addition, we note that in reviewing the level of support received by
minority-preferred candidates of choice in the various elections, the dis-
trict court failed to note the level of support African-Americans gave to
other candidates during those elections. See Monroe, 881 F.2d at 1332
("Crossover voting by a minority group does not preclude a finding of
political cohesiveness per se, but its presence is relevant.").
19 LEVY v. LEXINGTON COUNTY

-- 19 of 19 --