Butts v. City of New York

LUMBARD, Circuit Judge: The City of New York appeals from a judgment entered by Judge Brieant (S.D. N.Y.) following a bench trial, declaring that New York Election Law § 6-162 violates both the Equal Protection Clause of the fourteenth amendment to the U.S. Constitution, and Section 2 of the Voting Rights Act, 42 U.S.C. § 1973.1 Judge Brieant’s order permanently enjoined the City from giving effect to § 6-162, more commonly known as the “primary run-off law.” See 614 F.Supp. 1527, 1556. The City argues, first, that the district court clearly erred in finding that § 6-162 was enacted with a racially discriminatory purpose; and that therefore there is no Equal Protection violation. Second, the City argues that the district court’s finding of discriminatory effect sufficient to constitute a violation of the Voting Rights Act rests both on clearly erroneous factual findings, and on misapplication of legal standards. Because the record shows that the primary run-off law was never intended to deny minority voters — and does not have the effect of denying them — an equal opportunity to participate in the political process, we reverse. BACKGROUND Political observers are agreed that the adoption of the run-off law was prompted by the unusual results of the 1969 New York City mayoral election. In the Democratic primary that year, two candidates— Herman Badillo and Robert Wagner — split the votes of the party’s mainstream (Badil-lo receiving 28%, and Wagner 29%); as a result, the nomination went to Mario Proc-cacino (with 33% of the votes), who had run on a “safe streets” platform. Proccacino lost in the general election to incumbent John Lindsay, the nominee of the Independent and Liberal parties. In 1972, Democratic State Assemblymen Stanley Steingut and Albert Blumenthal sponsored a primary run-off law. The runoff bill speedily passed the State Senate by a vote of 49-8, and the Assembly by a vote of 104-5. Governor Rockefeller subsequently signed it into law. As amended in 1976 and 1978, the law provides that if no candidate for the offices of Mayor, City Council President, or Comptroller of the City of New York receives 40% or more of the votes cast in a party’s general primary, then the Board of Elections must conduct a run-off between the two top vote-getters in the general primary.2 Senator Bloom and other proponents of the bill argued that it was designed to avoid a repeat of the 1969 “fluke” Proccaci-no result, when a candidate who clearly did [144] not represent the views of a majority of the members of his party secured the nomination because of the vicissitudes of vote division. The bill's few opponents in the Senate argued that it could have the effect of preventing blacks and Hispanics from ever electing their own candidates to the three city wide offices covered by § 6-162. They argued, first, that the underlying motive for the law was the “Badillo scare” of 1969 — that is, his garnering of 28% of the votes in the initial primary. Second, they pointed out that the 40% threshold figure was just above the percentage of black and Hispanic combined population in New York City at the time. Despite this criticism, and following strong rebuttal by the bill’s proponents, the Senate passed it overwhelmingly. It is important to note that Senator Garcia — a leading Hispanic legislator and a Badillo supporter for the 1973 mayoralty — spoke in favor of § 6-162 in the Senate debates, and claimed that then-Congressman Badillo supported the bill. Furthermore, the bill passed in the Assembly virtually without opposition, all five black and Hispanic Assemblymen present voting aye. The original version of § 6-162 survived constitutional challenge in Proccacino v. Board of Elections, 73 Misc.2d 462, 341 N.Y.S.2d 810 (Sup.Ct.N.Y.Co.1973). Proc-cacino argued that the law violated the “Home Rule” provision of the New York State Constitution (Art. IX, § 2(b)), which allows municipalities to pass on State laws directed at the municipalities’ “property, affairs, or government”; he also argued that the law violated the Due Process and Equal Protection Clauses of the fourteenth amendment to the U.S. Constitution. The court rejected the home rule claim on the ground that the state legislature had acted validly with regard to a matter of state concern. See 73 Misc.2d at 464-67, 341 N.Y.S.2d at 813-17 (citing Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705 (1929)). As to the federal challenges, the court first rejected Proccacino’s claim that § 6-162 deprived him of his due process rights as a voter, holding that the law embodied a rational process aimed at better reflecting “a more valid consensus of the party members.” 73 Misc.2d at 470, 341 N.Y.S.2d at 818. Second, the court rejected Proccaci-no’s claim that, because it applied only to New York City, the law violated the Equal Protection clause. The court noted that the application to New York City alone was reasonable. See 73 Misc.2d at 470, 341 N.Y.S.2d at 818-19. The run-off law has been triggered in three New York elections. In the 1973 mayoral race, the initial standings in the primary were: Beame 34.5% Badillo 29.0% Biaggi 20.5% Blumenthal 16.0% The run-off totals were: Beame 61.0% Badillo 39.0% In 1977, seven candidates sought the Democratic mayoral nomination. The results of the initial primary were: Koch 20.0% Cuomo 19.0% Beame 18.0% Abzug 16.5% Sutton 14.0% Badillo 11.0% Harnett 1.5% Ed Koch defeated Mario Cuomo in the runoff, 55% to 45%. Also in 1977, five candidates sought the Democratic nomination for City Council President. The initial standings in the primary were: O’Dwyer 31.0% Bellamy 25.0% Burden 20.0% Hirschfeld 17.0% Stavisky 7.0% In the run-off, Carol Bellamy overtook incumbent Paul O’Dwyer, and won with 59% of the vote. Plaintiffs Rev. Calvin Butts and Digna Sanchez, who represent a class consisting of all present and/or potentially eligible black and Hispanic voters residing in New York City, filed this action on October 15, 1984. On December 21, 1984, the Attorney General submitted a consent order dismissing the State and the Governor as defend [145] ants.3 The City and the Board of Elections remain as defendants. Judge Brieant presided over a bench trial from June 3 to June 10, 1985. To support their contention that § 6-162 was intended to and does make it more difficult for a black or Hispanic candidate to receive a party’s nomination, the plaintiffs offered the testimony of three leading minority political figures — Badillo, former Manhattan Borough President Percy Sutton, and former Lieutenant Governor Basil Paterson— and also the testimony of experts in the field of New York City politics. Defendants called their own expert witness, and offered extensive documentary evidence. On August 13, 1985, Judge Brieant found for the plaintiffs; subsequently, in a Final Order dated August 16, he enjoined the defendants from conducting any run-offs pursuant to § 6-162. At the defendants’ request, we expedited the appeal. The district court first found for the plaintiffs on their claim under the Voting Rights Act. The court noted that Section 2 of the Act creates a private right of action for citizens to challenge allegedly discriminatory voting practices or procedures. Judge Brieant pointed out that intent is not a prerequisite to a Section 2 violation; instead, a plaintiff can prove a violation by demonstrating the existence of some combination of nine objective factors. In accordance with the Supreme Court’s direction in Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), Judge Brieant focused his analysis on the “totality of circumstances,” using the objective factors as a guide. Crediting the plaintiffs’ documentary evidence and their experts, the court found that the plaintiffs had met their burden of proof with respect to six of the nine typical objective factors. Judge Brieant stated that, in the “totality of circumstances,” § 6-162 diminishes minorities’ ability to participate in the political process; he held, therefore, that the law violates Section 2. He went on to find, alternatively, that § 6-162 violates the Equal Protection Clause because it was enacted with the purpose of diminishing minority participation in the political process. In making the latter finding, Judge Brieant relied upon the legislative history of § 6-162, especially the statements of the few State Senators who spoke out against it in debate as a veiled attempt to ensure that minority candidates could never achieve citywide office in New York City. Judge Brieant argued that this view fit in with what he considered to be the “anti-Badillo” sentiment that had begun in 1969 and culminated in 1972, on the eve of the next mayoral race. DISCUSSION Constitutional Claim —In order to hold that a law differentiates among races in violation of Equal Protection, the court must find that the law was passed — at least in part — with a racially discriminatory purpose. See, e.g., Rogers v. Lodge, supra, 458 U.S. at 617, 102 S.Ct. at 3275 (1982); Mobile v. Bolden, 446 U.S. 55, 66-67, 100 S.Ct. 1490, 1499, 64 L.Ed.2d 47 (1980). This finding requires a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977). Because in Judge Brieant’s view the legislative history of § 6-162 supplied “ample” direct evidence of discriminatory intent, he did not base his finding of such intent on any circumstantial evidence or on the commonly-used objective factors outlined in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (en banc), aff'd on other grounds, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam). The City of New York argues, and we agree, that the district court’s finding of discriminatory intent was clearly erroneous. [146] Judge Brieant began his analysis by-considering the circumstances surrounding the proposal of § 6-162. Although hé acknowledged that the bill may have been prompted in part by the Proccacino “debacle” of 1969, he concluded that it was mainly the result of the “Badillo scare” in the 1969 primary; he gave significant weight to Badillo’s testimony that § 6-162 was called the “anti-Badillo bill” in some circles. Noting that Assemblymen Steingut and Blumenthal had originally sponsored the run-off bill, Judge Brieant referred to a dirty trick that Steingut allegedly played on Badillo in the 1973 run-off campaign. Although he conceded that this testimony was the “rankest hearsay,” he nevertheless used the story to impugn Steingut’s motives in proposing § 6-162. Finally, the district court erroneously stated that Stein-gut and Blumenthal both were “regular Democrats,” implying that they sought to weaken the voices of reform in the party. In fact, Blumenthal was an independent Democrat who supported Badillo’s mayoral candidacy in 1973. Judge Brieant also placed great weight on memoranda written by concerned parties who opposed the bill, primarily on budgetary and logistical grounds. First, the court cited a letter written by then-Secretary of State John Lomenzo, who objected because of logistics and the home rule and fourteenth amendment problems that were later rejected in the case of Proccacino, supra. Second, the court cited then-Mayor Lindsay, who wrote that he supported the “concept” of a run-off, but criticized § 6-162 as an unnecessary expenditure of city funds. Third, it cited both the New York City Board of Elections and the New York State County Officers Association, which objected because of cost and logistical burdens. Judge Brieant conceded, on the other hand, that both the Citizens Union of the City of New York (a public-interest group) and the Association of the Bar of the City of New York had advised the Governor of their support for the bill. The court might also have noted that the media generally supported the bill. This support is demonstrated in part by several New York Times articles reproduced in the amicus brief of the State of New York. Thus, no clear conclusions can be derived from the public discussion of the run-off bill at the time; indeed, the district court’s finding of discriminatory motive seems to rest primarily on statements made in the course of the Senate debate over § 6-162. Judge Brieant placed particular emphasis on the remarks of two black Senators, Gali-ber and Stewart. Senator Galiber argued that the run-off bill would prevent a minority candidate from winning a city-wide election through a plurality and, consequently, from ever winning such an office. Senator Stewart opposed the law on the same grounds, arguing that the run-off was bound to degenerate into a race-based choice, and would thus extinguish the possibility of a black/Hispanic coalition candidate winning by plurality. He added that, in his view, the 40% threshold had been chosen because the black and Hispanic combined population then comprised 30% of New York City, and thus the higher figure shielded the offices from a minority coalition candidate. We find more persuasive the contrary evidence in the record provided by the remarks of the bill’s proponents. First, responding to Senator Galiber, Senator Bloom stated that the purpose of the runoff was to bolster the weakening party system by ensuring that the candidate who emerged from the primary truly represented “the thinking of the majority.” The court mistakenly characterized this statement as probative of racial motivation, interpreting the word “majority” to mean “racial majority.” This is clearly not what Senator Bloom meant. His statements elsewhere in the debate clarify his view that the bill was not intended to and would not have the effect of weakening the voting power of racial — as opposed to ideological — minorities. Second, responding to Senator Stewart, Senator Brydges reiterated that the purpose of the bill was to ensure representation for the ideological majorities of political parties, and empha [147] sized his opinion and hope that a minority candidate would one day profit from the run-off law. The members of the Senate overwhelmingly passed the bill. The results in the Assembly — where the bill was virtually uncontested — were the same, with all 5 minority Assemblymen present voting in favor of the law. The district court, oddly, found this support probative of racial animus in light of the evidence before the legislature that the law would be costly and logistically difficult to implement. The district court made no mention of the support that the bill received from Senator Garcia (a Hispanic), and Garcia’s statement during the debate that Badillo supported the bill, even though this evidence strongly undercuts the notion that § 6-162 was intended as an “anti-Badillo” measure. The court cited the “alacrity” with which the bill moved through the Assembly and Senate (two months), and Governor Rockefeller’s quick approval, as somehow probative of the discriminatory intent behind the bill. It is a venerable principle that the legislature is presumed to act constitutionally. See, e.g., Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209, 55 S.Ct. 187, 191, 79 L.Ed. 281 (1934); Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129, 135-42 (1893). This rule was recently reaffirmed in Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983), where the Court noted that courts should be “reluctant to attribute unconstitutional motives to the state, particularly where a plausible [constitutional] purpose may be discovered from the face of the statute.” Id. at 394-95, 103 S.Ct. at 3066. Despite this, in analyzing § 6-162, the district court minimized evidence probative of the legitimacy of the law, and as a result drew all inferences against its constitutionality. The events leading up to passage of the bill clearly support an inference of legitimate motive. The Proccacino nomination badly hurt the Democratic party in New York City, and such fluke results were likely to recur as the party system further deteriorated and a broader field of candidates emerged. The application of § 6-162 solely to city wide offices in New York speaks primarily to the ideological diversity within the City and the importance of those offices. The 40% threshold, which Judge Brieant called “diabolic,” was obviously chosen because Proccacino received 33% of the vote in 1969, not because of the minority population figures in New York. Finally, the speed with which the bill passed both houses demonstrates its broad-based support rather than any “nefarious” motives; this broad support is also evident from the strong minority legislative vote in favor of the bill. At its core, the district court’s holding seems to rest primarily on the statements, in debate, of the bill’s opponents. The Supreme Court has, however, repeatedly cautioned — in the analogous context of statutory construction — against placing too much emphasis on the contemporaneous views of a bill’s opponents. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204 n. 24, 96 S.Ct. 1375, 1386 n. 24, 47 L.Ed.2d 668 (1976); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95, 71 S.Ct. 745, 750-51, 95 L.Ed. 1035 (1951). Rather, “[i]t is the sponsors that we look.to when the meaning of the statutory words is in doubt.” Schwegmann Bros., 341 U.S. at 394-95, 71 S.Ct. at 750-51; see N.L.R.B. v. Fruit & Vegetable Packers, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129 (1964). And, in fact, the legislative debates surrounding § 6-162 are filled with lengthy speeches by the law’s proponents attesting to its legitimate ideological purpose; there is not a single remark by any proponent of the legislation that so much as hints at any improper purpose. We conclude that the speculations and accusations of the run-off law’s few opponents simply do not support an inference of the kind of racial animus discussed in, for example, Arlington Heights, supra, 429 U.S. at 265-68, 97 S.Ct. at 563-65. Accordingly, we hold that the finding of discriminatory intent in the passage of [148] § 6-162 is clearly erroneous. New York City’s run-off law does not violate the Equal Protection Clause. Voting Rights Act Claim — The Voting Rights Act, as amended in 1982, provides that a violation of section 2 exists if based on the totality of circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity ... to participate in the political process and to elect representatives of their choice_ 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). The legislative history of the 1982 amendments sets forth a list of objective factors, derived from the decision in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), that is meant to aid courts in evaluating challenged laws. See S.Rep. No. 97-417, reprinted in 1982 U.S.Code Cong. & Ad.News 177, 207-08. Judge Brieant considered these factors and the case law interpreting them; he found that the plaintiffs had met their burden by demonstrating that § 6-162 violated -six of the factors, and therefore, in the “totality of circumstances”, violated section 2 of the Act. Our central disagreement with the district court’s interpretation of the Voting Rights Act concerns the kind of electoral arrangements that can violate the Act. There are two basic ways in which members of a class of citizens may have “less opportunity ... to participate in the electoral process.” There may either be restrictive practices that deter members of the class from voting, or electoral arrangements that diminish a class’s opportunity to elect representatives in proportion to its numbers. Although the Act makes clear that a class has no right to elect its members by numerical proportion, the class does have a right to an opportunity, equal to that of other classes, to obtain such representation. In the context of elections for multi-member bodies, equal opportunity can be denied in a variety of ways. It would clearly violate the Act for a jurisdiction to promote class-based malapportionment by creating electoral districts with smaller populations in areas with majority voters, and with larger populations in areas with minority voters. An only slightly more subtle violation would be class-based gerrymandering: diluting the voting power of a minority area by splitting it into two or more electoral districts. A less obvious device is the use of at-large elections instead of single-member districts, which may have the effect of denying areas with large concentrations of minority voters the opportunity to pool their strength and elect members of their class from such areas. See, e.g., City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Regester, supra. A run-off requirement can exacerbate the unfair effect of at-large voting for a multi-member body, and has been invalidated in that context. See City of Rome, supra. We cannot, however, take the concept of a class’s impaired opportunity for equal representation and uncritically transfer it from the context of elections for multi-member bodies to that of elections for single-member offices. There can be no equal opportunity for representation within an office filled by one person. Whereas, in an election to a multi-member body, a minority class has an opportunity to secure a share of representation equal to that of other classes by electing its members from districts in which it is dominant, there is no such thing as a “share” of a single-member office. The distinction is implicit in City of Port Arthur v. United States, 459 U.S. 159, 103 S.Ct. 530, 74 L.Ed.2d 334 (1982), where the Court struck down a run-off requirement that Port Arthur had appended to its at-large voting system for seats on the multi-member city council, but made no mention of a similar run-off requirement for the election of mayor. The latter runoff was not even challenged. [149] Of course, it is possible to deny minority members an equal voice in filling a single-member office; this could occur, for example, if the office were chosen by a convention of delegates or a council of office-holders that had been selected on a basis that denied class members an equal opportunity to secure representation in the convention or council. But so long as the winner of an election for a single-member office is chosen directly by the votes of all eligible voters, it is unlikely that electoral arrangements for such an election can deny a class an equal opportunity for representation. We need not determine whether such opportunity could ever be denied in the context of an election to a single-member office. It suffices to rule in this case that a run-off election requirement in such an election does not deny any class an opportunity for equal representation and therefore cannot violate the Act. The rule in elections for single-member offices has always been that the candidate with the most votes wins, and nothing in the Act alters this basic political principle. Nor does the Act prevent any governmental unit from deciding that the winner must have not merely a plurality of the votes, but an absolute majority (as where run-offs are required when no candidate in the initial vote secures a majority) or at least a substantial plurality, such as the 40% level required by § 6-162. The plaintiffs contended explicitly at oral argument, and the district court appears to have implicitly assumed, that the Act condemns any electoral arrangement that makes it more difficult for a minority class to elect one of its members to office. That is not the standard for determining violations of the Act.4 The point is illustrated by City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975), where annexation of white suburbs was held not to violate the Act, even though it made it more difficult for racial minorities to win elections. Applying the proper standard for determining whether a voting procedure even requires an analysis under the Section 2 objective factors, we believe that § 6-162 does not trigger such an analysis. First, the New York run-off law merely provides that the nominees for three City offices traditionally elected by a majority or large plurality actually represent the views of a majority or large plurality of their parties’ voters. It is possible that the run-off law may make it harder for the preferred candidate of a racial minority — or an ideological minority — to win a party’s nomination, but, as we have noted, the Act is concerned with the dilution of minority participation and not the difficulty of minority victory. See also City of Richmond, supra. Second, in any event, the bill has not yet had any negative effect on a minority candidate; indeed, it is not at all clear which way the law will cut — it may help a minority candidate to win nomination.5 [150] The district court suggested that the added expense of a run-off would inevitably hurt minority candidates, who have more difficulty raising campaign funds. We note, however, that the run-off in the 1977 primary for City Council President allowed Carol Bellamy — who seemed something of an “outsider” at the time — to overtake incumbent Paul O’Dwyer. In sum, the district court’s finding that the run-off law violates Section 2 of the Voting Rights Act cannot stand. Although the district court’s application of the “objective factors” test thus becomes immaterial, we feel compelled to note our view that some aspects of the court’s conclusion are highly questionable. Past Discrimination in Voting Rights —Judge Brieant found that past discrimination in New York voting had occurred to an extent made significant by Section 2 of the Act. We are not at all convinced that the slim proof on the issue of past discrimination in New York City will entitle it to much credit in the totality of circumstances. We also note the existence of mitigating factors that further diminish the force of this showing. Unlike many of the jurisdictions typically involved in Voting Rights Act cases, New York has ensured to black citizens the right to vote on the same terms as whites since 1874 (when the fifteenth amendment was ratified). Indeed, the City has taken affirmative steps since 1975 to encourage minority voting, including mail registration (N.Y. Election Law § 5-210(1)) and a Registration Task Force appointed by Governor Cuomo. Racial Appeals in Campaigning —Judge Brieant found that racial appeals had occurred in New York, citing various ads and flyers distributed during one election, the 1973 Beame-Badillo run-off. The source of this literature was and is unknown, however, and Beame denied any knowledge of it. Further, no evidence was shown of racial appeals in any other elections in which minorities were candidates, and the district court failed to note the absence of such evidence. See, e.g., Latino Political Action Committee v. City of Boston, 609 F.Supp. 739, 744-45 (D.Mass.1985) (considering lack of racial appeals). We believe that the isolated incident cited here may well be a slim reed upon which to rest a finding of significant racial appeals in campaigning. The Extent to which Minority Candidates Have Held Elective Offices — Judge Brieant acknowledged that minorities have had considerable success in winning office in New York City, but dismissed these victories as relating to “lesser offices” and not to the three positions at issue in this case; consequently, he found that this Section 2 factor had also been proved. We are not at all sure that the district court was correct in its decision to disvalue the electoral success that minorities have had in New York City simply because these victories did not involve the City’s three top offices. See, e.g., United States v. Marengo Cty. Comm., 731 F.2d 1546, 1572 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984) (considering evidence of electoral success in offices other than those at issue); NAACP v. Gadsden Cty. Sch. Bd., 691 F.2d 978, 983 (11th Cir.1982) (same). Indeed, this electoral success may well serve as a stark contrast to the jurisdictions involved in Marengo Cty. Comm., supra, and in Jones v. City of Lubbock, 727 F.2d 364, 368 (5th Cir.1984), in which minorities had had virtually no representatives elected, and were not likely to in the future. [151] Tenuous State Policy — The district court found that the state policy behind the run-off law is tenuous, and thus that plaintiffs met their burden of proof on this important Section 2 factor. The court’s view primarily rested, however, on its finding that § 6-162 was enacted with a discriminatory purpose. We have held that the judgment of discriminatory intent in the passage of the run-off bill is clearly erroneous, and we consequently believe that there is serious question as to the district court’s finding of tenuous state policy. We would also note that § 6-162, which was enacted with the motive of improving the workings of the party system in New York, appears quite distinguishable from the cases in which constituencies have suddenly adopted truly tenuous revisions to their traditional voting practices with no plausible motive other than to disenfranchise racial minorities. See, e.g., City of Rome, supra; Marengo Cty., supra. Effects of Discrimination in Other Areas —The legislative history of the amendments to Section 2 also suggests that courts consider whether minorities have traditionally been discriminated against in the areas of education, employment, and health, and whether those effects linger to the detriment of minority registration and voting. Judge Brieant noted the testimony to the effect that racial minorities have a lower socioeconomic status than whites in New York City, and that persons of such status tend to register and to vote less. Judge Brieant appears not to have included this factor in the overall totality analysis, and this is of course proper in the absence of any showing that the City has in any way caused these conditions through official discrimination. CONCLUSION Because we believe that the district court clearly erred in finding that the enactment of the run-off law was motivated by racial discrimination, we reverse the judgment that § 6-162 violates the Equal Protection Clause. We also reverse the judgment that the run-off law violates Section 2 of the Voting Rights Act. In our view, the Act is directed at procedures that deny racial minorities a fair opportunity to participate in the electoral process, and not at those that may have the result of reducing the likelihood that a minority will elect its preferred candidate to a single-member office. Consequently, § 6-162 does not have the effects that are proscribed by Section 2; indeed, is not yet clear whether the law will diminish the voting power of racial minorities in New York City. Finally, even if the objective factors test were to be applied, we note that we have serious doubts regarding the district court’s finding that the run-off law violates Section 2 when considered in the totality of circumstances. The judgment is reversed with direction to dismiss the complaint. Footnotes [2] The original version of the run-off bill differed from the present version in that it applied to any city in New York State that had a population of over one million. Because New York City was and is the only city in the state with such a population, the law’s scope of application is the same now as it was when originally enacted. [3] Although the Attorney General was provided on January 3, 1985, with the requisite statutory notice that plaintiffs were challenging the constitutionality of § 6-162, he did not appear in the district court to defend the bill. He has, however, submitted an amicus brief urging reversal. [4] The reasoning of the dissent ultimately reduces to this "difficulty of victory" test for application of Section 2. In Judge Oakes's view, § 6-162 makes it less likely that a minority candidate will be elected to one of the three offices the law covers, and therefore diminishes minority "participation” under the Voting Rights Act. As we have noted, we believe that this interpretation is supported neither by the legislative history of the Act, nor by the case law applying Section 2. [5] Actually, it is unsettled whether Section 2 can be violated at all in the absence of discriminatory results, although Judge Brieant seems to have assumed that it can. Whereas Section 5 of the Voting Rights Act (which applies only to "covered” jurisdictions) speaks in terms of the "tendency” to affect voting rights, Section 2 seems more concerned with discriminatory results. See S.Rep. No. 97-417, reprinted in 1982 U.S. Code Cong. & Ad.News 177, 246. It is undisputed that the run-off law has not yet had any actual discriminatory effect. On the contrary, the only minority candidate to whom it has applied, Herman Badillo, was given a second chance to win the mayoralty nomination in 1973 by virtue of the law. We believe that the plaintiffs can challenge § 6-162 solely on the basis of its anticipated effects. In the case of Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C.1984), prob. jur. noted, — U.S.-, 105 S.Ct. 2137, 85 L.Ed.2d 495 (1985), the district court held that a Section 2 case may be brought in advance of any harmful results. See id., 590 F.Supp. at 363, citing White v. Reges-ter, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). It is true that Regester is distinguishable [150] from this case because, although the Regester Court struck down an at-large system in advance of its operation, the system there had merely been reinstated and had previously operated in a discriminatory fashion. Nonetheless, we agree with Gingles and its interpretation of Regester. If we read Section 2 to require actual harmful effects, no one could challenge the runoff law until it had in fact caused the defeat of a minority candidate who won in the initial primary. This would be improper because, as the Gingles court pointed out, discriminatory voting laws have more subtle harms that commence as soon as they are enacted (such as deterring minority candidates from seeking office). See id., 590 F.Supp. at 363. In this case, however, there has been no showing that the run-off law tends to have any harmful effect.