Opinion · Court of Appeals for the Fifth Circuit
League of United Latin American Citizens, Council No. 4434 v. Clements
League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831 (5th Cir. 1993)
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 1993-08-25
- Topic
- general
How later courts describe this case
- recognizing a State’s historic interest in having district judges remain accountable to all voters
- finding judges who had intervened as defendants had Article III standing as voters affected by the challenged judicial election scheme to pursue the case independently on appeal
- “Requiring plaintiffs affirmatively to establish that white voters’ rejection of minority-preferred candidates was motivated by racial animus would make racial bloc voting both difficult and, considering the additional analysis that would be needed, expensive to establish.”
- describing Justice Brennan’s rationale for treating race of candidate as irrelevant
- "[T]he 1982 amendments to Sec. 2 were intended to 'codify' the results test as employed in White and Whitcomb."
- "The Senate Report quite unambiguously declares that Congress intended to 'make clear that plaintiffs need not prove a discriminatory purpose in the adoption or maintenance of the challenged practice or system in order to establish a violation.' "
- "This court has consistently held that elections between white candidates are generally less probative in examining the success of minority-preferred candidates, generally on grounds that such elections do not provide minority voters with the choice of a minority candidate."
- “This court has eonsistently held that elections between white candidates are generally less probative in examining the success of minority-preferred candidates, generally on grounds that such elections do not provide minority voters with the choice of a minority candidate.”
Citator
UpLaw has not yet analyzed League of United Latin American Citizens, Council No. 4434 v. Clements. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 42 opinions
TABLE OF CONTENTS
I. Facts . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Motion to Remand . . . . . . . . . . . . . . . . . . . . 9
A. The Authority of the Texas Attorney General . . . . . 10
B. Other Motions . . . . . . . . . . . . . . . . . . . . 18
C. The Intervenors . . . . . . . . . . . . . . . . . . . 20
D. Consent Decrees . . . . . . . . . . . . . . . . . . . 24
E. Chisom v. Edwards . . . . . . . . . . . . . . . . . . 29
F. Federalism . . . . . . . . . . . . . . . . . . . . . 32
III. Racial Bloc Voting . . . . . . . . . . . . . . . . . . . 32
A. Whitcomb v. Chavis and White v. Register . . . . . . 38
B. The 1982 Amendments . . . . . . . . . . . . . . . . . 46
C. Thornburg v. Gingles . . . . . . . . . . . . . . . . 49
D. Partisan Politics . . . . . . . . . . . . . . . . . . 57
E. Two Objections . . . . . . . . . . . . . . . . . . . 64
IV. Other Legal Errors Affecting the Vote Dilution Inquiry . 71
A. Cohesiveness of Different Minority Groups . . . . . . 71
B. Relevance of Small Number of Minority Lawyers . . . . 75
C. Past Discrimination . . . . . . . . . . . . . . . . . 77
V. Texas' Linkage Interest . . . . . . . . . . . . . . . . 83
A. The Structure of Texas District Courts . . . . . . . 84
B. The Role of Function Under § 2 . . . . . . . . . . . 85
C. Weight of State's Interest is Matter of Law . . . . . 90
D. Determining the Weight of the Linkage Interest . . . 92
E. Other Means to Accommodate the Linkage Interest . . . 102
F. Balancing the State's Interest . . . . . . . . . . . 105
VI. Application of Law to Each County . . . . . . . . . . . 106
A. Dallas County . . . . . . . . . . . . . . . . . . . . 107
B. Harris County . . . . . . . . . . . . . . . . . . . . 115
C. Tarrant County . . . . . . . . . . . . . . . . . . . 125
D. Travis County . . . . . . . . . . . . . . . . . . . . 130
E. Bexar County . . . . . . . . . . . . . . . . . . . . 135
F. Jefferson County . . . . . . . . . . . . . . . . . . 138
G. Midland County . . . . . . . . . . . . . . . . . . . 141
H. Lubbock County . . . . . . . . . . . . . . . . . . . 143
I. Ector County . . . . . . . . . . . . . . . . . . . . 145
VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . 147
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 90-8014
LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
COUNCIL NO. 4434,
Plaintiffs-Appellees,
and
JESSE OLIVER, ET AL.,
Intervening Plaintiffs-
Appellees,
versus
WILLIAM P. CLEMENTS, Etc.
Defendants,
JIM MATTOX, ET AL.,
Defendants-Appellees-
Appellants,
versus
JUDGE F. HAROLD ENTZ, Etc.,
JUDGE SHAROLYN WOOD, Etc., and
GEORGE S. BAYOUD, JR., Etc.,
Defendants-Appellants,
and
TOM RICKHOFF, SUSAN D. REED, JOHN J.
SPECIA, JR., SID L. HARLE, SHARON
MACRAE and MICHAEL P. PEDAN, Bexar
County, Texas State District Judges,
Appellants.
Appeal From the United States District Court
for the Western District of Texas
(August 23, 1993)
Before POLITZ, Chief Judge, KING, JOHNSON, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, and
DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Over the past fifty years, the steady march of civil rights
has been to New Orleans and this court. It continues but the
demands have changed. Relatively clear lines of legality and
morality have become more difficult to locate as demands for
outcomes have followed the cutting away of obstacles to full
participation. With our diverse ethnic makeup, this demand for
results in voting has surfaced profound questions of a democratic
political order such as the limits on rearranging state structures
to alter election outcomes, and majority rule at the ballot box and
even in legislative halls, questions Congress has provoked but not
answered. All this can make a simple voting rights case seem
difficult, certainly so with state judges elected on a partisan
ballot. Today our difficulties of fitting the Act to the unique
features of the state judiciary and sorting out racial and partisan
voting are large but the merits of the claims are easily grasped.
As we will explain, there is a background to the debate on the
large issues that must not be obscured. The evidence of any
dilution of minority voting power is marginal at best. We are not
persuaded that a violation of the Voting Rights Act has been proved
and we reverse.
I. Facts
On July 11, 1988, ten individual voters and the League of
United Latin American Citizens sued in federal district court
alleging that Texas' system of electing state trial judges violated
§ 2 of the Voting Rights Act and the Fourteenth and Fifteenth
2
Amendments in several Texas counties.1 They sued the Governor of
Texas,2 the Attorney General, the Secretary of State, and the Chief
Justice of the Supreme Court as chair of the Judicial Districts
Board. Because this board is responsible for reapportioning the
judicial districts, the suit also named each of its members as
defendants. On March 12, 1989, the district court granted the
motions to intervene of the Houston Lawyers' Association, the
Legislative Black Caucus, and two Texas district court judges, in
their individual capacities--Sharolyn Wood, 127th District Court in
Harris County, and Harold Entz, 194th District Court in Dallas
County.
As they have throughout Texas history, Texas voters elect
their trial judges in county-wide elections. A voter may vote for
all of the trial courts of general jurisdiction in her county. At
the same time, each trial court is a distinct court, such as the
134th judicial district court of Dallas County, with county-wide
jurisdiction and its own history of incumbents. A candidate runs
for a particular court. Plaintiffs contend that electing trial
judges county-wide violates § 2 of the Voting Rights Act by
impermissibly diluting the voting power of Hispanics and blacks.
Plaintiffs proceed on behalf of language and ethnic minorities in
different combinations in different counties. Depending on the
1
Plaintiffs originally challenged the election of district
judges in 44 counties, but by trial, winnowed their targets to
the following nine urban counties: Harris County, Dallas County,
Travis County, Tarrant County, Jefferson County, Ector County,
Bexar County, Midland County, and Lubbock County.
2
Plaintiffs early in the case dismissed the Governor.
3
county--more specifically, the numbers--they argue that Hispanic
voters, black voters, or the combination of both Hispanic and black
voters "have less opportunity than other members of the electorate
to participate in the political process and elect representatives
of their choice." Plaintiffs aimed their constitutional challenge
at Article 5, § 7a(i) of the Texas Constitution, which precludes
the creation of judicial districts smaller than a county absent
approval by a majority of the voters in that county. They argued
that this limitation on the power to redistrict of the Judicial
Districts Board, chaired by defendant Chief Justice Phillips, was
enacted with discriminatory intent.
On November 8, 1989, the district court found county-wide
elections violated § 2 in all nine counties, enjoined future
elections, divided the nine counties into electoral subdistricts,
and ordered a nonpartisan election for May 5, 1990, with any runoff
to be held on June 2. The district court rejected the
constitutional arguments, finding that plaintiffs had failed to
prove that Texas instituted or maintained the electoral system with
discriminatory intent.3 Intervenors Judge Wood and Judge Entz
appealed. Unhappy with nonpartisan elections ordered by the
district court, the Texas Attorney General first moved the court to
alter its interim plan. After the court denied the motion, the
3
This ruling was not appealed.
4
Attorney General filed a notice of appeal.4 We stayed the district
court's order pending appeal.
In our first effort in this case, a panel held that the Act
covers judicial elections but concluded that electing district
judges in county-wide elections in Texas did not violate § 2.
League of United Latin American Citizens v. Clements,
902 F.2d 293
(5th Cir. 1990) ("LULAC I"). We considered the history of judicial
elections in Texas and the office of district judge--the court of
general jurisdiction. We held that Texas had a special interest in
linking the jurisdictional and electoral bases of the trial courts,
an interest accented by unwavering support throughout Texas
history. Finding no truly informing analogues for resolving such
an attack on at-large voting supported by a state interest unique
to this judicial office, we looked to the weighing constructs
familiar to the Act. We concluded that, as a matter of law, the
state interest linking jurisdiction and electoral base outweighed
its potentially dilutive effect. LULAC I,
902 F.2d at 308
.
A majority of this court sua sponte ordered reconsideration of
the panel decision en banc. League of United Latin American
Citizens v. Clements,
914 F.2d 620
(5th Cir. 1990) ("LULAC II").
The en banc court held by a 7-6 vote that § 2 of the Act did not
4
Former Secretary of State George S. Bayoud, Jr., a named
party defendant, objected to the Attorney General's decision not
to appeal immediately. Bayoud took the position that as chief
elections officer of the State of Texas, he was the Attorney
General's client and the Attorney General must represent his
interests. Bayoud obtained independent counsel and filed a
notice of appeal himself.
5
apply to judicial elections, rejecting the contrary view of the
panel.
Houston Lawyers' Association, as intervenor, and LULAC
petitioned for certiorari. The Supreme Court granted both
petitions, consolidated them, and reversed, holding that the Voting
Rights Act applies to state judicial elections. Houston Lawyers'
Ass'n v. Attorney General, U.S. ,
111 S.Ct. 2376
(1991). The Supreme Court also held that Texas has a special interest in linking the electoral and jurisdictional bases of district judges.Id.
at ,111 S.Ct. at 2381
. The Court did not agree, however,
that this state interest outweighed its dilutive effect in all
cases, as a matter of law. Rather, the Court held that balancing
is a case-specific enterprise, struck by inquiry into the totality
of the circumstances. Justice Stevens explained that the state
interest in linkage was to be weighed in deciding "whether a § 2
violation occurred." Id. Justice Stevens made plain that
assessing the linkage interest is part of the determination of
liability and not remedy alone. The Court effectively came down
between the "goes only to remedy" view of the Department of Justice
and the "matter of law" view of the concurring opinion in LULAC II.
On remand, the en banc court in turn remanded to the panel.
On January 27, 1993, a majority of the panel affirmed the district
court's findings in eight of the nine counties. The panel
concluded that plaintiffs failed only in Travis County, a
Democratic stronghold. League of United Latin American Citizens v.
Clements,
986 F.2d 728
(5th Cir. 1993) (LULAC III). For a second
6
time, this court decided, on its own motion, to hear the case en
banc.
Although the panel opinion had been vacated, General Morales
urged a legislative solution to reforming judicial elections. He
submitted a plan to the legislature calling for the election of
judges from single-member districts in all Texas counties with
populations over 100,000. Recognizing that the Texas Constitution
mandates the current system of electing trial judges, see Tex.
Const. Art. 5, §§ 7, 7a(i), Morales asked the legislature to submit
a constitutional amendment to the voters to implement his plan and
urged them to do so in time to moot the LULAC lawsuit. Doubting
the necessary legislative support for an amendment, the Governor,
the Lieutenant Governor, and minority lawmakers urged Morales to
achieve the same result through settlement. Morales drafted an
agreement providing for the election of the vast majority of judges
in the nine urban counties by subdistricts. Democratic officials
who were parties to the suit quickly agreed. But Morales could not
obtain the agreement of Chief Justice Phillips, nor the district
judges, Judge Wood and Judge Entz.
When a proposed resolution approving the "agreement" reached
the floor of the Senate there was no quorum because all but two of
the thirteen Republican senators walked out. The Senate later
reconvened as a Committee of the Whole, not in formal session, and
voting along party lines, adopted a resolution expressing its
"sentiment" in support of a federal decree. Voting in the House
also followed party lines. Nothing with the force of law could be
7
obtained from the legislature. When the dust settled, the only
legislative action was this expression of sentiment in support of
a federal decree, and that from a Senate convened in a Committee of
the Whole. Failing to obtain any positive enactment from the
legislature, Morales requested that we remand to the district court
for a hearing and entry of his proposed "consent" decree.
By the decree, 152 judges would run in districts smaller than
a county, while 22 would continue to be elected at-large. District
boundaries would mirror state representative districts in Dallas,
Harris, Bexar, and Jefferson counties. Justice of the peace
districts would be used in Tarrant County. In Lubbock, Ector, and
Midland counties, judges would run from the existing commissioners
court districts. Anticipating the question of how the case can be
settled without the agreement of the district court judges, the
plan allows Judges Wood and Entz to be elected in a county-wide
election. The stated purpose was to deny the defendant district
judges standing to object.
Chief Justice Phillips, Judge Wood, and Judge Entz object to
the proposed decree and oppose the motion to remand. In addition,
three former Chief Justices of Texas, Joe R. Greenhill, Robert W.
Calvert, and John L. Hill, are before us as amici objecting to
remand--and denying the authority of the Attorney General to bind
the State. Judges Wood and Entz have moved to realign General
Morales with the plaintiffs, and allow their assumption of the
8
defense of the current system.5 Judge Wood has also moved to
disqualify the Texas Attorney General as counsel for the State.
When settlement negotiations began, Chief Justice Phillips obtained
independent counsel.6 General Morales responded by moving to
disqualify Phillips' counsel. Finally, immediately after oral
argument, plaintiffs filed a notice of nonsuit of Chief Justice
Phillips and the Texas Judicial Districts Board.
II. Motion to Remand
We are asked to remand to the district court for entry of a
consent decree, although some of the parties wish to proceed with
the appeal. The Attorney General argues that these non-consenting
parties are no obstacle. Chief Justice Phillips, General Morales
argues, was sued in his official capacity as chair of the Judicial
Districts Board and the Attorney General is the exclusive lawyer
for the State of Texas. On its face, this is not a remarkable
contention. However, General Morales also maintains that in his
role as lawyer for the State, he need not represent the State's
policymakers; he can ignore them and impose his own views. That is
remarkable. The force of this contention is that the Attorney
General is the sole arbiter of State policy when the State's
interest is in litigation. This argument is put forward despite
the fact that it leaves his scrambling for legislative support
5
Judge Wood also filed a motion to strike the Attorney
General's Notice of Action Toward Settlement, which we denied
before oral argument.
6
We granted Chief Justice Phillips' motion requesting that
he be allocated time at oral argument.
9
wholly inexplicable; under his presently claimed power, the
Attorney General did not need to have the "settlement" adopted by
statute. In any event, Texas law does not sanction his actions.
Nor are we persuaded that Defendant-Intervenors, Judges Entz and
Wood, lack standing to object to a proposed consent decree that
will allow them to run county-wide. We deny the motion to remand.
A. The Authority of the Texas Attorney General
General Morales is not the first Texas Attorney General to
have staked such a claim of authority. We rejected a similar
effort in Baker v. Wade,
769 F.2d 289
(5th Cir. 1985) (en banc).
Baker challenged Texas' anti-sodomy statute, suing Holt, the Dallas
City Attorney, and Wade, the Dallas County District Attorney. The
district court certified a defendant class of officials responsible
for enforcing the statute, with Holt and Wade as representatives,
and the Attorney General of Texas intervened on behalf of the
State. After the district court declared the statute
unconstitutional, Danny E. Hill, Potter County's district attorney,
filed a notice of appeal, concerned that the Attorney General might
decide not to appeal. Hill was a member of the class, but was not
a named defendant and had not sought to intervene. Hill's concern
was realized when the Attorney General appealed but then withdrew
the notice. After failing to persuade the Texas Supreme Court to
order the Attorney General to pursue the appeal and unable to
obtain leave to intervene from the district court, Hill asked this
court for leave to intervene on appeal. We granted this request,
explaining:
10
[Hill] would be seriously prejudiced were he not allowed
to intervene, whereas allowing the appeal to proceed
would prejudice no one. As a state official empowered by
Texas law to enforce criminal laws, his interest and its
impairment by the district court's judgment cannot be
questioned. . . .
In this case where the district court has rejected
binding Supreme Court authority, the circuit court is
entitled to conclude as a matter of law that those
interests were inadequately represented by those who
failed to pursue the appeal and that the state officer
seeking to intervene was a proper party to do so.
Id. at 292
.
Attorney General Mattox made a considered decision to accept
the district court's declaration of unconstitutionality. That was
a basic policy choice. Baker's relevant instruction lies in the
fact that Attorney General Mattox's decision did not control.
Baker rejected the very power claimed by this Attorney General.
The power he would exercise cannot be squared with Baker.
That Attorney General Mattox decided to accept the ruling of
the district court and Morales reaches for a similar result by a
"settlement" fails to distinguish our holding in Baker. It does
not respond to our holding that the Attorney General cannot bind
state officials, his clients, to his own policy preferences. It is
asserted that Hill as a district attorney, one of hundreds in
Texas, was charged with the duty of enforcing the statute held
unconstitutional. The law enforcement responsibility of a district
attorney and that of the Chief Justice as chair of the
redistricting board, however, do not differ in relevant ways.
Indeed, that the Chief Justice may defend the suit is an a fortiori
case under Baker. After all, his judicial duties aside, the Chief
Justice's enforcement responsibilities under the redistricting
11
provisions of state law are statewide. A district attorney's
duties, however, run only to the county line. See Crane v. Texas,
766 F.2d 193
(5th Cir. 1985).
The Texas Constitution requires the Chief Justice to supervise
the state district courts. Article 5, § 7a established the
Judicial Districts Board and made the Chief Justice its chair.
Tex. Const. Art. 5, § 7a(a) and (b). The constitution charges the
Board with the duty of reapportioning the judicial districts as the
need arises. Id. § 7a(f). Among other things, the Board is
required to consider a district's case load and population in its
reapportionment decisions.
Tex. Gov't Code Ann. § 24.945
(Vernon 1988). Of special importance to this case, the Board may not create districts smaller than a county without a general election. Tex. Const. Art. 5, § 7a(i);Tex. Gov't Code Ann. § 24.945
(e) (Vernon 1988). A redistricting plan may not be proposed or adopted even in anticipation of such an election.Id.
Indeed the district court denied leave to intervene in this suit to Midland County concluding it was not a real party in interest. A panel of this court agreed, observing that, unlike the Judicial Districts Board, the county lacked "the power to re-shape judicial districts." LULAC v. Clements,884 F.2d 185, 187
(5th Cir. 1989). Given the
Chief Justice's role as chair of the Board and his state
constitutional duties to manage state judicial districts and the
efficiency of the courts, his contention that he has the authority
to defend this lawsuit if the Attorney General will not is
compelling. If a district attorney has a sufficient interest in
12
protecting the laws he is duty-bound to enforce, we are persuaded
that the Chief Justice as chairman of the Judicial Districts Board
has a sufficient interest in protecting the current district court
system.7
The concerns raised by the Baker dissent are not present here.
The dissent was troubled by the fact that Hill was neither a named
defendant nor a class representative, had never sought to intervene
in the district court, and was not a named party when he filed his
appeal.
769 F.2d at 294-95
(Rubin, J., dissenting). Here, Chief
Justice Phillips has been a named defendant from the outset.
The state courts have had little occasion to face such a bold
claim of authority. The few Texas cases that have grappled with
the Attorney General's authority offer him little comfort. Morales
points to Terrazas v. Ramirez,
829 S.W.2d 712
(Tex. 1991), but in
Terrazas, General Morales also failed in an effort to "settle" a
legislative reapportionment case. Following the 1990 census,
plaintiffs sued various state and county officials to prevent the
use of the new census in reapportioning the legislature, because it
allegedly undercounted minorities. The legislature proceeded with
reapportionment and plaintiffs also challenged the resulting plans.
General Morales defended the legislature's plans, lost at trial,
and appealed directly to the Texas Supreme Court. Then, Morales
7
The dissent argues that Chief Justice Phillips was joined
solely as a jurisdictional party for Eleventh Amendment purposes.
Even if that were true, and it is not, see supra page 4, it would
not answer the real question: if the State of Texas is the real
party in interest, does the Attorney General possess exclusive
authority to choose whether the State's interests will be
asserted on appeal? In Baker, we answered in the negative.
13
agreed with the plaintiffs to settle the senate reapportionment
challenge. The agreement included a redistricting plan that was
submitted to the trial court and promptly accepted by it.
Thereafter, five individuals, not parties to the suit, requested
the Supreme Court of Texas to direct the trial court to vacate its
judgments reconfiguring the senatorial districts, order the
Attorney General to rescind the agreement, and direct the Secretary
of State to withdraw submission of the plan for preclearance.
A plurality directed the trial court to vacate its judgments,
but refused relief against the Attorney General. Four justices
held that the trial court erred by failing to weigh all affected
interests before entering the proposed decree. In Justice Hecht's
words, "a district court cannot order a reapportionment plan for
the State based on nothing more than an agreement of the Governor,
the Attorney General, and a few citizens." Id. at 714.8 Indeed a
majority believed the Attorney General's "discretion includes the
authority to propose a settlement agreement in an action attacking
the constitutionality of a reapportionment statute." Id. at 722
(Hecht, J.) (emphasis supplied).
In approving of the Attorney General's conduct, however, the
plurality noted that he acted "on behalf of the state
defendants[,]" giving him the authority "for his clients and even
on his own, to suggest possible remedies . . . [and] to negotiate
a settlement." Id. (Hecht, J.) (emphasis added). "To hold that he
8
Justice Gonzalez joined section II.A. of the plurality
opinion regarding the entry of redistricting relief.
14
did not would be to give him less authority than any party or any
other attorney participating in the case." Id. (emphasis added).
The Attorney General acts as counsel for state officials who are
his clients.
Terrazas recognizes that the Attorney General represents
officials. It does not follow that by doing so, the Attorney
General steps into their shoes and assumes the policymaking roles
of those officials, against whom specific relief is sought. We
need not and do not decide the authority of the Attorney General
when an official is named in his official capacity only to join the
State. Plaintiff sought specific relief against the Judicial
Districts Board chaired by defendant Chief Justice Phillips. The
petitioners who objected to the settlement in Terrazas were not
even parties to the suit. The Attorney General's power to settle
for his clients is certainly no less than that of other lawyers,
but Terrazas does not say that it is any greater. No lawyer may
forge a settlement agreement over the express objection of his
client. Here, to the extent that Morales represents the Chief
Justice in the Justice's defense of his constitutionally assigned
task, he may not ignore him. As Justice Wallace put it for the
Texas Supreme Court in Public Utility Commission of Texas v. Cofer,
754 S.W.2d 121, 125
(Tex. 1988):
We emphasize that when a statute confers a right upon the
attorney general to represent an agency, it imposes a
corollary duty, and the agency has every right to expect
the same diligent and faithful representation as any
other "client."
15
See also Hill v. Lower Colo. River Auth.,
568 S.W.2d 473, 478
(Tex. Civ. App.--Austin 1978, writ ref'd n.r.e.) (rejecting an attempt by the attorney general to sue the Texas Water Rights Commission "in an effort to substitute his views for that of a lawfully constituted State administrative agency"); Charles Scribner's Sons v. Marrs,262 S.W. 722, 729
(Tex. 1924) (although attorney general
had authority to represent the State Superintendent of Education,
he did not have authority "to elect for the state to accept or
reject a contract for text-books that is voidable," a decision for
the Board of Education).
The Texas legislature has also recognized that the Attorney
General represents the State but does not make its policies. "An
admission, agreement, or waiver made by the attorney general in an
action or suit to which the state is a party does not prejudice the
rights of the state."
Tex. Gov't Code Ann. § 402.004
(Vernon 1988); see also State v. Reagan County Purchasing Co.,186 S.W.2d 128, 135
(Tex. Civ. App.--El Paso 1944, writ ref'd w.o.m.) ("acts
beyond the scope of [Attorney General's] delegated power are not
binding on the State"). If the Texas Attorney General could make
policy for the State, this provision would be superfluous, for he
could never violate it. He would in effect be the State. When
faced with this statute before, we appropriately noted that "Texas
has been at particular pains to attempt to circumscribe the power
16
of the attorney general to make admissions on its behalf." United
States v. Texas,
680 F.2d 356
, 368 n.17 (5th Cir. 1982).9
9
Because the office of Attorney General is rooted in the
common law, many states, including Texas, refer to their Attorney
General's common law powers. E.g. Martinez v. State,
753 S.W.2d 165, 179
(Tex. App.--Beaumont 1988, writ ref'd). Thus, there is some value to looking at how other states have dealt with the issue we face today. In Tice v. Department of Transportation,312 S.E.2d 241, 246
(N.C. Ct. App. 1984), the North Carolina court held "that the Attorney General . . . is bound by the traditional rule governing the attorney-client relationship, and cannot enter a consent judgment without the consent of the entity represented." In Georgia, the Attorney General may not "bind his client by settlement for less than the full sum claimed, unless express authority be given by the client." State v. Southwestern R.R.,66 Ga. 403, 407
(1881). The North Dakota Attorney
General's power to represent state departments and officers
does not mean that the attorney general, standing in the
position of an attorney to a client, who happens to be an
officer of the government, steps into the shoes of such
client in wholly directing the defense and the legal steps
to be taken in opposition or contrary to the wishes and
demands of his client or the officer or department
concerned.
State ex rel. Amerland v. Hagan,
175 N.W. 372, 374
(N.D. 1919), overruled on other grounds, Benson v. North Dakota Workmen's Compensation Bureau,283 N.W.2d 96
(N.D. 1979). According to the
Mississippi Supreme Court,
The unique position of the Attorney General requires
that when his views differ from or he finds himself at odds
with an agency, then he must allow the assigned counsel or a
specially appointed counsel to represent the agency
unfettered and uninfluenced by the Attorney General's
personal opinion.
State ex rel. Allain v. Mississippi Public Serv. Comm'n,
418 So. 2d 779, 784
(Miss. 1982); see also Frazier v. State by and through Pittman,504 So. 2d 675, 691
(Miss. 1987) (where attorney general refuses to represent state agency, agency is entitled to its own lawyer and court may retain jurisdiction and entertain the suit). Arizona does not permit its Attorney General to appeal a decision against the wishes of the state agency he represents. Santa Rita Mining Co. v. Department of Property Valuation,530 P.2d 360
(Ariz. 1975). Finally, the authority of the Attorney General of Illinois does not permit him to waive the rights of his client. Cook County v. Patka,405 N.E.2d 1376
,
17
Stated another way, the Attorney General's right to represent
state officials or state agencies cannot be gainsaid, see Hill v.
Texas Water Quality Bd.,
568 S.W.2d 738, 741
(Tex. Civ. App.-- Austin 1978, writ ref'd n.r.e.); Morris v. Smiley,378 S.W.2d 149, 152
(Tex. Civ. App.--Austin 1964, writ ref'd n.r.e.), but he must in fact represent them. He cannot ignore his clients and bind the State against their wishes.10 This is not to say that the Chief Justice is the sole arbiter. Both he and the Attorney General are named parties to this suit, and each has the right to be heard in this case. The Attorney General's authority does not allow him to "close either the mouth of [Phillips] or the ears of the courts, when there are complaints that the Attorney General or his assistants are not in fact fulfilling their duty." Cofer,754 S.W.2d at 125
.
B. Other Motions
We deny the Attorney General's motion to disqualify Phillips'
counsel. We also deny plaintiffs' attempt to nonsuit the Texas
Judicial Districts Board, including its chair, Chief Justice
Phillips. The motion was filed immediately after oral arguments
before the en banc court on May 24, 1993. Rule 41(a) governs
1380 (Ill. App. 1980).
10
Professor Fiss has recognized the problem raised by
Attorney General Morales' actions in this case. "We are left to
wonder, for example, whether the attorney general should be able
to bind all state officials, some of whom are elected and thus
have an independent mandate from the people, or even whether the
incumbent attorney general should be able to bind his
successors." Owen M. Fiss, Against Settlement,
93 Yale L.J. 1073
, 1079 (1984).
18
voluntary dismissals and provides that a plaintiff may dismiss an
action without order of the court in two circumstances. The
plaintiff must either file the notice of dismissal before the
adverse party serves its answer or summary judgment motion,
whichever occurs first, or file a stipulation of dismissal signed
by all parties who have appeared in the case. Fed.R.Civ.P.
41(a)(1). The notice of nonsuit comes almost five years after the
defendants have answered, and none of the defendant-aligned parties
has signed the motion. Plaintiffs have no unilateral right to
dismiss the Chief Justice and Judicial Districts Board. We will
not permit plaintiffs to seek injunctive relief against the office
held by Chief Justice Phillips for almost five years and then
dismiss him when he declines to settle. See Davis v. Huskipower
Outdoor Equipment Corp.,
936 F.2d 193, 199
(5th Cir. 1991) (affirming refusal to dismiss defendant more than a year after the case was removed to federal court); Radiant Technology Corp. v. Electrovert USA Corp.,122 F.R.D. 201
(N.D. Tex. 1988) (motion to
voluntarily dismiss under Rule 41 should be denied when plaintiff
seeks to circumvent an expected adverse result).
We deny the motion of the district judges as Defendant-
Intervenors to realign General Morales with plaintiffs. Morales'
efforts to settle the case do not require this measure. He is
entitled to take a position in settlement negotiations that is
different from his trial posture. However, if the Attorney General
changes his views on the merits of the case, realigning him with
the plaintiffs may be appropriate. Cf. Delchamps, Inc. v. Alabama
19
State Milk Control Bd.,
324 F. Supp. 117, 118
(M.D. Ala. 1971)
(allowing Alabama Attorney General, who like the Texas Attorney
General took an oath to defend both state and federal law, to
realign himself with plaintiffs to challenge the federal
constitutionality of a state law). We also deny Judge Wood's
motion to disqualify General Morales as counsel for the State.
While we have rejected his claimed power to bind against their will
state officials he is charged to represent, he is nonetheless their
counsel.
C. The Intervenors
The Attorney General may represent state officials in their
official capacities, but there is no contention that General
Morales represents Judges Wood and Entz.11 They have intervened in
their personal capacities and have elected to obtain their own
counsel.12 As we earlier observed, the proposed consent decree
11
After trial, certain Bexar County district judges also
sought to intervene as defendants, and we have before us an
appeal from the denial of their motion. A motion to intervene
under Rule 24 must be timely. Fed.R.Civ.P. 24(a), (b); Jones v.
Caddo Parish School Bd.,
735 F.2d 923, 926
(5th Cir. 1984) (en
banc). Although the district court did not expressly state that
their motion was untimely, it was well within the district
court's discretion to deny the motion on this ground.
12
Because we find that the judges' standing in their
individual capacities survives the settlement agreement, we are
not required to address the ability of Texas district court
judges to represent themselves in their official capacities. It
appears, however, that Texas law permits them to do so. Tex.
Gov't Code § 74.141, titled Defense of Judges provides:
The attorney general shall defend a state district judge, a
presiding judge of an administrative region, or an active,
retired, or former judge assigned under this chapter in any
action or suit in any court in which the judge is a
defendant because of his office as judge if the judge
20
would allow Judge Wood and Judge Entz to continue to run county-
wide. General Morales urges that they therefore lack standing to
either prosecute the suit or object to the proposed decree.
To this point, the standing of the intervening parties has not
been questioned. To the contrary, the intervenors played an
important role at trial and have since taken the lead. After the
federal district judge's ruling in favor of plaintiffs, the notice
of appeal was first filed by Judges Wood and Entz, not by the
Attorney General. Only the district judge's adherence to
nonpartisan elections prodded the Attorney General to appeal. The
Houston Lawyers' Association intervened by the same order as the
intervening judges and carried the appeal from our first en banc
decision to the United States Supreme Court.13 Even now, no one
questions the earlier uncontested standing of the intervenors; nor
could they. Wood and Entz intervened in part to protect their
tenure as elected judges. The district court found that they were
illegally elected.
Of course, these intervenors must satisfy Article III to
appeal on their own. Diamond v. Charles,
476 U.S. 54, 68
(1986);
Didrickson v. United States Department of the Interior, 982 F.2d
requests the attorney general's assistance in the defense of
the suit.
(emphasis added).
13
"Since an intervenor is bound by future orders, it may
appeal from an appealable order unless the intervention has been
specifically limited to forbid it." Matter of First Colonial
Corp.,
544 F.2d 1291, 1298
(5th Cir. 1977). There is obviously
no such limitation on the intervenors' right to appeal in this
case.
21
1332, 1337-39 (9th Cir. 1992); United States v. Western Elec. Co.,
900 F.2d 283
(D.C. Cir. 1990). A case or controversy between the State and plaintiffs remains. The parties have a right to a determination of that appeal, unless they consent to a remand. See Wheeler v. American Home Products Corp.,582 F.2d 891, 896
(5th
Cir. 1977) ("once intervention has been allowed, the original
parties may not stipulate away the rights of the intervenor"); see
also Sheffield v. Itawamba County Bd. of Supervisors,
439 F.2d 35, 36
(5th Cir. 1971) ("having instituted a public lawsuit to secure
rectification for a constitutional wrong of wide dimension,
[plaintiffs] cannot privately determine its destiny"). Put another
way, the proposed settlement does not deprive this court of its
jurisdiction to hear the appeal independently perfected by Judges
Wood and Entz, an appeal from a decision that declared their
elections illegal.
Even assuming the proposed settlement foreclosed the
intervening judges' standing to protect their tenure, Wood and Entz
would still have a sufficient stake in the litigation to satisfy
the Constitution. In an earlier opinion in this case we said
[a]sserting interests both as a Texas voter and as a
sitting Texas district judge, Judge Sharolyn Wood moved
to intervene on the side of the defendant--the state.
The court allowed her to intervene in her personal
capacity, permitting Dallas County District Judge Harold
Entz to do so as well.
League of United Latin American Citizens v. Clements,
923 F.2d 365, 367
(5th Cir. 1991)(emphasis added). In the district court, Judge
Entz moved to intervene as a defendant to defend on his interests
as a judge, a lawyer, and a registered voter in and citizen of
22
Dallas County. The court's order granting intervention in his
individual capacity encompasses all of these interests.
Thus, the proponents of remand view the judges' intervention
too narrowly, for Wood and Entz also have standing as voters. The
settlement agreement would deprive voters of the right to vote for
all judges with general jurisdiction over their county. The
Eleventh Circuit recently confronted a similar situation. Meek v.
Metropolitan Dade County,
985 F.2d 1471
(11th Cir. 1993), was a
voting rights challenge to the at-large election of county
commissioners in Dade County, Florida. As here, individual voters
challenged a liability finding that elected officials would not
contest on appeal. Swann and Sampson were Dade County residents
and voters. The district court denied them leave to intervene
before trial. In a second request for leave to intervene, Swann
and Sampson sought to preserve their right to appeal in the event
of an adverse judgment and a decision by defendants not to appeal.
The court found the at-large system illegal and, as feared, the
County Commission decided not to appeal. When the district court
denied their third motion to intervene, Swann and Sampson appealed.
Our sister court held that the district court abused its
discretion in denying the intervention and affirmed the district
court on the merits. The court held that the voters had standing,
a sufficient interest both to intervene and carry the appeal when
the state agency declined to do so. In its view, if the court were
to deny standing to these voters, it "would be forced to conclude
that most of the plaintiffs also lack standing, a conclusion
23
foreclosed by the many cases in which individual voters have been
permitted to challenge election practices."
Id.
at 1480 (citing Whitcomb v. Chavis,403 U.S. 124
(1971); Baker v. Carr,369 U.S. 186
(1962)). We agree that the standing of voters in a voting rights case cannot be gainsaid. See also O'Hair v. White,675 F.2d 680, 688-90
(5th Cir. 1982) (en banc); Henderson v. Fort Worth Independent School Dist.,526 F.2d 286
, 288-90 (5th Cir. 1976).14
D. Consent Decrees
Even if all of the litigants were in accord, it does not
follow that the federal court must do their bidding. The proposal
is not to dismiss the lawsuit, but to employ the injunctive power
of the federal court to achieve a result that the Attorney General
and plaintiffs were not able to achieve through the political
process. The entry of a consent decree is more than a matter of
agreement among litigants. It is a "judicial act." United States
v. Swift & Co.,
286 U.S. 106, 115
(1932). "[W]hen [the court] has rendered a consent judgment it has made an adjudication." Kaspar Wire Works, Inc. v. Leco Eng'g & Machine, Inc.,575 F.2d 530
, 538-
39 (5th Cir. 1978) (quoting 1B James W. Moore et al., Moore's
Federal Practice ¶ 0.409[5]). Courts must exercise equitable
discretion before accepting litigants' invitation to perform the
judicial act.
14
Our conclusion that Defendant-Intervenors continue to have
standing in their individual capacities to defend the current
method of electing trial judges makes it unnecessary for us to
consider their motion to modify their intervention to enable them
to do so.
24
A consent decree must arise from the pleaded case and further
the objectives of the law upon which the complaint is based. See
Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland,
478 U.S. 501, 525
,106 S. Ct. 3063, 3077
(1986). When presented with a proposed judgment, the court "must not merely sign on the line provided by the parties." United States v. City of Miami,664 F.2d 435, 440
(5th Cir. 1981) (en banc) (Rubin, J.).
Because the consent decree does not merely validate a
compromise but, by virtue of its injunctive provisions,
reaches into the future and has continuing effect, its
terms require more careful scrutiny. Even when it
affects only the parties, the court should, therefore,
examine it carefully to ascertain not only that it is a
fair settlement but also that it does not put the court's
sanction on and power behind a decree that violates
Constitution, statute, or jurisprudence. . . . If the
decree also affects third parties, the court must be
satisfied that the effect on them is neither unreasonable
nor proscribed.
Id. at 441
(Rubin, J.) (emphasis added); see also Overton v. City of Austin,748 F.2d 941, 952-53
(5th Cir. 1984); Williams v. City of New Orleans,729 F.2d 1554, 1559
(5th Cir. 1984) (en banc)
(Williams, J.).
The emphasized passage makes a critical point. A proposed
consent decree is generally--as here--a request for the court to
exercise its equitable powers. It involves the court's sanction
and power and is not a tool bending without question to the
litigants' will. As Justice Harlan wrote, "parties cannot, by
giving each other consideration, purchase from a court of equity a
25
continuing injunction." System Federation No. 91, Ry. Employees'
Dep't, AFL-CIO v. Wright,
364 U.S. 642, 651
(1961).15
We have recognized that when fewer than all litigants forge a
consent decree, issues affecting other parties remain to be
adjudicated. City of Miami,
664 F.2d at 440
(Rubin, J.). As eleven judges recognized in the same case, our preferences for settlement and accord are insufficient to justify the imposition of a decree that infringes upon the rights of third parties. Seeid. at 451
(Gee, J., concurring and dissenting). A consent decree "cannot dispose of the valid claims of nonconsenting intervenors; if properly raised, these claims remain and may be litigated by the intervenor." Local 93,478 U.S. at 529
, 106 S. Ct. at 3079.
Courts must be especially cautious when parties seek to
achieve by consent decree what they cannot achieve by their own
authority. Consent is not enough when litigants seek to grant
themselves powers they do not hold outside of court. People Who
Care v. Rockford Bd. of Educ.,
961 F.2d 1335, 1337
(7th Cir. 1992). For example, a local government may not use a consent decree to avoid a state law requiring a referendum before the issuance of construction bonds. Dunn v. Carey,808 F.2d 555, 560
(7th Cir.
1986).
We expressed our concern regarding the risks attending consent
decrees in Overton v. City of Austin,
748 F.2d 941
(5th Cir. 1984).
In that case, plaintiffs and the city attorney, acting for the city
15
In the same passage, Wright reminds us that "authority to
adopt a consent decree comes only from the statute which the
decree is intended to enforce."
364 U.S. at 651
.
26
council, proposed a decree substituting single-member council
districts for the at-large council established by the city charter.
A dissenting council member maintained that the council lacked the
authority to change the existing scheme without a city-wide
referendum.
Id.
at 947 n.5. In the district court, several black
voters sought to intervene as defendants on the ground that
subdistricting would curtail their voting power. Id. at 944. The
plaintiffs petitioned for a writ of mandamus to compel the district
court to implement the proposed decree without further
consideration. We refused to issue the writ. In doing so, Overton
recognized the danger of manipulation faced by federal courts. We
may be asked to effectuate substantive results that government
officials are not empowered to bring about themselves. Id. at 956.
The risk can be realized in many ways, but is palpable where
sharply divided state officials would draw the federal courts into
a partisan political battle.
Our job is to decide a case or controversy. The parties'
high-strung rhetoric does not fully obscure the reality that a live
controversy yet exists. By declining to remand this case, we do
not slow one whit any march for change in Texas. Its elected
leaders are always free to pursue whatever scheme they think best,
through the normal political process. Texas links the jurisdiction
and electoral bases of its district judges and the still-contested
question for this court is its legality.
The procedural posture of this case when the request to remand
to the district court was heard is important. The issues in this
27
case were well known to the entire court. The case had been fully
tried and its appeal had twice been before a panel of this court
and was before the en banc court a second time. The issues had
been fully aired in the panel majority and dissenting opinion when
this court vacated the panel opinion. In sum, we are asked to
remand to the district court to consider entry of a "consent"
decree and to decide whether it would "put the court's sanction on
and power behind a decree that violates Constitution, statute, or
jurisprudence." City of Miami,
664 F.2d at 441
(Rubin, J.). More precisely put, any federal decree must be a tailored remedial response to illegality. Cf. Shaw v. Reno,113 S.Ct. 2816
(1993).
We are asked to remand for this determination although we are not
persuaded that there is any illegality.
It is not a matter of our withholding announcement of our
decision. We could not, in any event, remand without correcting
the district court's misapprehensions of law, found even by our
dissenting colleagues. Significant legal errors infected the trial
court's earlier judgment, including its refusal to consider the
effect of partisan voting, its finding of liability in Travis
County now undefended, its selective aggregation of language and
ethnic minorities, its refusal to accord weight to the State's
linkage interest in the totality of the circumstances, and finally,
its heavy reliance upon historical societal discrimination without
bringing this history home to this case. We cannot escape this
error-correcting task--and when it is done, there is no case. The
amicus United States agrees with our conclusion that, once the
28
proper legal standards are determined, the record presents no
factual issue that needs revisiting. It follows that the proposed
consent decree cannot respond to sufficiently identified
illegality--because the record demonstrates that there is none.
E. Chisom v. Edwards
Finally, the parties urging remand point to Chisom v. Edwards,
970 F.2d 1408
(5th Cir. 1992), where we remanded a voting rights case for the district court to enter a consent decree. That case challenged the method of electing Louisiana's Supreme Court Justices. Chisom v. Roemer,111 S. Ct. 2354, 2358
(1991). Our
remand in Chisom, however, resulted from different circumstances.
First, all parties joined the motion to remand, as we were
careful to point out in our order:
The Joint Motion to Remand to Effectuate Settlement filed
by all parties is hereby granted; and this case is
remanded to the United States District Court for the
Eastern District of Louisiana for the limited purpose of
effectuating a settlement. Jurisdiction of the appeals
is hereby retained. Upon notification that a consent
judgment has been entered by the district court, the
appeals will be dismissed. We express no opinion, of
course, on the settlement or judgment.
Chisom,
970 F.2d at 1409
(emphasis added). As we have discussed,
the same is not true here.16
16
For the same reason, Supreme Court authority does not
require a remand. In Turnock v. Ragsdale,
493 U.S. 987
(1989), the Court granted the parties' joint motion to defer further proceedings for the parties to submit a proposed consent decree to the district court. Unlike the case before us, the joint motion in Turnock was a true joint motion; there were no objections. See Ragsdale v. Turnock,941 F.2d 501, 503
(7th Cir.
1991) (recounting procedural history). In spite of its label,
the Attorney General's motion is far from being a joint motion.
29
Second, the parties in Chisom came to this court asking for
remand carrying a duly enacted state law with them. They did not
seek to invoke the preemptive force of the federal law. The decree
in Chisom was agreed to by all parties and adopted into law by the
state legislature. The consent decree did not set aside any state
laws--and not by accident. It was carefully crafted to that end.
In Louisiana, the legislature can create more supreme court
districts with a two-thirds vote from both houses. La. Const. Art
5, § 4.17 Article 5, § 3 of the Louisiana Constitution fixes the
number of supreme court justices at seven and establishes that each
shall serve a ten-year term.18 Because the state wished to create
the Orleans district without upsetting the terms of the sitting
justices, Louisiana had to temporarily expand the supreme court to
eight members.19
17
Art. 5, § 4 provides:
The state shall be divided into at least six supreme court
districts, and at least one judge shall be elected from
each. The districts and the number of judges assigned to
each on the effective date of this constitution are
retained, subject to change by law enacted by two-thirds of
the elected members of each house of the legislature.
18
Art. 5, § 3 provides:
The supreme court shall be composed of a chief justice and
six associate justices, four of whom must concur to render
judgment. The term of a supreme court judge shall be ten
years.
19
Louisiana's first effort to create an eighth position, and
thereby resolve the Chisom litigation, came in 1989 in the form
of a proposed constitutional amendment. However, the voters
rejected the proposal. See La. Const. Art. 5, §§ 4, 35,
Historical Notes.
30
While § 3 limits the size of the supreme court to seven
justices, Art. 5, § 5(A) permits the Louisiana Supreme Court to
"assign a sitting or retired judge to any court." La. Const. Art.
5, § 5(A). The legislature therefore created an additional place
for a judge on the Court of Appeal for the Fourth Circuit, who,
upon election, would be assigned to the supreme court to serve, in
reality, as the eighth justice. See La. Rev. Stat. Ann. § 13:312.4
(West Supp. 1993). This temporary judgeship was to expire with a
vacancy on the supreme court from the first district. The vacancy
would be filled by an election in the newly created seventh
district comprised of Orleans Parish. La. Rev. Stat. Ann.
§ 13:101.1 (West Supp. 1993). Both of these provisions were
contained in Act 512 which, after receiving the required two-thirds
vote in both houses of the legislature, became law on June 22,
1992. Official Journal of the Proceedings of the Senate of the
State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official
Journal of the Proceedings of the House of the State of Louisiana,
18th Reg. Sess. at 31 (June 16, 1992). The Louisiana Legislature
provided that Act 512 would not go into effect unless the federal
court entered a consent decree in Chisom. La. Rev. Stat. Ann.
§ 13:101.l (West Supp. 1993).
The Texas Legislature refused to take positive action, and the
settlement agreement attempts to avoid constitutional requirements.
The Texas Constitution requires that judges be elected from
districts no smaller than a county, absent a majority vote by the
31
citizens of that county. Tex. Const. Art. 5, §§ 7, 7a(i).20 The
settlement agreement is not contingent on approval by the voters of
each county. The legislature has not proposed a constitutional
amendment. It has made no laws.
F. Federalism
Then we have all sides claiming the high ground of federalism.
Some of the assertions are creative. The suggestion that state
political groups, unable to muster sufficient political force to
change the system, can by "agreement" enlist the preemptive power
of the federal court to achieve the same end stands federalism on
its head. Of course, we defer to legislative will and state
decision. Here, the "decision" to which we are asked to defer is
a decision by a political faction that the federal court should
order the state to change its system. We do not share this curious
view of federalism.
20
Art. 5, § 7 provides:
The state shall be divided into judicial districts,
with each district having one or more judges as may be
provided by law or by this Constitution. . . .
Art. 5, § 7a(i) provides:
The legislature, the Judicial Districts Board, or the
Legislative Redistricting Board may not redistrict the
judicial districts to provide for any judicial district
smaller in size than an entire county except as provided by
this section. Judicial districts smaller in size than the
entire county may be created subsequent to a general
election where a majority of the persons voting on the
proposition adopt the proposition "to allow the division of
County into judicial districts composed of parts of
County." No redistricting plan may be proposed or
adopted by the legislature, the Judicial Districts board, or
the Legislative Redistricting Board in anticipation of a
future action by the voters of any county.
32
III. Racial Bloc Voting
As amended, § 2 of the Voting Rights Act prohibits states from
imposing or applying any "standard, practice, or procedure . . .
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."
A minority group may establish a violation of this provision by
proving "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."21 Congress intended "to
make clear that proof of discriminatory intent is not required to
establish a violation of Section 2" by "restor[ing] the legal
21
Section 2 reads in full:
(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 4(f)(2), as provided in subsection (b) of this
section.
(b) A violation of subsection (a) 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
.
33
standards" which prevailed in constitutional voting discrimination
cases prior to Mobile v. Bolden,
446 U.S. 55
(1980). S. Rep. 417 at 2, reprinted in 1982 U.S. Code Cong. & Admin. News at 206. Specifically, the 1982 amendments "codify" the "results test" articulated in White v. Regester,412 U.S. 755
(1973).Id.
Section 2 claims brought against multimember schemes are governed by the framework established in Thornburg v. Gingles,478 U.S. 30
(1986). Under Gingles, plaintiffs challenging an at-large system on behalf of a protected class of citizens must demonstrate that (1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate. Growe v. Emison,113 S.Ct. 1075, 1084
(1993); Gingles,478 U.S. at 50-51
. Satisfaction of these three "preconditions," Voinovich v. Quilter,113 S.Ct. 1149, 1157
(1993), is necessary, Gingles,478 U.S. at 50
, but not sufficient to establish liability under § 2. Chisom v. Roemer,111 S.Ct. 2354, 2365
(1991); Citizens for Better Gov't v. City of Westwego,946 F.2d 1109, 1116
(5th Cir.
1991) (Westwego III). Plaintiffs must also show that, under the
"totality of circumstances," they do not possess the same
opportunities to participate in the political process and elect
representatives of their choice enjoyed by other voters. Courts
34
are guided in this second inquiry by the so-called Zimmer factors
listed in the Senate Report.22
22
The Senate Report indicates that "[t]ypical factors
include":
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.
Additional factors that in some cases have had probative value as
part of plaintiffs' evidence to establish a violation are:
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.
35
A central issue here, one that divided the panel and one over
which the parties vigorously disagree, concerns Gingles' white bloc
voting inquiry and the closely related Zimmer factor directing
courts to examine "the extent to which voting . . . is racially
polarized." S. Rep. 417 at 29, reprinted in 1982 U.S. Code Cong.
& Admin. News at 206. As the Court in Gingles held, the question
here is not whether white residents tend to vote as a bloc, but
whether such bloc voting is "legally significant." Gingles,
478 U.S. at 55
; Salas v. Southwest Texas Jr. College Dist.,964 F.2d 1542, 1553
(5th Cir. 1992). In finding a violation of § 2 in each
of the nine challenged counties, the district court held that
plaintiffs need only demonstrate that whites and blacks generally
support different candidates to establish legally significant white
bloc voting. Because "it is the difference between choices made by
blacks and whites alone . . . that is the central inquiry of § 2,"
the court excluded evidence tending to prove that these divergent
voting patterns were attributable to factors other than race as
"irrelevant" and "legally [in]competent."
On appeal, defendants contend that the district court erred in
refusing to consider the nonracial causes of voting preferences
they offered at trial. Unless the tendency among minorities and
whites to support different candidates, and the accompanying losses
S. Rep. 417 at 28-29, reprinted in 1982 U.S. Code Cong. & Admin.
News at 206-07. These factors are derived from our decision in
Zimmer v. McKeithen,
485 F.2d 1297
(5th Cir. 1973), aff'd sub nom East Carroll Parish School Board v. Marshall,424 U.S. 636
(1976), as well as White. See S. Rep. 417 at 28 n.113, reprinted
in 1982 U.S. Code Cong. & Admin. News at 206 n.113.
36
by minority groups at the polls, are somehow tied to race,
defendants argue, plaintiffs' attempt to establish legally
significant white bloc voting, and thus their vote dilution claim
under § 2, must fail. When the record indisputably proves that
partisan affiliation, not race, best explains the divergent voting
patterns among minority and white citizens in the contested
counties, defendants conclude, the district court's judgment must
be reversed.
We agree. The scope of the Voting Rights Act is indeed quite
broad, but its rigorous protections, as the text of § 2 suggests,
extend only to defeats experienced by voters "on account of race or
color." Without an inquiry into the circumstances underlying
unfavorable election returns, courts lack the tools to discern
results that are in any sense "discriminatory," and any distinction
between deprivation and mere losses at the polls becomes untenable.
In holding that the failure of minority-preferred candidates to
receive support from a majority of whites on a regular basis,
without more, sufficed to prove legally significant racial bloc
voting, the district court loosed § 2 from its racial tether and
fused illegal vote dilution and political defeat. In so doing, the
district court ignored controlling authorities: Whitcomb v.
Chavis,
403 U.S. 124
(1971), which established a clean divide
between actionable vote dilution and "political defeat at the
polls"; the 1982 amendments, enacted to restore a remedy in cases
"where a combination of public activity and private discrimination
have joined to make it virtually impossible for minorities to play
37
a meaningful role in the electoral process," Hearings on the Voting
Rights Act Before the Subcomm. on the Constitution of the Senate
Comm. of the Judiciary, 97th Cong., 2d Sess. 1367-68 (statement of
Prof. Drew Days) (emphasis added); and Thornburg v. Gingles,
478 U.S. 30
(1986), where a majority of the Justices rejected the very test employed by the district court as a standard crafted to shield political minorities from the vicissitudes of "interest-group politics rather than a rule hedging against racial discrimination."Id. at 83
(White, J., concurring);id. at 101
(O'Connor, J., joined
by Burger, C.J., Powell and Rehnquist, JJ., concurring). We must
correct these errors.
A. Whitcomb v. Chavis and White v. Regester
The Senate Report indicates that the 1982 amendments to § 2
were intended to "codify" the results test as employed in White and
Whitcomb. See S. Rep. 417 at 2, 20-23, 32-33, reprinted in 1982
U.S. Code Cong. & Admin. News at 197-201, 210-11; Gingles,
478 U.S. at 97
(O'Connor, J., concurring) ("In enacting § 2, Congress
codified the 'results' test this Court had employed, as an
interpretation of the Fourteenth Amendment, in White and
Whitcomb"); Jones v. City of Lubbock,
727 F.2d 364, 379
(5th Cir. 1984) (the amended § 2 "codifies pre-Bolden voting dilution law"). Consequently, "it is to Whitcomb and White that we should look in the first instance in determining how great an impairment of minority voting strength is required to establish vote dilution in violation of § 2." Gingles,478 U.S. at 97
(O'Connor, J.,
concurring).
38
In Whitcomb, black citizens residing in one part of Marion
County, referred to as the "ghetto" by the Court, claimed that the
county's at-large method of electing members to the state
legislature unconstitutionally diluted their votes. The "[s]trong
differences" between "ghetto" residents and adjacent communities
"in terms of housing conditions, income and educational levels,
rates of unemployment, juvenile crime, and welfare assistance,"
403 U.S. at 132
,23 correlated closely with voting patterns in the county. "Ghetto" residents "voted heavily Democratic," but since the county's more affluent white majority consistently voted Republican, black-preferred candidates were defeated in four of the five elections between 1960 and 1968.Id. at 150
. The Whitcomb Court recognized that the at-large electoral scheme caused the "voting power of ghetto residents [to be] 'cancelled out,'"id. at 153
, but held that this result by itself did not provide grounds
for relief. Noting that blacks enjoyed full access to the
political process,24 the Court reasoned that "had the Democrats won
23
See also Chavis v. Whitcomb,
305 F. Supp. 1364, 1376-81
(S.D. Ind. 1969).
24
The Court stated:
We have discovered nothing in the record or in the
court's findings indicating that poor Negroes were not
allowed to register or vote, to choose the political
party they desired to support, to participate in its
affairs or to be equally represented on those occasions
when legislative candidates were chosen. Nor did the
evidence purport to show or the court find that
inhabitants of the ghetto were regularly excluded from
the slates of both major parties, thus denying them the
chance of occupying legislative seats.
Id. at 149-50.
39
all of the elections or even most of them, the ghetto would have no
justifiable complaints about representation." Id. at 152. For
this reason, the Court concluded that the "failure of the ghetto to
have legislative seats in proportion to its population emerges more
as a function of losing elections than of built-in bias against
poor Negroes." Id. at 153.
The Whitcomb Court was reluctant to view the plaintiffs'
claims of vote dilution as anything more than "a euphemism for
political defeat at the polls," id., for, absent evidence of a lack
of access to the political system, there was no principle by which
the Court could distinguish the "ghetto's" claims and those of
other unsuccessful political groups:
[A]re poor Negroes of the ghetto any more under-
represented than poor ghetto whites who also voted
Democratic and lost, or any more discriminated against
than other interest groups or voters in Marion County
with allegiance to the Democratic Party, or, conversely,
any less represented than Republican areas or voters in
years of Republican defeat? We think not. The mere fact
that one interest group or another concerned with the
outcome of Marion County elections has found itself
outvoted and without legislative seats of its own
provides no basis for invoking constitutional remedies
where, as here, there is no indication that this segment
of the population is being denied access to the political
system.
Id. at 154-55. To grant relief to black residents in this case,
the Court held, "would make it difficult to reject claims of
Democrats, Republicans, or members of any political organization in
Marion County who live in what would be safe districts in a single-
member district system but who in one year or another, or year
after year, are submerged in a multimember district vote." Id. at
156.
40
The Court's assertion that plaintiffs' racial vote dilution
claim was indistinguishable from complaints which might be brought
by any unsuccessful interest group hinged on its determination that
"ghetto" residents did not suffer from a lack of access to the
political process. Despite the presence of vast disparities in
virtually every significant measure of socioeconomic status, the
Court found that black voters stood on the same footing with whites
in vying for representation within Marion County. "Ghetto"
residents had in fact experienced a string of losses at the polls
in recent years, but these defeats were shared equally among all
members of the Democratic Party.
The Court confronted very different circumstances two years
later in White v. Regester,
412 U.S. 755
(1973). The Court confirmed Whitcomb's rejection of the claim that "every racial or political group has a constitutional right to be represented in the state legislature,"id. at 769
, and reiterated the standard established in its earlier decision: a minority group must prove "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 (citing Whitcomb,403 U.S. at 149-50
). Unlike the plaintiffs in Whitcomb, however, the black residents of Dallas County and the Hispanic voters in Bexar County each established that they had been effectively excluded from the political processes leading to the nomination and election of the Texas House of Representatives.412 U.S. at 766-70
.
41
Specifically, black voters in Dallas labored under the yoke of
Texas' long history of official discrimination and were subjected
to several procedural devices which, while not invidious in
themselves, "enhanced the opportunity for racial discrimination."
Id. at 766
. "More fundamentally," the Court noted, the Dallas Committee for Responsible Government, "a white-dominated organization that is in effective control of Democratic Party candidate slating," had slated only two black candidates in its history, who, not coincidentally, constituted the only two blacks ever to have served in the Dallas County delegation to the Texas House since Reconstruction.Id. at 766-67
. The DCRG failed to display any "good-faith concern for the political and other needs and aspirations of the Negro community," and in fact regularly relied on racial campaign tactics to defeat candidates supported by black residents.Id. at 767
. Consequently, the Court had no reason to disturb the district court's conclusion "that 'the black community has been effectively excluded from participation in the Democratic primary selection process,' and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner."Id.
(quoting Graves v. Barnes,343 F. Supp. 704, 726
(W.D. Tex. 1972)).
The Court also upheld a similar finding that Mexican-Americans
likewise had been "'effectively removed from the political
processes of Bexar [County] in violation of all the Whitcomb
standards.'"
Id.
at 769 (quoting Graves,343 F. Supp. at 733
).
Like black residents of Texas, Mexican-Americans "had long
42
'suffered from, and continue[d] to suffer from, the results and
effects of invidious discrimination and treatment in the field of
education, employment, economics, health, politics and others.'"
Id.
at 768 (quoting Graves,343 F. Supp. at 728
)). In addition, the district court determined that "cultural and language barrier[s] . . . 'conjoined with the poll tax and the most restrictive voter registration procedures in the nation have operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.'"Id.
(quoting Graves,343 F. Supp. at 731
). The exclusionary effects of past and present discrimination, the Court found, were palpably reflected in low voting registration among Mexican-Americans, the election of only five Bexar County Mexican-Americans to the Texas Legislature since 1880, and the county delegation's unresponsiveness to the community's interests.Id. at 768-69
. Given that the district court's findings flowed from "a blend of history and an intensely local appraisal" of conditions in Bexar County, the Court was "not inclined to overturn" its conclusion that the multimember district "invidiously excluded Mexican-Americans from effective participation in political life."Id. at 769
. As we will explain,
this earlier time in Texas history and the elections at issue here
present stark contrasts. The record before us contains no evidence
that past or present discrimination has affected minorities'
political access in any way.
43
The principles announced and applied in Whitcomb and White are
instructive and, we believe, controlling. As Justice White, the
author of these opinions, recently indicated, the central "theme"
of Whitcomb and White is "that it is not mere suffering at the
polls but discrimination in the polity with which the Constitution
is concerned." Shaw v. Reno,
113 S.Ct. 2816, 2835
(1993) (White, J., dissenting). Beyond the bounds of this litigation, the clarity with which the Whitcomb Court articulated the principles underlying the "results" test has largely forestalled confusion or doubt, even among those whom plaintiffs might be inclined to count as allies. See, e.g., Jones v. City of Lubbock,727 F.2d 364, 384
(5th Cir.
1984) ("Even where an at-large system interacts with a racially or
ethnically polarized electorate to the disadvantage of the
minority, the 'result' is not necessarily a denial of political
access . . . . [T]he 'result' in Whitcomb [is] that polarized
voting does not render an at-large system dilutive of minority
voting strength"); Pamela S. Karlan, Undoing the Right Thing:
Single-Member Offices and the Voting Rights Act,
77 Va. L. Rev. 1
, 22 n.78 (1991). Justice Marshall, for example, provided a clear explanation of the Court's holding in his dissent in Mobile v. Bolden,446 U.S. 55
(1980):
In Whitcomb v. Chavis, we again repeated and applied the
Fortson [effects] standard, but determined that the Negro
community's lack of success at the polls was the result
of partisan politics, not racial vote dilution. The
Court stressed that both the Democratic and Republican
Parties had nominated Negroes and several had been
elected. Negro candidates lost only when their entire
party slate went down to defeat. In addition, the Court
was impressed that there was no finding that officials
had been unresponsive to Negro concerns.
44
Id. at 109
(Marshall, J., dissenting) (citations omitted).
Justice Marshall's references to the "lack of success at the
polls" as a "result" of "partisan politics, not racial vote
dilution," closely tracks the relevant language in Whitcomb, where
the Court held that the "cancell[ing] out" of the "voting power of
ghetto residents" was more "a function of losing elections" or
"political defeat" than of "built-in bias against poor Negroes."
403 U.S. at 153
. Absent evidence that minorities have been
excluded from the political process, a "lack of success at the
polls" is not sufficient to trigger judicial intervention. Courts
must undertake the additional inquiry into the reasons for, or
causes of, these electoral losses in order to determine whether
they were the product of "partisan politics" or "racial vote
dilution," "political defeat" or "built-in bias." It is only upon
concluding that a minority group's failure to prevail at the polls,
that is, their failure to attract the support of white voters, was
the "result" or "function" of "racial vote dilution" or "built-in
bias," that a court may find that minority plaintiffs have suffered
"a denial or abridgement of the right . . . to vote on account of
race or color." In sum, Whitcomb unmistakably prescribes the very
inquiry into the causes underlying the lack of support for
minority-preferred candidates among white voters with which the
district court dispensed.
As Justice Marshall suggested, failures of a minority group to
elect representatives of its choice that are attributable to
"partisan politics" provide no grounds for relief. Section 2 is "a
45
balm for racial minorities, not political ones--even though the two
often coincide." Baird v. Consolidated City of Indianapolis,
976 F.2d 357, 361
(7th Cir. 1992) (citing Whitcomb). "The Voting Rights Act does not guarantee that nominees of the Democratic Party will be elected, even if black voters are likely to favor that party's candidates."Id.
Rather, § 2 is implicated only where
Democrats lose because they are black, not where blacks lose
because they are Democrats. While this rule is easier stated than
applied, the Whitcomb Court's application of the "results" test to
the facts before it provides helpful and indeed dispositive
guidance. As we explain in greater detail below, the Court's
dismissal in Whitcomb of the plaintiffs' vote dilution claim as a
"mere euphemism for political defeat at the polls," despite
evidence of polarized voting, the lingering effects of past
discrimination, and little electoral success among minority
candidates, precludes finding a violation of § 2 in most, but not
all, of the counties at issue.
B. The 1982 Amendments
The Senate Report accompanying the 1982 amendments to § 2
states that Congress intended to "codify" the "results test"
articulated and employed in Whitcomb and White. Congress of course
retained the statutory language restricting relief under § 2 to
"denial[s] or abridgment[s] of the right . . . to vote on account
of race or color." This limitation was not so much the product of
legislative discretion as constitutional imperative, given that the
scope of Congress' remedial power under the Civil War Amendments is
46
defined in large part by the wrongs they prohibit. See, e.g., City
of Rome v. United States,
446 U.S. 156, 206
(1980) (Rehnquist, J., dissenting); Oregon v. Mitchell,400 U.S. 112, 152
(1970) (Harlan,
J., concurring in part and dissenting in part). Thus, the Senate
Report explained that the 1982 amendments avoided constitutional
difficulty because "the very terms and operation of [§ 2] confine
its application to actual racial discrimination." S.Rep. 417 at
43, reprinted in 1982 U.S. Code Cong. & Admin. News at 221.
Congress embraced Whitcomb on terms consistent with § 2's
limitation to cases of "actual racial discrimination." Noting that
the claim before the Court in Whitcomb alleged vote dilution on
grounds that "black ghetto residents with [distinct] legislative
interests had been consistently underrepresented in the
legislature," the Senate Report recounted what it regarded as the
relevant facts of the case:
The evidence showed that the ghetto area voted
Democratic, that the Republicans won four of the five
elections from 1960 to 1968, and that in 1964, when the
Democrats won, ghetto area senators and representatives
were elected. Nine blacks had in fact been elected to
the legislature from the at-large districts between
[1960] and 1968.
Id. at 20-21, reprinted in 1982 U.S. Code Cong. & Admin. News at
198. The facts cited by the Senate mirror those previously
identified by Justice Marshall in Bolden and stressed here:
Plaintiffs were unsuccessful in years in which their party suffered
electoral defeat; they were able to elect representatives of their
choice when their party prevailed. Not surprisingly, the Senate
47
adopted Whitcomb's central teaching in presenting what it
understood to be the kernel of the decision:
The failure of the ghetto to have legislative seats in
proportion to its population emerges more as a function
of losing elections than of built-in bias against poor
Negroes. The voting power of ghetto residents may have
been "cancelled out," as the district court held, but
this seems a mere euphemism for political defeat at the
polls.
Id. at 21 (quoting Whitcomb,
403 U.S. at 153
), reprinted in 1982
U.S. Code Cong. & Admin. News at 198.
In keeping with Whitcomb's sharp distinction between "built-in
bias" and "political defeat at the polls," the Senate Report
indicated that a proper application of the results test requires
courts to "distinguish[] between situations in which racial
politics play an excessive role in the electoral process, and
communities in which they do not." Id. at 33, reprinted in 1982
U.S. Code Cong. & Admin. News at 211. The Senate Report, again
following Whitcomb, accorded this inquiry into "racial bloc
voting," that is, whether "'race is the predominant determinant of
political preference,'" dispositive significance: Absent a showing
of "racial bloc voting," the Senate Report asserted, "it would be
exceedingly difficult for plaintiffs to show that they were
effectively excluded from fair access to the political process
under the results test." Id. (quoting S.Rep. 417 at 148 (Report of
the Subcommittee on the Constitution)), reprinted in 1982 U.S. Code
Cong. & Admin. News at 321). Since the results test itself,
contrary to critics' charges, "makes no assumptions one way or the
other about the role of racial political considerations in a
48
particular community," id. at 34, reprinted in 1982 U.S. Code Cong.
& Admin. News at 212, the Senate Report emphasized that plaintiffs
must supply affirmative proof of "racial bloc voting." The "mere
existence of underrepresentation plus a history of dual schools"
plainly does not suffice to make out a violation of § 2. Id.
It is difficult to see how the record in this case could
possibly support a finding of liability under the approach outlined
in the Senate Report. Plaintiffs have not even attempted to
establish proof of racial bloc voting by demonstrating that "race,"
not, as defendants contend, partisan affiliation, "is the
predominant determinant of political preference." They have
instead maintained, in the very teeth of the Senate Report, that
such a showing is unnecessary. Because the district court accepted
this argument, the test employed at trial enabled plaintiffs to
prevail by proving little more than a lack of success at the polls
and a history of discrimination. While this standard finds clear
support in Justice Brennan's plurality opinion in Thornburg v.
Gingles,
478 U.S. 30
(1986), it "simply was not the approach used
by the courts under the White/Zimmer test" and codified by
Congress. S. Rep. 417 at 34, reprinted in 1982 U.S. Code Cong. &
Admin. News at 212.
C. Thornburg v. Gingles
Justice Brennan's discussion of the first and second Gingles
factors received majority support. Gingles,
478 U.S. at 50-51
,
49
56.25 With respect to the third element, however, five justices
rejected Justice Brennan's proposed standard for proving racial
bloc voting.
Id. at 83
(White, J., concurring);id. at 100-01
(O'Connor, J., joined by Burger, C.J., Powell and Rehnquist, JJ.,
concurring). For this reason, we believe that it is to these
opinions, not Justice Brennan's, that we should look in attempting
to define the contours of the inquiry into legally significant bloc
voting.
Despite the presence of express language to the contrary in
the Senate Report, see S. Rep. 417 at 33 ("racial bloc voting" is
established when "race is the predominant determinant of political
preference"), reprinted in 1982 U.S. Code Cong. & Admin. News at
211, Justice Brennan held that racial bloc voting or "racially
polarized voting" did not describe divergent "voting patterns for
which the principal cause is race." Gingles,
478 U.S. at 61
. Instead, he asserted that "[i]t is the difference between the choices made by blacks and whites--not the reasons for that difference--that [matters]."Id.
A consideration of "irrelevant
variables" such as partisan affiliation or the race of the
candidate, Justice Brennan urged, would "distort[] the equation and
25
In order to make out a § 2 vote dilution claim under
Gingles, minority plaintiffs challenging an at-large system must
prove that: (1) the group is sufficiently large and
geographically compact to constitute a majority in a single-
member district; (2) it is politically cohesive; and (3) the
white majority votes sufficiently as a bloc to enable it usually
to defeat the minority's preferred candidate. Gingles,
478 U.S. at 50-51
.
50
yield[] results that are indisputably incorrect under § 2 and the
Senate Report." Id. at 64.
Justice Brennan's assertion that racial political
considerations had no role in examining racial bloc voting was
squarely rejected by five Justices in Gingles.
478 U.S. at 83
(White, J., concurring);id. at 100-01
(O'Connor, J., joined by
Burger, C.J., Powell and Rehnquist, JJ., concurring). Justice
White argued that
Justice Brennan states in Part III-C that the crucial
factor in identifying polarized voting is the race of the
voter and that the race of the candidate is irrelevant.
Under this test, there is polarized voting if the
majority of white voters vote for different candidates
than the majority of the blacks, regardless of the race
of the candidates. I do not agree. Suppose an eight-
member multimember district that is 60% white and 40%
black, the blacks being geographically located so that
two safe black single-member districts could be drawn.
Suppose further that there are six white and two black
Democrats running against six white and two black
Republicans. Under Justice Brennan's test, there would
be polarized voting and a likely § 2 violation if all the
Republicans, including the two blacks, are elected, and
80% of the blacks in the predominately black areas vote
Democratic . . . . This is interest-group politics
rather than a rule hedging against racial discrimination.
I doubt that this is what Congress had in mind in
amending § 2 as it did, and it seems quite at odds with
the discussion in Whitcomb v. Chavis,
403 U.S. 124
, 149-
160 (1971).
Id. at 83 (White, J., concurring) (emphasis added). Justice
O'Connor joined Justice White in maintaining that evidence that
white and minority voters generally supported different candidates
did not constitute legally significant racial bloc voting where
these patterns were attributable to partisan affiliation rather
than the race of the candidate. She therefore rejected Justice
Brennan's position that
51
evidence that the divergent racial voting patterns may be
explained in part by causes other than race, such as an
underlying divergence in the interests of minority and
white voters . . . . can never affect the overall vote
dilution inquiry. Evidence that a candidate preferred by
the minority group in a particular election was rejected
by white voters for reasons other than those which made
that candidate the preferred choice of the minority group
would seem clearly relevant in answering the question
whether bloc voting by white voters will consistently
defeat minority candidates. Such evidence would suggest
that another candidate, equally preferred by the minority
group, might be able to attract greater white support in
future elections.
I believe Congress also intended that explanations
of the reasons why white voters rejected minority
candidates would be probative of the likelihood that
candidates elected without decisive minority support
would be willing to take the minority's interests into
account. In a community that is polarized along racial
lines, racial hostility may bar these and other indirect
avenues of political influence to a much greater extent
than in a community where racial animosity is absent
although the interests of racial groups diverge. Indeed,
the Senate Report clearly stated that one factor that
could have probative value in § 2 cases was "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." S. Rep., at 29. The
overall vote dilution inquiry neither requires nor
permits an arbitrary rule against consideration of all
evidence concerning voting preferences other than
statistical evidence of racial voting patterns. Such a
rule would give no effect whatever to the Senate Report's
repeated emphasis on "intensive racial politics," on
"racial political considerations," and on whether "racial
politics . . . dominate the electoral process" as one
aspect of the "racial bloc voting" that Congress deemed
relevant to showing a § 2 violation. Id., at 33-34.
Similarly, I agree with Justice White that Justice
Brennan's conclusion that the race of the candidate is
always irrelevant in identifying racially polarized
voting conflicts with Whitcomb and is not necessary to
the disposition of this case. Ante, at 83 (concurring).
Id. at 100-01 (O'Connor, J., concurring) (emphasis added).
As courts and commentators alike have noted, Justice White and
Justice O'Connor were united in their fidelity to Whitcomb's
52
distinction between vote dilution and partisan politics and in
their opposition to Justice Brennan's attempt to expunge this
teaching from the bloc voting inquiry. See, e.g., Baird v.
Consolidated City of Indianapolis,
976 F.2d 357, 361
(7th Cir.
1992) ("Justice White . . . observ[ed] that system leading to the
election of black Republicans could not be dismissed as
discriminatory. To disregard the race of the victors, Justice
White concluded, 'is interest-group politics rather than a rule
hedging against racial discrimination.' Justice O'Connor agreed")
(citation omitted); Note, Voting Rights Act Section 2: Racially
Polarized Voting and the Minority Community's Representative of
Choice,
89 Mich. L. Rev. 1038
, 1044 (1991); Note, Defining the Minority Preferred Candidate Under Section 2,99 Yale L.J. 1651
,
1662-63 (1990). The division in Gingles between the Brennan
plurality and the five Justices who supported the White/O'Connor
approach cuts deep, reflecting quite different visions of voting
rights and their statutory treatment. Since these five Justices
expressly rejected a test that would permit § 2 liability to attach
upon a showing that white and black citizens generally gave their
votes to different candidates in favor of an inquiry into the
possible explanations of these divergent voting patterns, we
believe that it is this view, not Justice Brennan's, that commands
our allegiance. The district court's failure to accord similar
weight to this approach was not justified.
All members of the Court in Gingles agreed that only "legally
significant" racial bloc voting is cognizable under § 2. They
53
disagreed sharply, however, on the sort of proof that would
implicate this provision. Justice Brennan held that a "minority
must be able to demonstrate that the white majority votes
sufficiently as a bloc to enable it . . . usually to defeat the
minority's preferred candidate." Gingles,
478 U.S. at 51
. Justice O'Connor, on the other hand, argued that such a showing did not warrant judicial intervention: "[A] reviewing court should be required to find more than simply that the minority group does not usually attain an undiluted measure of electoral success."Id. at 99
(O'Connor, J., concurring). Instead, she would require a court to "find that even substantial minority success will be highly infrequent under the challenged plan before it may conclude, on this basis alone, that the plan operates to 'cancel out or minimize the voting strength of [the] racial grou[p].'"Id.
at 99-100 (quoting White,412 U.S. at 765
) (alterations in original).
Justice O'Connor's admonition that federal courts should stay
their hand absent proof that "even substantial minority success
will be highly infrequent" receives formal expression in her
insistence that the racial bloc voting inquiry must include an
examination of the causes underlying divergent voting patterns.
Both Justice Brennan and Justice O'Connor recognized that racial
bloc voting is intimately related to the responsiveness of elected
officials to the interests of minorities, one of the factors
considered as part of the "totality of circumstances." As Justice
Brennan indicated, "[n]ot only does '[v]oting along racial lines'
deprive minority voters of their preferred representatives in these
54
circumstances, it also 'allows those elected to ignore [minority]
interests without fear of political consequences.'"
Id.
at 48 n.14 (quoting Rogers v. Lodge,458 U.S. 613, 623
(1982) (alterations in original)). The close tie between bloc voting and representatives' responsiveness noted by the Court in Rogers and confirmed by Justice Brennan rests on common sense: Public officials need not address concerns expressed by minorities so long as white bloc voting ensures that they will remain minority concerns. The Court in Rogers and Justice Brennan, however, differed sharply over the sort of polarized voting that might provide elected officials with such assurances and federal courts with grounds to intervene. The Court in Rogers held that this close identification was warranted only where racial political considerations were present, that is, where white bloc voting caused "minority candidates [to] lose elections solely because of their race." Rogers,458 U.S. at 623
(emphasis added). Justice Brennan's approach, by contrast, assumes
that political leaders may safely ignore minority concerns even
where black and white voters are separated only by differing
interests. Put another way, Justice Brennan's bloc voting test
accords governing majorities linked only by the perception of
common interests the same permanence and thus relevance under § 2
as white blocs cemented by racial prejudice.
Justice O'Connor not only rejected Justice Brennan's polarized
voting standard but was also unwilling to join in the questionable
assumption that minorities are unable to influence elections and
secure the attention of public officials where these groups have
55
been unsuccessful in their efforts to elect their preferred
representatives. Gingles,
478 U.S. at 100-101
(O'Connor, J., concurring). Unlike Justice Brennan, she argued that "Congress also intended that explanations of the reasons why white voters rejected minority candidates would be probative of the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account."Id. at 100
(O'Connor, J., concurring). Following Rogers, Justice O'Connor believed that a minority group's prospects for future electoral success and the likelihood that elected officials will take account of their interests differ materially "in a community where racial animosity is absent although the interests of racial groups diverge."Id.
(O'Connor, J., concurring). A tendency among whites
to cast their votes on the basis of race presents a far more
durable obstacle to the coalition-building upon which minority
electoral success depends than disagreements over ideology for, as
Professor Ely observes, "prejudice blinds us to overlapping
interests that in fact exist." John Hart Ely, Democracy and
Distrust 153 (1980). Representatives who owe their office to the
support of majorities bound by prejudice need not attend to the
interests of minorities, since the bias uniting their constituents
ensures that these issues will remain minority concerns. Where, on
the other hand, voting patterns correlate with partisan affiliation
or perceived interest, the open channels of communication
facilitate a recognition of points of common ground that might
otherwise go undetected. Elected officials in these communities
56
cannot ignore minority interests because this group might be part
of the winning coalition that votes them out of office. The deep
division between Justice Brennan and Justice O'Connor on the
question of racial bloc voting thus reflects fundamentally
different views of political factions and our constitutional and
statutory arrangements for accommodating their simultaneous demands
for fluidity and fixity.26
26
The dissent contends that we have departed from
controlling Supreme Court precedent in requiring plaintiffs to
show more than divergent voting patterns among white and minority
voters in order to establish legally significant bloc voting.
The dissent properly points out that a majority of the Court in
Gingles held that racial bloc voting rests on proof that "the
white majority votes sufficiently as a bloc to enable it . . .
usually to defeat the minority's preferred candidate." Gingles,
478 U.S. at 51
. As the Court's recent unanimous decision in Voinovich v. Quilter,113 S. Ct. 1149, 1157
(1993), indicates,
this standard is hardly controversial. The Justices in Gingles,
however, were sharply divided on the crucial, separate issue of
the sort of showing necessary to establish "legally significant"
bloc voting--that is, the conditions that enable courts to
predict that a majority bloc will consistently "defeat the
minority's preferred candidate." The dissent correctly concludes
that the approach taken by Justice White and Justice O'Connor,
rather than that offered by Justice Brennan, should govern this
second inquiry. Thus, we are in full agreement with the dissent
that the possible causes of polarized voting must be examined
because "they call into question the consistency with which the
white bloc will oppose minority-preferred candidates." Dissent
at ___.
As we state in the text, we regard evidence that divergent
voting patterns are attributable to partisan affiliation or
perceived interests rather than race as quite probative on the
question of a minority group's future success at the polls. The
dissent, however, while apparently willing to consider other
possible non-racial causes, asserts that partisan affiliation is
insignificant. We are told, in fact, that "the Voting Rights
Act, as interpreted in Gingles and succeeding cases, presupposes
partisan voting." Dissent at ___. This refusal to distinguish
racial politics from partisan politics strikes us as utterly
inconsistent with the unbroken line of authority extending from
Whitcomb and White through Justice Marshall's dissent in Bolden
and the 1982 amendments to the controlling concurring opinions in
Gingles the dissent purports to embrace.
57
Given that the divergent voting patterns in this case are in
most instances attributable to partisan affiliation rather than
race, it is thus far from coincidental that the district court
found no evidence of unresponsiveness on the part of elected
officials in any of the contested counties. The irony, of course,
is that the subdistricting remedy sought by plaintiffs provides
most judges with the same opportunity to ignore minority voters'
interests without fear of political reprisal they would possess if
elections were in fact dominated by racial bloc voting.
D. Partisan Politics
We need not hold that plaintiffs must supply conclusive proof
that a minority group's failure to elect representatives of its
choice is caused by racial animus in the white electorate in order
to decide that the district court's judgment must be reversed. It
is true that such a requirement could be inferred from the text of
§ 2 (prohibiting "denial[s] or abridgement[s] of the right . . . to
vote on account of race or color"); the caselaw Congress intended
to codify in amending the provision, see, e.g., Whitcomb,
403 U.S. at 153
(vote dilution does not lie when losses at the polls do not
reflect "built-in bias against poor Negroes"); the Senate Report,
see S. Rep. 417 at 33 (equating proof of racial bloc voting with
evidence that "race is the predominant determinant of political
preference"), reprinted in 1982 U.S. Code Cong. & Admin. News at
211; the testimony of prominent supporters of the Act, see, e.g.,
Hearings on the Voting Rights Act Before the Subcomm. on the
Constitution of the Senate Comm. of the Judiciary, 97th Cong., 2d
58
Sess. 1367-68 (statement of Prof. Drew Days) (§ 2 implicated "where
a combination of public activity and private discrimination have
joined to make it virtually impossible for minorities to play a
meaningful role in the electoral process"); and the controlling
opinions of the Supreme Court. See Gingles,
478 U.S. at 100
(O'Connor, J., concurring) (distinguishing communities where polarized voting is attributable to "racial hostility" and those in which "racial animosity is absent although the interests of racial groups diverge"). There is also a powerful argument supporting a rule that plaintiffs to establish legally significant racial bloc voting must prove that their failure to elect representatives of their choice cannot be characterized as a "mere euphemism for political defeat at the polls," Whitcomb,403 U.S. at 153
, or the "result" of "partisan politics." Bolden,446 U.S. at 100
(Marshall,
J., dissenting).
Describing plaintiffs' burden in terms of negating "partisan
politics" rather than affirmatively proving "racial animus" would
not be simply a matter of nomenclature. As Judge Wood emphasizes,
there are many other possible non-racial causes of voter behavior
beyond partisan affiliation. A rule conditioning relief under § 2
upon proof of the existence of racial animus in the electorate
would require plaintiffs to establish the absence of not only
partisan voting, but also all other potentially innocent
explanations for white voters' rejection of minority-preferred
candidates. Factors that might legitimately lead white voters to
withhold support from particular minority candidates include, for
59
example, limited campaign funds, inexperience, or a reputation
besmirched by scandal. Because these additional factors map only
imperfectly onto partisan affiliation, detailed multivariate
analysis might then be the evidence of choice. The argument would
then be that without this additional inquiry, courts that confine
their scrutiny to partisan voting might well find racial bloc
voting in circumstances where the losses of minority-preferred
candidates were actually attributable to causes other than race.
This result it is urged, might unfairly tip the scales in favor of
liability.
This argument possesses considerable force. Certainly, the
allocation of proof in § 2 cases must reflect the central purpose
of the Voting Rights Act and its intended liberality as well as the
practical difficulties of proof in the real world of trial. In
countless areas of the law weighty legal conclusions frequently
rest on methodologies that would make scientists blush. The use of
such blunt instruments in examining complex phenomena and
corresponding reliance on inference owes not so much to a lack of
technical sophistication among judges, although this is often true,
but to an awareness that greater certitude frequently may be
purchased only at the expense of other values. Here, we are told
that we cannot ignore the significant and, assertedly, unacceptable
substantive consequences that would accompany a more nuanced bloc
voting inquiry. Requiring plaintiffs affirmatively to establish
that white voters' rejection of minority-preferred candidates was
motivated by racial animus would make racial bloc voting both
60
difficult and, considering the additional analysis that would be
needed, expensive to establish. See, e.g., McCrary, Discriminatory
Intent: The Continuing Relevance of "Purpose" Evidence in Vote-
Dilution Lawsuits, 28 How. L. J. 463, 492 (1985). Moreover, it
would facilitate the use of thinly-veiled proxies by permitting,
for example, evidence that a minority candidate was regarded as
"unqualified" or "corrupt" to defeat a claim that white voters'
refusal to support him was based on race or ethnicity. The
argument continues that an inquiry into causation beyond partisan
affiliation seems inconsistent with the fundamental division
between "partisan politics" and "racial vote dilution" set out by
the Court in Whitcomb and White and confirmed by Congress. Legal
standards of necessity reflect a balance of competing
considerations. Finally, the argument continues that limiting the
racial bloc voting inquiry to a determination whether or not
divergent voting patterns are attributable to partisan differences
or an underlying divergence in interests best captures the mandate
of § 2.27 Having said this, we need not resolve the debate today.
Whether or not the burden of the plaintiffs to prove bloc voting
includes the burden to explain partisan influence, the result is
the same. This is so even if the partisan voting is viewed as a
defensive parry.
27
The facts of this case do not require us to determine
whether defendants may attempt to prove that losses by minority-
preferred candidates are attributable to non-racial causes other
than partisan affiliation. We express no opinion on this
entirely separate question.
61
Finally, we recognize that even partisan affiliation may serve
as proxy for illegitimate racial considerations. Minority voters,
at least those residing in the contested counties in this case,
have tended uniformly to support the Democratic Party. At the same
time, a majority of white voters in most counties have consistently
voted for district court candidates fielded by the Republican
Party. Noting this persistent, albeit imperfect correlation
between party and race, plaintiffs assert that a determination that
partisan affiliation best explains voting patterns should not
foreclose § 2 liability in this case because the Republican and
Democratic Parties are proxies for racial and ethnic groups in
Texas. Whitcomb's distinction between "racial vote dilution" and
"political defeat at the polls" should not control, they contend,
for "partisan politics" is "racial politics."
We fully agree with the plaintiffs that the bloc voting
inquiry, like the "question whether the political processes are
'equally open,'" must rest "upon a searching practical evaluation
of the 'past and present reality.'" S.Rep. 417 at 30 (quoting
White,
412 U.S. at 769-770
), reprinted in 1982 U.S. Code Cong. &
Admin. News at 208. Indeed, the refusal of Congress and the
Supreme Court to equate losses at the polls with actionable vote
dilution where these unfavorable results owe more to party than
race may be traced directly to this "functional" view of political
life. Plaintiffs are therefore entirely correct in maintaining
that courts should not summarily dismiss vote dilution claims in
62
cases where racially divergent voting patterns correspond with
partisan affiliation as "political defeats" not cognizable under
§ 2.
We do not agree, however, that a "functional" and "practical"
review of Texas judicial elections exposes political parties as
proxies for race or ethnicity. In assessing the record before us,
we do not indulge in the hopeful yet unrealistic assumption that
decisions to support particular political parties among black and
white voters in all cases rest on issues other than race. We
instead focus on the same two factors cited by the Court in
Whitcomb and the concurring Justices in Gingles. First, white
voters constitute the majority of not only the Republican Party,
but also the Democratic Party, even in several of the counties in
which the former dominates. In Dallas County, for example, 30-40%
of white voters consistently support Democrats, making white
Democrats more numerous than all of the minority Democratic voters
combined. The suggestion that Republican voters are galvanized by
a "white" or "anti-minority" agenda is plausible only to the extent
that the Democratic Party can be viewed as a vehicle for advancing
distinctively minority interests, which clearly is not the case.
At the same time, white Democrats have in recent years experienced
the same electoral defeats as minority voters. If we are to hold
that these losses at the polls, without more, give rise to a racial
vote dilution claim warranting special relief for minority voters,
a principle by which we might justify withholding similar relief
63
from white Democrats is not readily apparent. See Whitcomb,
403 U.S. at 153
.
Second, both political parties, and especially the
Republicans, aggressively recruited minority lawyers to run on
their party's ticket. Consequently, white as well as minority
voters found themselves not infrequently voting against candidates
sharing their respective racial or ethnic backgrounds in favor of
their party's nominee. In particular, the undisputed evidence
discloses that white voters in most counties, both Republican and
Democratic, without fail supported the minority candidates slated
by their parties at levels equal to or greater than those enjoyed
by white candidates, even where the minority candidate was opposed
by a white candidate. In Dallas County, for example, Judge Wright,
a black woman, received the greatest recorded percentage of the
white vote (77%) in her race against a white Democrat. To conclude
on this record that political parties serve as proxies for race is
simply unwarranted. Because the evidence in most instances
unmistakably shows that divergent voting patterns among white and
minority voters are best explained by partisan affiliation, we
conclude that plaintiffs have failed to establish racial bloc
voting in most, but not all, of the counties.28
E. Two Objections
The Houston Lawyers' Association and amicus the United States
raise two particular objections that merit additional
28
Defendant Judge Entz has contended throughout this
litigation that § 2, as amended, is unconstitutional. In view of
our construction of the statute, we need not reach this question.
64
consideration. These arguments closely track those made by Justice
Brennan--arguments rejected by five members of the Supreme Court in
Gingles. Nevertheless, the urgency with which they are pressed
here warrants a further explanation of the reasons underlying the
views expressed by Justice White and Justice O'Connor in their
separate opinions.
The Association contends that a requirement that plaintiffs
prove that their failure to elect representatives of their choice
is attributable to white bloc voting rooted in racial
considerations is presumptively inconsistent with § 2's focus on
"results." The Association reads this test to impose on plaintiffs
the burden of affirmatively establishing that white voters are
motivated by racial animus in selecting candidates. So
characterized, the racial bloc voting standard we apply today
allegedly contravenes the fundamental purpose of the 1982
amendments by reintroducing the "intent" test announced in Mobile
v. Bolden,
446 U.S. 55
(1980). See also Richard L. Engstrom, The
Reincarnation of the Intent Standard: Federal Judges and At-Large
Election Cases, 28 How. L. J. 495, 498 (1985). That is not so.
The Association does not seriously contend that the
legislative history accompanying the amendments to § 2 lends direct
support for its position. The Senate Report quite unambiguously
declares that Congress intended to "make clear that plaintiffs need
not prove a discriminatory purpose in the adoption or maintenance
of the challenged practice or system in order to establish a
violation." S. Rep. 417 at 27 (emphasis added), reprinted in 1982
65
U.S. Code Cong. & Admin News at 205. Moreover, far from suggesting
that the presence of racial animus in the electorate was
irrelevant, supporters of the 1982 legislation maintained that the
amendments were necessary precisely in order to reach such "private
discrimination." See, e.g., Hearings on the Voting Rights Act
Before the Subcomm. on the Constitution of the Senate Comm. of the
Judiciary, 97th Cong., 2d Sess. 1367-68 (statement of Prof. Drew
Days). The Association instead insists that a standard requiring
§ 2 plaintiffs to show that their failure to elect representatives
of their choice is attributable to white bloc voting rooted in
racial considerations "frustrate[s] the goals Congress sought to
achieve by repudiating the intent test of [Bolden]." Gingles,
478 U.S. at 71
(opinion of Brennan, J.). Given the palpable tension
between "the goals Congress sought to achieve" and those it
actually expressed, it is hardly surprising that the principles the
Association purports to locate in the Senate Report bear only a
passing resemblance to those offered by Congress. Compare Gingles,
478 U.S. at 70-73 (opinion of Brennan, J.) with S. Rep. 417 at 36-
37, reprinted in 1982 U.S. Code Cong. & Admin News at 214-15.
More importantly, the Association's contention that an inquiry
into the explanations underlying racially divergent voting patterns
somehow conflicts with Congress' abandonment of the intent
requirement announced in Bolden completely ignores the fact that
the Senate Report expressly adopted the standard we employ in
codifying the "results" test. Indeed, like Justice Marshall in
Bolden itself, see 446 U.S. at 109 (Marshall, J., dissenting), the
66
Senate Report reiterated Whitcomb's holding that "[t]he failure of
the ghetto to have legislative seats in proportion to its
population emerges more as a function of losing elections than of
built-in bias against poor Negroes" precisely in order to show that
"intent had [not] been required to prove a violation." S. Rep. 417
at 21 (quoting Whitcomb,
403 U.S. at 153
), reprinted in 1982 U.S. Code Cong. & Admin News at 198. In keeping with Whitcomb, the Senate Report equated "racial bloc voting" with proof that "race is the predominant determinant of political preference." Id. at 33, reprinted in 1982 U.S. Code Cong. & Admin News at 211. The Association's assertion that the test we confirm today is inconsistent with "the goals Congress sought to achieve" in amending § 2 becomes plausible only if Whitcomb is purged from our voting rights jurisprudence. It is therefore not coincidental that its brief, like Justice Brennan's opinion, see Gingles,478 U.S. at 61-74
, fails to include a citation, let alone a discussion, of the
decision Congress intended to codify.
The United States offers a second argument incorporating
elements of Justice O'Connor's as well as Justice Brennan's opinion
in Gingles. The government agrees with Justice O'Connor that an
inquiry into the causes underlying polarized voting is appropriate
in certain circumstances. It follows Justice Brennan, however, in
maintaining that evidence tending to show that divergent voting
patterns are attributable to partisan affiliation or a divergence
in interests rather than race is irrelevant in assessing whether
67
plaintiffs have established legally significant white bloc voting.
We disagree with this argument as well.
The United States' assertion that partisan affiliation cannot
serve to explain voting patterns finds no support in Justice
O'Connor's opinion. The very inquiry it seeks to exclude--whether
election returns track "an underlying divergence in the interests
of minority and white voters,"--was the only non-racial cause
expressly cited in her opinion as a possible explanation of
divergent voting patterns. See Gingles,
478 U.S. at 100
(O'Connor,
J., concurring).
The United States argues that the political differences
frequently observed among white and minority voters are largely the
product of disparities in socioeconomic status, which are
themselves attributable to the presence or absence of past
discrimination. In this view, a standard that would permit
divergence in interest to preclude the establishment of racial bloc
voting "would render meaningless the Senate Report factor that
addresses the impact of low socioeconomic status on a minority
group's level of participation." Gingles,
478 U.S. at 69
.
This argument is not without force; it is, however, clearly
foreclosed by the Senate Report. Congress was not unaware that
political preference often correlates strongly with socioeconomic
status; particularized needs clearly give rise to particularized
interests. This observation did not, however, lead Congress to
soften the line between partisan politics and racial vote dilution
established by the Court in Whitcomb. To the contrary, the Senate
68
Report not only adopted Whitcomb's holding without modification,
but expressly reminded its readers in so doing that the vote
dilution claim dismissed by the Whitcomb Court as "a mere euphemism
for political defeat at the polls" had been brought by "black
ghetto residents with [distinct] legislative interests." S. Rep.
417 at 20, reprinted in 1982 U.S. Code Cong. & Admin News at 198.
The argument pressed here by the United States has been
acknowledged, and rejected, by Congress.
The Senate factor cited by Justice Brennan in support of his
refusal to attach relevance to a divergence of interests expressly
relates, not to whether minority groups have been able to elect
representatives of their choice, but to "the extent to which
members of the minority group . . . bear the effects of
discrimination in areas such as education, employment, and health,
which hinder their ability to participate in the political
process." S. Rep. 417 at 29 (emphasis added), reprinted in 1982
U.S. Code Cong. & Admin News at 206. As the Court in Chisom v.
Roemer confirmed, § 2 plaintiffs "must allege an abridgement of the
opportunity to participate in the political process and to elect
representatives of one's choice." 111 S.Ct. at 2365 (emphasis in
original). The effects of past discrimination, as the text of the
Senate Report indicates, pertain solely to the "political access"
prong of a § 2 claim. It is by considering these effects in this
regard, not in the bloc voting inquiry, that courts give effect to
congressional intent. The United States' approach, by contrast,
would allow this single factor to assume dispositive significance
69
in both of these inquiries. In so doing, it would permit liability
to attach, in direct conflict with the Senate Report, upon "the
mere existence of underrepresentation plus a history of dual
schools." S. Rep. 417 at 34, reprinted in 1982 U.S. Code Cong. &
Admin News at 212. Electoral losses that are attributable to
partisan politics do not implicate the protections of § 2.
70
IV. Other Legal Errors Affecting the Vote Dilution Inquiry
Defendants cite three additional legal errors that allegedly
infect the district court's findings of illegal vote dilution in
each of the counties. Specifically, they argue that the district
court erred in: (1) excluding elections pitting Hispanic
candidates against white candidates in counties in which the
evidence unmistakably showed that black and Hispanic voters were
cohesive; (2) refusing to consider the paucity of minority lawyers
in assessing the extent to which members of minority groups had
been elected to the district court; and (3) finding that the
effects of past discrimination hindered the ability of minority
groups to participate in the political process despite the presence
of little or no evidence suggesting that their participation was in
fact depressed. We examine these issues in turn.
A. Cohesiveness of Different Minority Groups
The importance of the distinction in § 2 jurisprudence between
illegal vote dilution and political defeat, between protecting
racial minorities and fostering the work of political coalitions,
raises the stakes for the question whether different racial or
ethnic minority groups, usually blacks and Hispanics, may combine
to form a single minority group within the meaning of the Voting
Rights Act. Judges and commentators alike have questioned whether
transitory unions rooted in political expedience may be properly
equated with those whose source lies in the more enduring bonds
supplied by a shared race or ethnicity. League of United Latin
American Citizens v. Midland Indep. School District,
812 F.2d 1494
,
71
1505-07 (5th Cir. 1987) (Higginbotham, J., dissenting); Katherine
I. Butler & Richard Murray, Minority Vote Dilution Suits and the
Problem of Two Minority Groups: Can a 'Rainbow Coalition' Claim the
Protection of the Voting Rights Act?, 21 Pacific L.J. 619, 641-57
(1990). Nevertheless, we have treated the issue as a question of
fact, allowing aggregation of different minority groups where the
evidence suggests that they are politically cohesive, see, e.g.,
Midland I.S.D., 812 F.2d at 1500-02, and we need not revisit this
question here.
This issue is raised today in the context of the particular
elections to which the district court looked as part of its inquiry
into racial bloc voting. This court has consistently held that
elections between white candidates are generally less probative in
examining the success of minority-preferred candidates, generally
on grounds that such elections do not provide minority voters with
the choice of a minority candidate. See, e.g., Campos v. City of
Baytown,
840 F.2d 1240, 1245
(5th Cir. 1988); Citizens for a Better Gretna v. City of Gretna,834 F.2d 496, 503
(5th Cir. 1987). For this reason, courts usually focus on those elections involving black or Hispanic candidates in examining whether black or Hispanic voters enjoy an equal opportunity to elect representatives of their choice. Where blacks and Hispanics are cohesive, we have held that the relevant elections are those including either Hispanic or black candidates. See, e.g., Baytown,840 F.2d at 1245
. Defendants
contend that the district court erred in refusing to consider
elections pitting Hispanic and white candidates in Harris and
72
Tarrant Counties, counties in which plaintiffs proceed on behalf of
black voters only, but where the evidence indisputably showed that
blacks and Hispanics were politically cohesive. In light of our
precedents, we must agree.
Blacks and Hispanics have joined forces for purposes of this
suit in Midland, Lubbock, and Ector Counties. In these counties,
white-Hispanic elections are relevant in proving legally
significant white bloc voting, for the Hispanic candidate provides
the combined Hispanic-black minority with a viable minority choice.
But plaintiffs contend that where they represent only black voters,
white-Hispanic elections in which the Hispanic candidate received
the support of black voters are irrelevant. A difference in
litigation strategy cannot support this distinction. Cohesion is
a fact, not a strategic card to be played at the caprice of a
plaintiff. As we stated in Campos, "if the statistical evidence is
that Blacks and Hispanics together vote for the Black or Hispanic
candidate, then cohesion is shown."
Id. at 1245
(footnote
omitted). If blacks and Hispanics vote cohesively, they are
legally a single minority group, and elections with a candidate
from this single minority group are elections with a viable
minority candidate.
Plaintiffs next argue that there is evidence in the record
that blacks and Hispanics are not politically cohesive in Harris
and Tarrant Counties. They do not tell us to which evidence they
refer, and understandably so. The record shows that blacks and
Hispanics were more cohesive in Harris and Tarrant Counties than in
73
Midland and Ector Counties, counties in which plaintiffs represent
both blacks and Hispanics and the district court found cohesion.
In Harris County, Taebel studied 45 elections in which he
determined the percentage of black and Hispanic votes cast for the
minority/winning candidate. In 35 elections the black and Hispanic
vote percentages varied by less than 10%. Similarly, the levels of
black and Hispanic support for the same candidate were within ten
percentage points in 13 of the 17 elections studied in Tarrant
County. In Midland County, by contrast, the black and Hispanic
voting percentages differed by less than 10% in only 4 of the 8
elections analyzed; in Ector County, this close correlation between
the preferences of Hispanic and black voters was shown in just 2 of
10 elections. Under the present law of this circuit, there is no
error in the district court's findings of cohesion in Midland,
Ector, and Lubbock Counties, because in those counties a
significant number of blacks and Hispanics usually voted for the
same candidates. Gingles,
478 U.S. at 56
. But this standard also
compels the conclusion that there is also black-Hispanic cohesion
in Harris and Tarrant Counties. The district court thus clearly
erred in ignoring elections involving Hispanic and white candidates
in these counties.29
29
The dissent points out that defendants did not ask the
trial court to make a specific finding that black and Hispanic
voters were politically cohesive in Harris and Tarrant Counties.
This observation, while correct, is beside the point, for that is
not the claim they raise on appeal. Rather, defendants argue
that the district court improperly refused to consider elections
involving Hispanic candidates studied by Dr. Taebel, their
expert. This question is most assuredly before us and, given the
overwhelming evidence of cohesiveness among black and Hispanic
74
B. Relevance of Small Number of Minority Lawyers
The absence of minority office holders is typically an
important consideration in dilution cases. In this litigation, the
small number of minority judges in the target counties has been the
cornerstone of the plaintiffs' proof.
The office of district judge has more eligibility requirements
than the age and citizenship prerequisites of many public offices.
A person must be a licensed attorney in the state of Texas for four
years, and a resident of the district for two years, before
becoming eligible for the post. The need for district judges to be
experienced lawyers is obvious.
Undisputed evidence shows that in all of the counties, the
percentage of minority lawyers was much smaller than the percentage
of minority voters. In fact, minority lawyers disproportionately
serve as judges, when their percentage among all eligible lawyers
is considered. It is true that we have refused "to preclude vote
dilution claims where few or no [minority] candidates have sought
offices in the challenged electoral system." Westwego Citizens for
Better Gov't v. City of Westwego,
872 F.2d 1201
, 1208 n.9 (5th Cir.
1989) (Westwego I). That holding is a far cry from the conclusion
that the number of minority candidates eligible to run has no
relevance. Section 2 and the Senate Report instruct us to consider
the number of minority candidates elected to office. At the same
time, we are instructed to evaluate the totality of the
voters in Harris and Tarrant Counties, is susceptible to only one
answer.
75
circumstances with a "'functional' view of the political process."
Gingles,
478 U.S. at 45
,106 S. Ct. at 2764
. The cold reality is that few minority citizens can run for and be elected to judicial office. A functional analysis of the electoral system must recognize the impact of limited pools of eligible candidates on the number of minority judges that has resulted. See Southern Christian Leadership Conf. of Ala. v. Evans,785 F. Supp. 1469, 1476-77
(M.D. Ala. 1992).
The record discloses that at times during the 1980's, the
percentage of minority judges in five targeted counties exceeded
the percentage of minority lawyers who were eligible to run for
district judge. The following table summarizes the evidence.
Table IV.B
County Minority Judges as Minority Lawyers as Minority Voters
%age of District %age of Eligible as %age of Voting
Judges, 1988 Lawyers, 1989 Age Population
Dallas 8.3 1.0 16.0 (black)
Harris 5.1 3.8 18.2 (black)
Tarrant 13.0 2.4 10.4 (black)
Bexar 26.3 11.4 41.4 (Hispanic)
Travis 7.7 2.7 14.4 (Hispanic)
Jefferson 0.0 3.1 24.6 (black)
Lubbock 0.0 5.1 21.6 (both)
Midland 0.0 3.2 19.7 (both)
Ector 0.0 4.0 21.9 (both)
In counties with no minority judges, the number of eligible
candidates was very small. In Ector County, for example, one
survey found five eligible Hispanic lawyers and only one eligible
black lawyer. Apparently none of Lubbock County's 499 lawyers in
76
1989 was a black attorney eligible for a district judgeship,
although the State Bar reported two black lawyers in the county.
The absence of eligible candidates goes a long way in
explaining the absence of minority judges. Plaintiffs cannot
emphasize the scarcity of successful minority candidates to support
the inference of dilution and simultaneously urge that the number
of minorities eligible to run is not relevant. Plaintiffs argue
that this factor may not be considered because the limited number
of minority lawyers was caused by state discrimination in
education. We are not persuaded this argument merits exclusion of
the evidence. The Voting Rights Act responds to practices that
impact voting; it is not a panacea addressing social deficiencies.
See Presley v. Etowah County Comm'n, U.S. , ,
112 S. Ct. 820, 832
(1992).
C. Past Discrimination
The district court also found that Texas' history of
discrimination "touched many aspects of the lives of minorities in
the Counties in question including their access to and
participation in the democratic system governing this State and
their socio-economic status."30 The district court, however, did
30
Two separate Zimmer factors guided the court's inquiry:
1. the extent of any history of official discrimination
in the state or political subdivision that touched the
right of the members of the minority group to register,
to vote, or otherwise to participate in the democratic
process;
. . . . . . . . . .
5. the extent to which members of the minority group in
77
not refer to specific facts in the record to support this
conclusion. Instead, the court cited a 1980 Civil Rights
Commission Report describing civil rights developments in Texas
during the years 1968-1978 and a 1981 district court opinion
detailing race relations between minority and white residents of
one of Texas' smaller cities during the 1960's and 1970's.
Texas' long history of discrimination against its black and
Hispanic citizens in all areas of public life is not the subject of
dispute among the parties. Nor has anyone questioned plaintiffs'
assertion that disparities between white and minority residents in
several socioeconomic categories are the tragic legacies of the
State's discriminatory practices. Defendants do argue, however,
that these factors, by themselves, are insufficient to support the
district court's "finding" that minorities do not enjoy equal
access to the political process absent some indication that these
effects of past discrimination actually hamper the ability of
minorities to participate. We again agree.
It would seem tautological that a factor directing courts to
determine whether past discrimination hinders a minority group's
access to the political process would require a showing that the
group does not in fact participate to the same extent as other
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;
S. Rep. 417 at 28-29, reprinted in 1982 U.S. Code Cong. & Admin.
News at 206.
78
citizens. Nevertheless, prior to the amendments to § 2, this court
held that evidence of decreased participation among minorities was
unnecessary on grounds that "[i]nequality of access is an inference
which flows from the existence of economic and educational
inequalities." Kirksey v. Board of Supervisors,
554 F.2d 139, 145
(5th Cir. 1977) (en banc). This standard, however, was challenged by some of our later cases, see, e.g., McIntosh Cty. NAACP v. City of Darien,605 F.2d 753, 759
(5th Cir. 1979), and was decisively
rejected by Congress in 1982. As the Senate Report stated:
The courts have recognized that disproportionate
educational, employment, income level and living
conditions arising from past discrimination tend to
depress minority political participation. Where these
conditions are shown, and where the level of black
participation in politics is depressed, plaintiffs need
not prove any further causal nexus between their
disparate socio-economic status and the depressed level
of political participation.
S. Rep. 417 at 29 n.114 (emphasis added), reprinted in 1982 U.S.
Code Cong. & Admin. News at 207 n.114. As this statement
discloses, the Senate Report, while not insisting upon a causal
nexus between socioeconomic status and depressed participation,
clearly did not dispense with proof that participation in the
political process is in fact depressed among minority citizens. In
apparently holding that socioeconomic disparities and a history of
discrimination, without more, sufficed to establish these Zimmer
factors, the district court employed the wrong legal standard.
Nor do we believe that the record before us can support such
a finding under the proper test. Plaintiffs have offered no
evidence of reduced levels of black voter registration, lower
79
turnout among black voters, or any other factor tending to show
that past discrimination has affected their ability to participate
in the political process. While there are indications that Hispanic
citizens register to vote at a lower rate than white and black
citizens, this data provides support for such a finding in only
Bexar and Travis Counties, where plaintiffs proceed on behalf of
Hispanic voters only.
Plaintiffs contend that the district court could have relied
on the opinion offered by Dr. Brischetto, who, during his testimony
regarding Bexar County, stated:
Well, certainly having less of these socioeconomic
resources or characteristics to draw on, we find that
minority voters will participate less in the electoral
system. Education is an important resource. For
example, it enables people to feel like they are more a
part of and take part in the election system to a greater
extent. Lacking that they participate less. So it is
important, it has an effect certainly on their
participation when they are subordinate status in the
stratification system.
Brischetto's statement, as its tone suggests, was not so much a
finding as a prediction or hypothesis about what one might expect
to find among minorities who still bore the scars of past
discrimination. It is for this reason that he could claim that his
testimony regarding the participation of Hispanics in Bexar applied
with equal force to all of the other counties. In fact, the nature
and basis of his opinion became explicit as the testimony shifted
to these other locales. In Travis County, for example, he stated
only that "stratification . . . may very well also be an indication
of the fact that Hispanics are less likely to participate fully and
effectively in the electoral system in Travis County." In Lubbock,
80
Brischetto stated only that "I think [such stratification] is an
indication that minorities are less equipped with those resources
that they need to participate fully in the political system."
Finally, he testified in the context of Tarrant County that
socioeconomic differences "indicate[] that minorities may have a
diminished ability to participate fully in the electoral system
because of their lower status and stratification that exists in
that community."
Brischetto's testimony thus provides support for the common
sense proposition that depressed political participation typically
accompanies poverty and a lack of education; it certainly does not
amount to proof that minority voters in this case failed to
participate equally in the political processes. A district court's
findings under § 2 must rest on an "intensely local appraisal" of
the social and political climate of the cities and counties in
which such suits are brought, White,
412 U.S. at 769
, not the sort
of generalized armchair speculation supplied by Dr. Brischetto. We
need evidence, not musings.
Plaintiffs also contend that minority citizens' lack of
financial resources makes it very difficult for minority-preferred
candidates to secure funds sufficient to run creditable county-wide
campaigns. Here again, the inference plaintiffs ask us to draw
might well be true in most cases; regardless of its general
validity, however, it is no substitute for proof that a minority
group's poverty has had the predicted effect in this particular
case. The evidence presented at trial simply does not show that
81
past discrimination has inhibited the ability of minorities to
participate in the process. In fact, the record discloses that
minority-preferred candidates frequently raised and spent more
money that their white opponents.
Witnesses Coronado and Fitch did testify that minority
candidates generally were unable to raise the money necessary to
run county-wide. When asked about the only district court campaign
in which he was personally involved, however, Coronado made no
mention of money problems. In fact, he testified that "[Judge
Gallardo] ran a very good campaign. I mean he was, he understood
the media, had people out working boxes, he had a lot of attorneys
of all ethnic groups working in his campaign, a broad base campaign
in the community." Similarly, Fitch asserted that black incumbents
had difficulty raising funds, but she attributed this difficulty to
"racial discrimination" and black candidates' "past record of
losing."
In contrast with the highly equivocal testimony of Fitch and
Coronado concerning their impressions of the barriers facing
minority candidates, nearly all such candidates who appeared at
trial reported that they had outspent their white opponents, often
by a very large amount. In Midland County, for example, Watson
testified that she outspent her white opponent in the general
election for Justice of the Peace by a factor of six. In Dallas
County, Joan Winn White, Tinsley, H. Ron White, and Oliver all
testified that they had run extensive, well-financed campaigns. In
particular, Oliver stated that he spent $300,000 in a losing
82
effort. The same was true of minority-preferred candidates in
Harris County. Lee testified that she outspent her white opponent
at a rate approaching twelve to one; Berry stated that the ratio in
his campaign for district court was even greater. Finally, Leal
testified that he raised $85,000 to $90,000 to his opponent's
$1,000. A district court's findings may only rest on the evidence
presented at trial. The record before us does not remotely suggest
that the visible scars of discrimination have left minority-
preferred candidates and their supporters within minority
communities without the funds needed to launch broad-based, county-
wide campaigns. In fact, the available evidence shows just the
opposite. For this reason, we must conclude that plaintiffs have
not established that the effects of past discrimination have
hindered their ability to participate in the political process.
V. Texas' Linkage Interest
This case involves 172 judicial districts that coincide with
nine Texas counties. Given the State of Texas' county-based system
of venue, this venerable structure links the jurisdictional and
electoral bases of the district courts. In doing so, the structure
advances the state's substantial interest in judicial
effectiveness. Trial judges are elected by a broad range of local
citizens, rather than by a narrow constituency. This electoral
scheme balances accountability and judicial independence.
As explained in detail below, the state's interest in
maintaining the structure of this single-member judicial office
must be weighed in the totality of circumstances to determine
83
whether a § 2 violation exists. The weight of a substantial state
interest, determined as a matter of law, is balanced against
localized evidence of racial vote dilution. This substantial state
interest may be overcome only by evidence that sums to substantial
proof of racial dilution. Otherwise, the at-large election of
district court judges does not violate § 2.
A. The Structure of Texas District Courts
The district courts are the primary trial courts in Texas.
District judges were first elected in 1850, five years after
statehood, and every state constitution since 1861 has provided for
their election by county residents. All voters of the entire
county elect all the district judges of their county. The
political boundaries of each county are the boundaries of the
jurisdiction and election base in all of the challenged counties.31
Many counties in Texas have more than one district judge. Even so,
trials are presided over by district judges acting alone. The only
collegial decision-making by district judges in counties with more
than one district judge is in the handling of some administrative
matters. In some of the counties involved here, district courts
are designated to specialize in civil, criminal, or family law
cases.
The electoral bases of district judges are linked to the area
over which they exercise primary jurisdiction. This linkage has
been in place throughout the 143 year history of judicial elections
31
One exception is the 72nd District, which encompasses both
Lubbock and Crosby Counties.
84
in Texas. By making coterminous the electoral and jurisdictional
bases of trial courts, Texas advances the effectiveness of its
courts by balancing the virtues of accountability with the need for
independence. The state attempts to maintain the fact and
appearance of judicial fairness that are central to the judicial
task, in part, by insuring that judges remain accountable to the
range of people within their jurisdiction. A broad base diminishes
the semblance of bias and favoritism towards the parochial
interests of a narrow constituency. Appearances are critical,
because "the very perception of impropriety and unfairness
undermines the moral authority of the courts." John L. Hill, Jr.,
Taking Texas Judges Out of Politics: An Argument for Merit
Election,
40 Baylor L. Rev. 339
, 364 (1988). The fear of mixing ward politics and state trial courts of general jurisdiction is widely held. It is not surprising then that states that elect trial judges overwhelmingly share this structure and electoral scheme. See infra note 30. The systemic incentives of subdistricting are those of ward politics, and would "diminish the appearance if not fact of its judicial independence--a core element of a judicial office." LULAC II,914 F.2d at 650
(Higginbotham,
J., concurring).
B. The Role of Function Under § 2
In Houston Lawyers' Association v. Attorney General, U.S.
,
111 S.Ct. 2376
(1991), the Supreme Court agreed that the
interests behind the existing court structure must be considered.
[W]e believe that the State's interest in maintaining an
electoral system--in this case, Texas' interest in
85
maintaining the link between a district judge's
jurisdiction and the area of residency of his or her
voters--is a legitimate factor to be considered by courts
among the "totality of circumstances" in determining
whether a § 2 violation has occurred. A State's
justification for its electoral system is a proper factor
for the courts to assess in a racial vote dilution
inquiry . . . . Because the State's interest in
maintaining an at-large, district-wide electoral scheme
for single-member offices is merely one factor to be
considered in evaluating the "totality of circumstances,"
that interest does not automatically, and in every case,
outweigh proof of racial vote dilution.
Id. at , 111 S. Ct. at 2381.
Justice Stevens noted that Texas' interest in linking
electoral and jurisdictional bases is "a legitimate factor to be
considered by courts among the 'totality of circumstances' in
determining whether a § 2 violation has occurred." Id. The Court
was not persuaded that this "linkage" interest should defeat
liability "automatically, and in every case." Rather, Houston
Lawyers' held that the interest must be weighed against other
relevant factors to ascertain whether the interest "outweigh[s]
proof of racial vote dilution." Id. See also Nipper v. Chiles,
795 F. Supp. 1525, 1548
(M.D. Fla. 1992) (holding that "a state's
interest in maintaining an electoral system is a legitimate factor
to be considered ... in the liability phase of a section two
case").
An examination of Houston Lawyers' further illuminates why the
state interests behind an office's structure and function must be
weighed. The Court held that single-member office elections are
within the scope of § 2. Houston Lawyers', U.S. at , 111 S.
Ct. at 2380. This holding reached beyond judicial elections.
86
"[T]he coverage of the Act encompasses the election of executive
officers and trial judges whose responsibilities are exercised
independently in an area coextensive with the districts from which
they are elected." Id. (emphasis added). It appears from this
language that an office such as mayor or sheriff is subject to § 2
scrutiny, requiring an analysis of the totality of circumstances to
determine whether illegal vote dilution exists. While that
analysis is not precluded, it must take into account the state
interests that are furthered by the structure and function of such
single-member offices. Surely by enacting the Voting Rights Act,
Congress did not contemplate that the office of mayor in a city
would have to be dismantled because its single-member office nature
submerged minority voters in the community of voters as a whole,
without regard for the interests in preserving that office. Cf.
Butts v. City of New York,
779 F.2d 141
(2d Cir. 1985) (holding
that primary runoffs for single-member offices of mayor, city
council president, and city comptroller do not violate § 2).
Therefore, while the Supreme Court rejected the contention
that the linkage interest in all cases defeated liability under
§ 2, the Court endorsed the position that the linkage interest is
relevant to a determination of liability. Indeed, by noting that
the linkage interest does not "automatically, and in every case,
outweigh proof of racial vote dilution," the Court held that the
state interest could outweigh what would otherwise be proof of
illegal dilution and thus foreclose liability. As one commentator
has noted:
87
the Court recognized that in balancing the many factors
in the totality of the circumstances test, the state
interest in district wide judicial elections may, in some
cases, outweigh proof of racial voter dilution.
Mary T. Wickham, Note, Mapping the Morass: Application of Section
2 of the Voting Rights Act to Judicial Elections,
33 Wm. & Mary L. Rev. 1251
, 1285 (1992).
The issue we face is determining when the linkage interest
will outweigh other factors and defeat liability under § 2. In
resolving this issue, we reject the polar extremes of the parties.
The State of Texas maintains that the linkage interest must defeat
liability in every case, regardless of the other circumstances in
the totality. The Supreme Court rejected this position when it
held that the linkage interest does not "automatically, and in
every case, outweigh proof of racial vote dilution." Houston
Lawyers', U.S. at , 111 S. Ct. at 2381.
We also reject the position of plaintiffs that the linkage
interest can never defeat liability under the totality of
circumstances if "illegal" dilution is otherwise established. The
plaintiffs maintain that only the absence of a compelling state
interest in an electoral scheme is relevant to liability, and that
such an absence "is an optional factor" that plaintiffs can use to
support a finding of illegal dilution. They contend, however, that
the existence of a compelling interest can never defeat liability
that is otherwise established under the totality of the
circumstances. This position is foreclosed by the Supreme Court,
which directed that this state interest is to be weighed as part of
the totality of the circumstances. Id.
88
Citing Jones v. City of Lubbock,
727 F.2d 364, 383
(5th Cir. 1984), and United States v. Marengo County Comm'n,731 F.2d 1546, 1571
(11th Cir. 1984), plaintiffs urge that the Zimmer factor of a non-tenuous state policy is among the least important of the factors for determining dilution. These decisions state only that defendants cannot defeat liability by using the non-tenuous policy justification of an electoral scheme to prove that scheme "does not have a discriminatory intent." Marengo County,731 F.2d at 1571
. See also Terrazas v. Clements,581 F. Supp. 1319
, 1345 n.24 (N.D.
Tex. 1983) (three-judge panel) ("In the case of tenuousness, the
lesser weight is consistent with the change in emphasis from intent
to results. The principal probative weight of a tenuous state
policy is its propensity to show pretext.").
The plaintiffs' argument misses the point. The State of Texas
has done more than assert that its interest in this electoral
scheme is not tenuous--that is, not a pretext masking
discriminatory intent in the adoption or maintenance of the scheme.
The interest in linking electoral to jurisdictional base takes on
additional and distinct relevance because it advances objectively
substantive goals. The inquiry into whether an interest is
substantial goes beyond inquiring whether the interest is non-
tenuous. A substantial state interest must be more than racially-
neutral. Thus, the linkage interest is not examined just because
it proves that the state's practice is premised on a racially-
neutral policy and is consistently applied. Cf. S. Rep. 417 at 29
89
n.117, reprinted in 1982 U.S. Code Cong. & Admin. News at 207
n.117.
Proof of a merely non-tenuous state interest discounts one
Zimmer factor, but cannot defeat liability. It does not follow,
however, that proof of a substantial state interest cannot defeat
liability. The totality of circumstances inquiry that occurs after
a showing of the Gingles prerequisites is not limited to factors
listed in the legislative history of the Voting Rights Act.
Gingles, 478 U.S. at 45, 106 S. Ct. at 2763; Westwego Citizens for
Better Gov't v. City of Westwego,
946 F.2d 1109, 1120
(5th Cir. 1991) (Westwego III). The weight, as well as tenuousness, of the state's interest is a legitimate factor in analyzing the totality of circumstances. As we have explained, the Voting Rights Act largely codifies Fourteenth Amendment jurisprudence embodied in White v. Regester,412 U.S. 755
,93 S. Ct. 2332
,37 L. Ed. 2d 314
(1973). See Jones,727 F.2d at 379-80
. The substantiality of the
state's interest has long been the centerpiece of the inquiry into
the interpretation of the Civil War Amendments and their interplay
with the civil rights statutes.
Having rejected the proffered extremes--that the linkage
interest either always or never defeats § 2 liability--we turn to
when the linkage interest precludes a § 2 violation. This question
depends upon the weight of the interest.
C. Weight of State's Interest Is Matter of Law
The plaintiffs urge that the weight or substantiality of
Texas' linkage interest is an issue of fact for the district court
90
to decide in the first instance, reviewable only for clear error.
We disagree. Deciding whether the adoption or maintenance of a
system is a pretext for racial discrimination may present a
question of fact.32 This question can turn on credibility, an issue
best determined by a fact finder. The issue of substantiality,
however, is distinct from the conventional Zimmer factor of
tenuousness and is a legal determination.
The Supreme Court has held that the finding of dilution is a
factual matter reviewable only for clear error. Gingles,
478 U.S. at 78
,106 S. Ct. at 2780-81
. A substantial state interest is not
inherently preclusive of dilution and is not raised to disprove the
existence of dilution. Rather, the state's interest is weighed
against proven dilution to assess whether such dilution creates § 2
liability. Houston Lawyers', U.S. at , 111 S. Ct. at 2381
(weighing of linkage interest on remand goes to determination of
whether interests "outweigh proof of racial vote dilution").
Determining the substantiality of Texas' linkage interest
under the Voting Rights Act, a statute enacted to enforce the
guarantees of the Civil War Amendments, is analogous to weighing
the asserted state interest in constitutional law contexts. With
issues of substantive due process, equal protection, and the First
Amendment, the weight of a state's interest has always been a legal
question, not a factual one. For example, in Posadas de Puerto
32
We do not decide this issue. Some appellate court
decisions appear to have reviewed the tenuousness of state
interests without deference to the underlying district court
determinations. See, e.g., Zimmer,
485 F.2d at 1307
.
91
Rico Ass'n v. Tourism Co. of Puerto Rico,
478 U.S. 328, 341
,106 S. Ct. 2968, 2977
,92 L. Ed. 2d 266
(1986), the Court had "no difficulty in concluding that the Puerto Rico Legislature's interests in the health, safety, and welfare of its citizens constitutes a 'substantial' governmental interest." In reaching this conclusion, the Court itself determined the weight of the state interest. See also City of Cleburne v. Cleburne Living Center,473 U.S. 432
,105 S. Ct. 3249
(1985) (weighing state's
interest de novo). We hold that the substantiality of Texas'
interest under § 2 is a question of law for this court to determine
de novo and not a question of fact that somehow will be described
on a county-by-county basis.
D. Determining the Weight of the Linkage Interest
The weight of Texas' interest is virtually assigned by a
Supreme Court decision handed down on the same day as Houston
Lawyers'. In Gregory v. Ashcroft, U.S. ,
111 S. Ct. 2395, 2404
,115 L. Ed. 2d 410
(1991), the Supreme Court held that the Age Discrimination in Employment Act does not apply to judicial offices in Missouri. The plaintiffs had used ADEA to challenge a mandatory retirement age for state judges. The Court noted that "the authority of the people of the States to determine the qualifications of their most important government officials . . . lies at the heart of representative government."Id.
at , 111
S. Ct. at 2402 (internal quotation omitted). Gregory noted that
"the States' power to define the qualifications of their office-
holders has force even as against the proscriptions of the
92
Fourteenth Amendment." Id. at , 111 S. Ct. at 2405. To protect
this power to define the judicial office, Gregory required a clear
statement from Congress for an override of qualifications imposed
by the State for important state government office. Id. at ,
111 S. Ct. at 2406. This requirement exists even if ADEA was based
upon Congress' powers under the Fourteenth Amendment, rather than
the Commerce Clause. Id. at , 111 S. Ct. at 2405.
"The people of Missouri have a legitimate, indeed compelling,
interest in maintaining a judiciary fully capable of performing the
demanding tasks that judges must perform." Id. at , 111 S. Ct.
at 2407. If that interest is compelling, the people of Texas have
at least a substantial interest in defining the structure and
qualifications of their judiciary. Indeed, Texas' Attorney General
has submitted to this court that linkage is a "fundamental right"
that "serves [a] compelling interest" of the State of Texas.
Linking electoral and jurisdictional bases is a key component of
the effort to define the office of district judge. That Texas'
interest in the linkage of electoral and jurisdictional bases is
substantial cannot then be gainsaid.
Our confidence in this conclusion is bolstered by the
recognition and pursuit of the linkage interest in other states.
Courts have recognized the legitimacy and substance of similar
linkage interests in Florida and Alabama. See Nipper v. Chiles,
795 F. Supp. 1525, 1548
(M.D. Fla. 1992); Southern Christian Leadership Conf. of Ala. v. Evans,785 F. Supp. 1469, 1478
(M.D.
Ala. 1992). Of the twenty-nine states that elect their principal
93
trial court judges, including Texas, Alabama, and Florida, twenty-
five employ district-wide elections.33 The overwhelming
preservation of linkage in states that elect their trial court
judges demonstrates that district-wide elections are integral to
the judicial office and not simply another electoral alternative.
The decision to make jurisdiction and electoral bases
coterminous is more than a decision about how to elect state
judges. It is a decision of what constitutes a state court judge.
Such a decision is as much a decision about the structure of the
judicial office as the office's explicit qualifications such as bar
membership or the age of judges. The collective voice of
generations by their unswerving adherence to the principle of
linkage through times of extraordinary growth and change speaks to
us with power. Tradition, of course, does not make right of wrong,
but we must be cautious when asked to embrace a new revelation that
right has so long been wrong. There is no evidence that linkage
33
The twenty-five are Alabama, Arizona, California, Florida,
Georgia, Idaho, Indiana, Kentucky, Michigan, Minnesota, Montana,
Nevada, New Mexico, New York, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Washington,
West Virginia, and Wisconsin. Among these states, some appoint a
portion of their trial judges, while others hold retention
elections after initial selection by contested election. See
generally 28 The Council of State Governments, The Book of the
States 210-12 (1990) (table 4.4).
Mississippi and Louisiana only recently abandoned the link
between jurisdiction and electoral base in order to settle
prolonged litigation.
North Carolina allows every elector within a district
court's jurisdiction to vote for its judge by holding statewide
elections after district-wide primaries. See Republican Party of
N. C. v. Martin,
980 F.2d 943, 947
(4th Cir. 1992) (holding that
Fourteenth Amendment challenge to system by Republican Party is
justiciable).
94
was created and consistently maintained to stifle minority votes.
Tradition speaks to us about its defining role--imparting its deep
running sense that this is what judging is about.
On the other hand, plaintiffs' interests are not well-served
by destroying linkage. The inescapable truth is that the result
sought by plaintiffs here would diminish minority influence.
Minority voters would be marginalized, having virtually no impact
on most district court elections. Given that district judges act
alone in exercising their power, that use of the Voting Rights Act
is perverse. After subdistricting, a handful of judges would be
elected from subdistricts with a majority of minority voters.
Creating "safe" districts would leave all but a few subdistricts
stripped of nearly all minority members. The great majority of
judges would be elected entirely by white voters. Minority
litigants would not necessarily have their cases assigned to one of
the few judges elected by minority voters. Rather, the
overwhelming probability would be that the minority litigant would
appear "before a judge who has little direct political interest in
being responsive to minority concerns." LULAC II,
914 F.2d at 650
(Higginbotham, J., concurring). Under the totality of
circumstances, we must recognize that breaking the link between the
electoral base and the jurisdiction of this single-member office
would perversely lessen minority influence on the conduct of most
litigation.
The distrust of judicial subdistricts does not rest on
paternalism. It recognizes Texas' historic interest in having
95
district judges remain accountable to all voters in their district.
Regardless of the race or residency of particular litigants, judges
make choices that affect all county residents. Texas has insisted
that trial judges answer to all county voters at the ballot box.
Unlike legislators or even appellate judges, who make decisions in
groups, each district judge holds a single-member office and acts
alone. When collegial bodies are involved, all citizens continue
to elect at least one person involved in making a particular
decision. While subdistricting for multimember offices can enhance
minority influence because members from minority subdistricts
participate in and influence all of the decisions of the larger
body, subdistricting for single-member district court judgeships
would leave minority voters with no electoral influence over the
majority of judges in each county. Subdistricting would partially
disenfranchise citizens to whom all district judges in a county are
now accountable.
By contrast, under the present regime, minority voters
participate in all judicial elections in each county. This
participation gives minority voters the opportunity to influence
all elections, absent significant racial vote dilution. As Justice
O'Connor noted in her concurring opinion in Gingles, voters can
wield influence over elections even when those votes are cast for
losing candidates. Gingles,
478 U.S. at 98-99
,106 S. Ct. at 2791
(O'Connor, J., concurring). Denying importance to this ability to
influence asks that all measures of success be found in the win-
loss column. This mandates proportional representation as the
96
measure of dilution, contrary to the explicit terms of § 2.
Indisputably, subdistricting would assure the absence of minority
influence over the judicial process. See LULAC II,
914 F.2d at 649-50
(Higginbotham, J., concurring); Southern Christian Leadership Conf. of Ala. v. Evans,785 F. Supp. 1469, 1478
(M.D.
Ala. 1992) (Hobbs, J.) (by subdistricting judicial positions,
"black voters ... will ... be sacrificing [an] extremely valuable
political right--the right to vote for all of the judges who will
be serving as judges in the circuit wherein they live").
Plaintiffs contend that linking jurisdictional and electoral
bases does not, in fact, protect these uniquely judicial interests.
All of the plaintiffs' arguments reduce to the single contention
that Texas does not consistently apply the policy of linking
jurisdictional and electoral bases.
Before addressing these arguments, we note that in assessing
the relationship between the end pursued and the means employed,
"our scrutiny will not be so demanding where we deal with matters
resting firmly within a State's constitutional prerogatives."
Sugarman v. Dougall,
413 U.S. 634, 648
,93 S. Ct. 2842, 2850
,37 L. Ed. 2d 853
(1973). As both Sugarman and Gregory make clear, such matters include "the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders." Sugarman,413 U.S. at 648
,93 S. Ct. at 2851
. Examining Texas' linking of electoral and
jurisdictional bases in light of these considerations, we find that
it serves the substantial interests we described.
97
The plaintiffs contend that Texas district judges often
adjudicate controversies involving litigants who are not residents
of the county. Defendants make several responses. First, they
maintain that because a district judge's area of primary
jurisdiction is defined by county-specific venue rules, most
residents of a county will have their disputes adjudicated by
judges they elect. Second, the residency of particular litigants
is not that important. Regardless of the identity of litigants in
a case, a district judge may make decisions or grant relief that
impact primarily upon the residents of the district.
By drawing attention to venue, plaintiffs only remind us of
concerns unique to the district judge's office. Venue rules
preserve judicial fairness by preventing forum-shopping and
diminishing the chances of biased adjudication. At the same time,
the rules keep most local matters in local courts, where local
juries are drawn and judges are accountable to voters for the legal
and policy choices they make.34 The localized focus of district
courts is particularly evident in criminal matters, where venue is
based on events related to the offense. Tex. Code Crim. Proc. Ann.
ch. 13 (Vernon 1977). Domicile and hence convenience to the
34
Texas venue law, as amended in 1983, has been influenced
by both Spanish and English principles. Besides protecting civil
defendants from inconvenient forums, the rules strive to ensure
that local matters are tried in local courts. See generally
Joseph W. McKnight, The Spanish Influence on the Texas Law of
Civil Procedure, 38 Texas L. Rev. 24, 36-40 (1959); Charles T.
Frazier, Jr., Note, Venue Procedure in Texas: An Analysis of the
1983 Amendments to the Rules of Civil Procedure Governing Venue
Practice Under the New Venue Statute,
36 Baylor L. Rev. 241
, 241-
44 (1984).
98
defendant have never been a consideration. Since the propriety of
venue goes to the authority of the court, it is "quasi-
jurisdictional in nature." George E. Dix, Texas Charging
Instrument Law: The 1985 Revisions and the Continuing Need for
Reform,
38 Baylor L. Rev. 1
, 71 (1986). Thus, Texas law commonly refers to the district court's venue reach as its jurisdiction in criminal matters. See, e.g., Hodge v. State,527 S.W.2d 289, 292
(Tex. Crim. App. 1975); Tex. Code Crim. Proc. Ann. Arts. 21.02(5),
21.21(5) (Vernon 1989).
Similarly, family law matters will almost always be handled by
the local district court. See, e.g.,
Tex. Fam. Code Ann. §§ 3.21
, 11.04 (Vernon 1986) (concerning venue in divorce and parent-child relationship suits). Quintessentially local matters such as suits against counties or disputes involving title to real property must be tried in the district court of the same county. Tex. Civ. Prac. & Rem. Code §§ 15.001, 15.015 (Vernon 1986). Whatever the area of practice--whether civil, criminal, or family law--the conclusion reached in the concurring opinion in LULAC II remains valid. "[T]he state recognized that elimination of [the] risk and appearance of bias was essential to the office it was creating by an elaborate set of rules controlling venue."914 F.2d at 651
(Higginbotham, J., concurring). The argument that Texas' venue
rules somehow abrogate its interest in linking jurisdiction and
electoral bases is illusory.
Plaintiffs also challenge the legitimacy of the state interest
in linkage by pointing to the use of visiting judges in the
99
district courts. Judges not elected by a district's residents--
e.g., judges from another district or retired judges--may be
temporarily assigned to a district court, when necessary to dispose
of its accumulated business, by the Chief Justice or regional
presiding judge.
Tex. Gov't Code Ann. § 74.052
(Vernon 1988).35
A typical occasion for such assignments is when the district judge
is vacationing or ill. Plaintiffs have not demonstrated that this
measure of expedience represents an abandonment of the interests
behind linkage. To the contrary, insofar as linkage involves the
appearance of judicial fairness and independence, visiting judges
are not inconsistent with its purposes. Because visiting judges
will not stand for reelection, they do not create the impression of
bias that may accompany a judge elected from a narrow constituency.
Another challenge to the legitimacy of the linkage interest is
based upon Article 5, § 7a of the Texas Constitution. Plaintiffs
reason that Texas abandoned its linkage interest by allowing the
residents of counties to "opt out" of the linkage structure by
selecting judges from regions smaller than a county. This
contention is without merit. As Chief Justice Phillips explained
at trial, § 7a was enacted in 1985 as part of a constitutional and
statutory scheme designed to equalize court dockets by allowing the
realignment of judicial districts. The provision states that a
district smaller than a county may not be created unless approved
by a majority of county voters. Tex. Const. Art. 5, § 7a(i). The
35
A visiting judge may not, however, hear a civil case over
the objection of a party.
Tex. Gov't Code Ann. § 74.053
(Vernon
Supp. 1993).
100
people of Texas have jealously reserved to themselves, as
individual voters, the power to subdivide districts that have
always been the size of a county, or larger. Nowhere in Texas' 254
counties have residents voted to break the link between
jurisdiction and electoral base. If anything, § 7a(i)'s
unemployment testifies to affirmation, not abrogation, of the
interest in linkage.
Moreover, even if one county were to subdivide, the interest
in linkage would not be lost in the state as a whole. In Mahan v.
Howell,
410 U.S. 315
,93 S. Ct. 979
,35 L. Ed. 2d 320
, modified411 U.S. 922
,93 S. Ct. 1475
,36 L. Ed. 2d 316
(1973), the Supreme Court recognized that although Virginia divided one county when reapportioning its state legislature, it retained its interest in preserving boundaries of all other political subdivisions.Id. at 327
, 93 S. Ct. at 986. Texas' interest in preserving the structure
of its judiciary by linking jurisdictional and electoral boundaries
is greater than a state's interest in observing boundaries in
legislative reapportionment, because it serves substantive purposes
other than convenience.
Finally, plaintiffs note that some rural district judges, and
urban justices of the peace, are elected by a small number of
voters. Therefore, plaintiffs contend, judges elected by narrow
constituencies are not antithetical to the state's interest in
judicial independence. The structure of the justice courts have no
bearing on Texas' interests in maintaining its system of district
courts. Justices of the peace need not be lawyers, and preside
101
over courts whose subject matter jurisdiction is limited to less
significant disputes. For instance, the justice court's criminal
jurisdiction is limited to finable misdemeanors. Significantly,
the justice of the peace "is powerless to issue injunctions."
Bowles v. Angelo,
188 S.W.2d 691, 693
(Tex. Civ. App.--Galveston
1945, no writ). The justice court is not a court of record, so
when its rulings are appealed, the cases are tried de novo before
a county court judge--a judge chosen by district-wide election.
In great contrast, district courts are Texas' trial courts of
general jurisdiction, charged with trying felony cases and civil
matters of unlimited amounts in controversy. As to rural Texas,
linkage is preserved, while providing as broad a range of
constituents as the countervailing problems of courthouse proximity
allow.
E. Other Means to Accommodate the Linkage Interest
Plaintiffs urge that the linkage interest can be accommodated
even if the existing scheme were found to be illegal. They offer
two alternatives: either a complete overhaul of the existing venue
scheme or the use of unconventional electoral methods that preserve
at-large voting. The plaintiffs suggest that a scheme of single-
member districts may preserve linkage, by making each district
judge's area of primary jurisdiction co-extensive with the single-
member district from which the judge is elected. Plaintiffs
provide no evidence that such a radical reworking of the venue of
Texas courts would be administratively feasible. The district
court likewise simply asserted that such an arrangement of venue
102
limited to a single-member district could accommodate Texas'
interests, without a glance at the feasibility of such an
arrangement. One look at Harris County cut into a grid of dozens
of venue blocks is enough to show the bizarre nature of this
proposal.
We cannot conclude that Texas' interests could be adequately
accommodated by such a radical reworking of Texas' venue rules.
The proposal illustrates how different the judicial offices' at-
large election scheme is from legislative and executive at-large
elections. Plaintiffs must propose not only changing the means by
which Texas' district judges are selected, but also its system of
venue, perhaps of case assignment procedures, and maybe even its
jury selection methods. The necessity for such proposals is a
powerful testament to the reality that linkage is an essential part
of the structure of the judicial office, much more than the method
of electing the office holder.
The plaintiffs also contend that the linkage interest deserves
little weight because it might be accommodated by remedies other
than subdistricting. In particular, plaintiffs point to the use of
limited voting or cumulative voting. The Supreme Court, of course,
"strongly prefer[s] single-member districts for federal court-
ordered reapportionment." Growe v. Emison, U.S. , ,
113 S.Ct. 1075, 1084
(1993). In any event, we do not agree that this
argument undermines the substantiality of the state's interest.
The allegedly illegal facet of the existing electoral scheme
is that it employs at-large elections. Both plaintiffs' amended
103
complaint and plaintiff-intervenors' complaint-in-intervention
assert that the existing "at large scheme" violates § 2, and pray
for a court order "that district judges in the targeted counties be
elected in a system which contains single member districts." By
employing at-large elections, the people of Texas have linked the
electoral and jurisdictional base of the district judge.
Limited and cumulative voting are election mechanisms that
preserve at-large elections. Thus, they are not "remedies" for the
particular structural problem that the plaintiffs have chosen to
attack. At trial, plaintiffs attempted to prove the three Gingles
prerequisites. This test establishes "that the minority has the
potential to elect a representative of its own choice in some
single-member district" and "that the challenged districting
thwarts a distinctive minority by submerging it in a larger white
voting population." Growe, U.S. at , 113 S. Ct. at 1084.
Plaintiffs then tried to supplement that evidence with proof of
Zimmer factors, such as past discrimination and anti-single shot
voting rules. The question presented by this lawsuit is whether
Texas' at-large election of district judges violates § 2. To
answer that question, we must determine the weight of the state's
linkage interest. We will not discount that interest based upon
purported remedies that preserve the challenged at-large scheme.
Plaintiffs cannot attack at-large voting as a violation of § 2, and
then ignore the special characteristics of the judicial office by
insisting that they will embrace a remedy that preserves that
104
scheme. To do so would completely shunt consideration of the
interest to the remedy stage, contrary to Houston Lawyers'.
F. Balancing the State's Interest
In finding that Texas' interest is substantial, we recognize
that it will not always defeat § 2 liability. Substantiality is
not quantifiable, and we translate its force in the practical world
of trials to the burden required to overcome it. As we see it,
plaintiffs cannot overcome a substantial state interest by proving
insubstantial dilution. We hold that proof of dilution,
considering the totality of the circumstances, must be substantial
in order to overcome the state's interest in linkage established
here. As a matter of law, Texas' interest cannot be overridden by
evidence that sums to a marginal case. It will take more to create
a fact issue for trial. We must examine the circumstances in each
county accordingly.
We do not now attempt to define in detail what sort of proof
of dilution would be substantial enough to override the state's
linkage interest. We do not change the nature or usual means of
proof. The Gingles prerequisites and Zimmer factors remain. Two
facts are especially relevant to assessing the substantiality of
the plaintiffs' proof of dilution. One is the willingness of the
racial or ethnic majority--in this case, white voters--to give
their votes to minority candidates. The other critical fact is the
ability of minority voters to elect candidates of their choice even
when opposed by most voters from the majority. Among the Zimmer
factors, proof of racial appeals in elections, non-responsiveness
105
of elected officials to minority voters, and persistent lack of
electoral success by minority candidates are most important.
VI. Application of Law to Each County
We now turn to the application of these principles of law in
each county. As we have explained, the district court's findings
of dilution are infected by erroneous legal principles. Findings
that rest upon erroneous views of the law must be set aside.
Pullman-Standard v. Swint,
456 U.S. 273, 287
,102 S. Ct. 1781, 1789
(1982). Remanding for reconsideration is inappropriate where "the record permits only one resolution of the factual issue."Id. at 292
, 102 S. Ct. at 1792. Here, under controlling law, the evidence
will not support the findings of liability. Our analysis is common
to all counties but takes us along different routes in different
counties. In the six counties of Dallas, Tarrant, Travis, Midland,
Ector, and Lubbock, we hold that the district court clearly erred
in finding vote dilution. Even if the district court were correct,
the evidence would be outweighed by the State's substantial
interest in linkage. Finally, partisan voting at the least so
weakens the proof of dilution that it loses in the weighing of the
totality of the circumstances. Even if we assume that some
dilution may be inferred, in the three remaining counties the
evidence does not outweigh the State's interest in the totality of
the circumstances.
One thread runs throughout the plaintiffs' case in all of the
counties--an insubstantiality of proof that the minority-preferred
candidate lost "on account of race." Except in Dallas County, the
106
district court's finding of dilution rested on three recitations:
(1) the Gingles prerequisites; (2) an invocation of a general
history of discrimination; and (3) the number of minority judges
was not proportional to the general minority population. The size
of some counties and the absence of single shot voting were seen as
"enhancing" Zimmer factors. The district court also found two
instances of racial appeals in Dallas County, one in a judicial
race won by the minority with white support.
A. Dallas County
Plaintiffs proceed on behalf of black voters in Dallas County.
The voting age population of Dallas County is 1,106,757. Of this
number, 180,294 (16.3%) are black. There are thirty-six different
district courts in Dallas County. Until 1987, none of the judges
of these districts were black. In 1987 and 1988, three of the
district judges, or 8.3% of the total, were black. In 1989, there
were two black district judges in Dallas County, 5.5% of the total.
Today, five of the thirty-seven36 district judges in Dallas (13.5%)
are black. County court judges are also elected at-large in Dallas
County; two of those judges are black. Undisputed expert testimony
and surveys showed that less than 2.0% of the lawyers in Dallas
County are both eligible to serve as district judges and black.
The evidence in Dallas County clearly establishes that
judicial elections are decided on the basis of partisan voting
patterns. We are left with the inescapable conclusion that
plaintiffs have failed to prove that minority-preferred judicial
36
Another district court was added by the legislature.
107
candidates in this county are consistently defeated by racial bloc
voting. This is a failure to meet the threshold showing required
by Gingles.
Uncontroverted evidence demonstrates that 99% of black Dallas
voters support the Democratic candidate in every judicial election.
The evidence also indicates that the majority of white voters
always voted for the Republican, and thus for candidates other than
the black-preferred Democratic candidate. As a result of these
voting patterns, the black-preferred Democratic candidate always
lost in judicial elections, regardless of the year of the election
in Dallas County. The Republican Party dominated every analyzed
judicial race. Defendants understandably contend that the defeat
of black-preferred candidates is the result of party affiliation
rather than racial considerations. According to defendants,
elections are determined by straight-party voting in which voters
support their party's ticket regardless of the race of the
candidates. The undisputed facts overwhelmingly support this
contention. Plaintiffs offer the only answer they have--the
evidence is not legally relevant.
Drs. Engstrom and Taebel, plaintiffs' and defendants' experts
respectively, analyzed seven district court general elections with
black candidates. The following table summarizes the experts'
analyses, in particular the amount of support from white voters
received by each candidate. The first figure represents the "non-
black vote" as estimated by plaintiffs' expert. The range is
defined by the homogenous precinct and bi-variate regression
108
analysis performed by Engstrom. The second figure, in parentheses,
represents the white vote as estimated by Taebel. Taebel did not
analyze the 1984 Tinsley-Maloney race.
Table VI.A
Year Court Candidates Race Party Non-black (white) vote
1980 191st District Winn B D 38.6-39.7% (36%)
Howell W R
1984 Crim Dist Ct 2 Baraka B R 60.6-61.8% (61%)
Metcalfe W D
" Crim Dist Ct 4 Tinsley B D 28.7-30%
Maloney W R
" 301st District White B D 30.6-31.9% (31%)
O'Donnell W R
1986 195th District Tinsley B D 36.6-37.5% (31%)
Kendall W R
" 256th District Wright B R 70.6-71.7% (77%)
Brin W D
1988 95th District Oliver B D 36.9-37.9% (38%)
Brown W R
Roughly 61%-77% of white voters consistently supported Republicans,
even when black Republicans ran against white Democrats. Virtually
all black voters supported the Democratic candidate, even when the
Democratic candidate was white, running against black Republicans.
Black Republicans won in two of the seven analyzed district
court races. According to Taebel's study, one of these
Republicans, Carolyn Wright, did better among white voters than any
other Republican, white or black, winning 77% of the white vote.
Other black Republicans received percentages of the white vote
comparable to those received by white Republicans. Judge Baraka,
the other black Republican district court candidate, took about 61%
of the white vote against a white Democrat. County Judge Brashear,
another black Republican running at-large against a white Democrat,
took 66% of the white vote in his successful race for a county
court judgeship.
109
Just as black Republicans did as well or better than white
Republicans, black Democrats also won as large a percentage of the
white vote as white Democratic candidates. The white vote for
Democratic candidates ranged between 23% and 39%. According to
plaintiffs' exhibits, black Democrat Oliver won about 38%--a larger
than average share of the white vote for a Democrat. Winn, another
black Democrat, received almost four out of ten white votes. By
comparison, white Democrat Brin received no more than 29% of the
white vote when running against Wright, a black Republican.
Republican candidates lost the black vote and won the white
vote regardless of their public positions on matters related to
race. Judge Wright, for instance, had been a member of the Dallas
Chapter of the Coalition of 100 Black Women; served as a legal
intern for the Lawyers' Committee on Civil Rights, a project
related to civil rights in South Africa; and was a charter member
and past vice-chair of the National Political Congress of Black
Women. By contrast, the record is silent regarding the record of
her white Democratic opponent, Brin. Brin nevertheless won the
black vote handily in the general election. At the same time, an
overwhelming number of white voters supported Wright.
Dr. Champagne, an expert called by defendants, testified that
this voting pattern was the result of straight-ticket voting.
According to Dr. Champagne, judicial elections are low-profile
elections in which the voters know little more about the candidates
than what they read on the ballot. The voters, therefore, will
make their choice based upon the information that the ballot
110
contains--party affiliation. Because a majority of voters in
Dallas County are Republican, Republican candidates prevail in most
of the judicial races.
We are unable to find the requisite presence of race in this
data. The undisputed facts permit no conclusion but that the
defeat of black-preferred candidates was the result of the voters'
partisan affiliation. The black-preferred candidate was always the
Democratic candidate, while the majority of white voters always
supported the Republican candidate. It is significant to the probe
for racial influences that 30% to 40% of the white electorate
supported Democratic candidates, although the combination of black
and white Democratic votes was insufficient to carry the Democratic
candidate. The point is that a black Democratic voter and a white
Democratic voter stand in the same position. Both are unable to
elect the Democratic judicial candidate they prefer.
We repeat. The race of the candidate did not affect the
pattern. White voters' support for black Republican candidates was
equal to or greater than their support for white Republicans.
Likewise, black and white Democratic candidates received equal
percentages of the white vote. Given these facts, we cannot see
how minority-preferred judicial candidates were defeated "on
account of race or color." Rather, the minority-preferred
candidates were consistently defeated because they ran as members
of the weaker of two partisan organizations. We are not persuaded
that this is racial bloc voting as required by Gingles.
111
Plaintiffs contend that the Democratic Party better represents
the political views of black voters in Dallas County. This is
doubtlessly the view of black voters, but it is not relevant to
whether the minority-preferred candidate is defeated on account of
race. To the extent that candidates preferred by black voters are
consistently defeated because of their substantive political
positions, they are the casualties of interest group politics, not
racial considerations. This is not the harm against which § 2
protects. Section 2 protects black voters against defeat on
account of race or color, not on account of political platform.
See Whitcomb, 403 U.S. at 154-55, 91 S. Ct. at 1874-75. We are
sensitive to the reality that political positions can be proxies
for racial prejudice. However, where white voters support black
candidates of a particular party in larger percentage than they
support white candidates of the same party, there is no basis,
without more, for us to conclude that the parties' political
positions are proxies for racial bias.
Even assuming arguendo that plaintiffs have met the Gingles
threshold by showing racial bloc voting, the totality of
circumstances in the record cannot support a § 2 violation.
Plaintiff-intervenors Oliver, White, and Tinsley contend that "race
considerations pervade elections in Dallas County." They support
this proposition with the district court's finding that there were
two instances of overt or subtle racial appeals in Dallas County
elections. In one, judicial candidate Baraka was labeled a "Black
Muslim" by his opponent. In another, district attorney candidate
112
Vance printed his own and his opponent West's pictures in campaign
literature, thus informing the electorate that he was a white
candidate running against a black opponent. Nothing in the
district court's opinion indicates that these racial appeals were
anything more than isolated incidents. In the only judicial
election affected by a racial appeal, Judge Baraka, the black
candidate, won both the Republican primary and the general
election, winning a majority of the white vote in both elections.
Oliver, Tinsley, and White also contended at trial that voting
patterns in nonpartisan elections show that partisan affiliation
could not explain the defeats of black-preferred candidates. Dr.
Weiser, a statistician with experience in voting rights litigation,
presented this data. Weiser examined seven Dallas City Council
elections, a presidential primary, and referenda on public transit
funding, a police-review board, and the city council structure.
The district court made no findings about the data. Assuming
arguendo that these high-profile elections had any relevance to
voting patterns in low-profile judicial elections, the data
presented do not support plaintiffs' argument. For example,
although Weiser emphasized that black city council candidate
Williams drew 27% and 7% of the vote in the most predominantly
black and white precincts, respectively, the fact remains that his
opponent Rucker won a majority of the black vote and the election.
Other black-preferred candidates, such as Strauss in 1983,
prevailed in three of the other six city council elections Weiser
studied. In the 1984 Democratic presidential primary, Jesse
113
Jackson won a plurality (46%) of the Dallas vote. Simply put,
these nonpartisan elections do not demonstrate the consistent
defeat of minority-preferred candidates. To the contrary, the
evidence shows that black-preferred candidates won a majority of
the white vote and the election in most cases.
Extending our compass to the totality of circumstances fails
to bring evidence that racial politics played any role in the
defeat of black-preferred candidates. The district court rejected
the suggestion that the Republican Party is a white slating
organization. Testimony shows that any eligible candidate could
run as a Republican, regardless of race. The plaintiff-intervenors
testified themselves that they had been heavily lobbied by the
Republican Party leadership to run on the Republican ticket.
Running as Republicans, the great likelihood is that these former
district judges would have been elected, as plaintiff-intervenors
conceded at trial.
The plaintiffs presented general evidence of the lingering
effects of past discrimination, but offered no specific evidence of
depressed levels of black political participation such as low black
voter registration or turnout. On the contrary, the minority-
preferred candidates ran professional, well-financed campaigns
backed by the Democratic Party, a party that, until the late
1970's, had dominated Dallas County judicial races just as
completely as the Republican Party now dominates those races.
These Democratic candidates lost because Dallas County shifted from
114
being a county of predominantly Democratic straight-ticket voters
to a county of mostly Republican straight-ticket voters.
Plaintiffs made no factual riposte to the overwhelming
evidence that election outcomes were the product of partisan
affiliation. Rather, plaintiffs' answer was the legal assertion
that the effect of partisan affiliation, virtually admitted, is not
relevant. Plaintiffs' expert, Engstrom, conceded that there is "a
stronger association between partisan affiliation and success than
there is between the race of the candidate and success," while
clinging to the assertion that partisan affiliation does not
explain all of the voting patterns in Dallas County. Finally, he
conceded that he had no data that black Democrats generally did
worse than white Democrats. In fact, the undisputed facts show
that, when one controls for party, black candidates did as well as,
or better than, white candidates in winning the white voter and
elections. Plaintiff-intervenor White conceded that partisan
affiliation determined her electoral defeat in 1984. She admitted
that "if I ran as a Republican . . . the likelihood is that I would
win."
In short, the facts demonstrate that partisan affiliation, not
race, was responsible for the defeat of the minority-preferred
candidate in Dallas County. The district court erred in finding
racial vote dilution and a violation of § 2.
B. Harris County
Harris County elects 59 district judges at-large. Three are
black, three are Hispanic, and the rest are Anglo. One black
115
county court judge also was elected at-large. Uncontested expert
testimony and surveys establish that black lawyers make up at most
3.8% of the eligible lawyers, but comprise 5.1% of Harris County's
district judges. According to plaintiffs' evidence, 1,685,024
people of voting age reside in Harris County; 305,986 (18.2%) are
black, and 222,662 (13.2%) are Hispanic. Plaintiffs claim to
represent all black voters in Harris County.
The district court found a § 2 violation based on the three
Gingles prerequisites, two primary Zimmer factors, and three
"enhancing" Zimmer factors. The primary Zimmer factors were (1)
the general history and lingering effects of past discrimination
and (2) the small number of successful black judicial candidates.
The enhancing Zimmer factors were (1) the large size of Harris
County; (2) the prevention of single shot voting by numbered post
election; and (3) the majority runoff requirement in primary
elections. Defendants contend that, under the proper legal
standards, the evidence before the district court amounts at best
to a weak case of dilution that is clearly outweighed by Texas'
interest in linkage. We agree.
Defendants argue that the district court's determination that
Harris County district court elections were characterized by
legally significant racial bloc voting rests on two fundamental
departures from controlling law. They maintain that the district
court erred in (1) refusing to consider evidence demonstrating that
divergent voting patterns among black and white voters were
attributable to partisan affiliation and (2) excluding elections in
116
which the black-preferred candidate was Hispanic despite
overwhelming evidence that Harris County black and Hispanic voters
were a cohesive group within the meaning of § 2. In light of our
previous discussion, these contentions plainly have merit.37
Engstrom studied only 17 district court elections involving
black candidates. Taebel studied 45 Harris County judicial
elections between 1980 and 1988 with either a black or Hispanic
candidate, including 24 district court elections, 9 county court
elections, one court of appeals election, one Supreme Court
election, and ten primary elections. Taebel examined all but two
of the elections analyzed by Engstrom. Including the 42 races
listed in Judge Wood's exhibits, the record before the district
court contained a total of 45 general elections that involved
37
The Houston Lawyers' Association maintains that the
district court properly refused to consider elections in which
black and Hispanic voters gave their united support to Hispanic
candidates. The Association does not deny that black and Hispanic
voters uniformly supported the same candidates in virtually every
election analyzed, thus making them a cohesive group under our
precedents. Rather, it objects to our examination of these races
on the more general grounds that "minorities protected by the
Voting Rights Act are not interchangeable" and that the success
of Hispanic candidates "does not tell us anything about the
willingness of white voters to support African American
candidates." These objections, of course, go directly to the
rule permitting the aggregation of different racial and ethnic
minorities itself rather than its application to the facts of
this case. We do not understand either the Association or any
other plaintiffs to challenge the validity of this general rule.
Nevertheless, as we demonstrate below, the weight of Texas'
linkage interest precludes the finding of a § 2 violation even if
these Hispanic-white elections are excluded.
117
minority candidates. Forty of these were indigenous district or
county court elections.38
38
Table VI.B
Indigenous judicial elections (Harris County)
1. candidate listed first prevailed
2. bold indicates black-preferred candidate
3. * indicates race Engstrom studied
4. T indicates victory by black-preferred candidate
Year Court Candidates Race Party
1980 80th District* McAfee W R
Bonner B D
" 309th District Zimmerman W R
Hinojosa H D
" County Crim Ct 6 Musselwhite W R
Muldrow B D
1982 157th District Salazar H D T
Powell W R
" 208th District* Routt B D T
Arnold W R
" 262d District* Shaver W R
James B D
" 281st District* Moore W R
Ward B D
" 308th District Robertson W D T
Leal H R
" County Crim Ct 6 Musselwhite W R
Muldrow B D
" County Crim Ct 9 Leal H D T
Kolenda W R
1984 80th District* Powell W R
Berry B D
" 178th District* Harmon W R
Jackson B D
" 215th District* Chambers W R
Lee B D
" 339th District Lanford W R
Salinas H D
" County Civil Ct 3 Hughes W R
Hobson B D
1986 133d District* McCorkle W R
Plummer B D
" 157th District Salazar H D T
Wittig W R
" 180th District Lykos W R
Guerrero H D
" 185th District* Walker B D T
Godwin W R
" 209th District McSpadden W R
Sanchez H D
" 232d District Azios H D T
Youngblood W R
" 245th District* Schuble W D T
Proctor B R
" 281st District* Moore W R
Berry B D
" 308th District Robertson W D T
Dodier H R
" County Civil Ct 3 Hobson B D T
Hughes W R
" County Crim Ct 3 Duncan W D T
Irvin B R
" County Crim Ct 4 Anderson W R
Williams B D
" County Crim Ct 9 Leal H D T
Powell W R
" County Crim Ct 11 Mendoza H D T
Pickren W R
" County Crim Ct 13 Atkinson W R
Fitch B D
" County Crim Ct 14 Barclay W R
Fisher B D
" County Probate Ct 4 McCullough W R
Lee B D
1988 80th District* Powell W R
Berry B D
" 133d District* McCorkle W R
Plummer B D
" 152d District* O'Neill W R
118
As in Dallas County, voters' preferences were strongly
influenced, if not dictated, by partisan affiliation. The black-
preferred candidate in Harris County, regardless of race, was
always the Democratic candidate. For white voters, party
affiliation always trumped race in predicting which candidates
would be supported. The Republican candidate always won the white
vote, generally taking between 55% and 65%, whether the Republican
candidate was black, Hispanic, or Anglo. Similarly, Democratic
candidates always took almost all black and Hispanic votes, even
when a white Democrat ran against a black or Hispanic Republican.
Both the exhibits and expert testimony indicated that party,
not race, was the decisive factor in determining electoral
outcomes. For example, when white Democrat Schuble defeated black
Republican Proctor in a 1986 district court race, Proctor won the
majority of the white vote, but lost more than 95% of the black
vote to Schuble. Likewise, when Irvin, another black Republican,
ran for a county court judgeship against white Democrat Duncan,
Irvin won the white vote while Duncan received virtually all of the
black vote. Kenneth Hoyt, now a United States District Judge, won
the white vote and the election in his bid for the state appellate
bench against a white Democratic opponent in 1984. Yet despite the
Fitch B D
" 179th District Wilkinson W R
Guerrero H D
" 215th District* Chambers W R
Jackson B D
" 295th District* Downey W R
Lee B D
" 333d District* Wilson W R
Spencer B D
" 351st District Salinas H D T
Pruett W R
119
endorsement of the Houston Lawyers' Association, Judge Hoyt lost
virtually all of the black vote.
It is against this backdrop of straight-ticket voting that the
limited success of black-preferred candidates described by Engstrom
must be assessed. Engstrom limited his study to elections
involving black candidates. Since the black-preferred candidate
often is not black, this precluded Engstrom from determining
whether whites in Harris County consistently voted as a bloc to
defeat black-preferred candidates, as he admitted at trial.
Engstrom also excluded judicial elections with Hispanic candidates
and races for seats on the county court, which are also conducted
on a county-wide basis.
The black-preferred candidate won only two, or 11.8%, of the
17 district court elections analyzed by Engstrom. Ten of these
losses by black Democrats, however, occurred in 1980, 1984, and
1988, when popular Republican presidential candidates helped
Republican judicial candidates to defeat virtually all of their
Democratic opponents. The victors included Judge Hoyt, a black
candidate running as a Republican. As Engstrom conceded, white and
black Democrats alike were "wiped out" during these years.
The fortunes of Harris County Democrats, and thus black
voters, improved considerably in 1982 and 1986, when either
Governor Mark White or Senator Lloyd Bentsen headed the Democratic
ticket. As in the Republican years of 1980, 1984, and 1988,
success at the top of the ballot carried down to judicial races
marked more by anonymity than name identity. Thus, black-preferred
120
candidates won more than a third of the indigenous judicial races
in which black candidates participated--5 out of 14, or 35.7%.
Considering elections with Hispanic candidates, black-preferred
candidates won 13 out of 24 indigenous judicial elections, or
52.4%. Narrowing the focus to district court races, black voters
elected the candidate of their choice 8 out of 14 times. In these
years, the black-preferred candidate for district judge won in
57.1% of the elections studied. Even when the results of the lean
years of 1980, 1984, and 1988 are included, we find that the black-
preferred candidate prevailed in 14 out of 40 (35%) of all
indigenous judicial elections with minority candidates. The record
also indicates that black-preferred candidates won three out of
five exogenous races for appellate and Supreme Court seats during
these years.
Plaintiffs insist, however, that partisan affiliation cannot
explain all of the results in this case, for in years not dominated
by the Republican Party, black Democrats enjoyed less success than
other Democrats. In the 1982 district court contests, white and
Hispanic Democrats won 12 of 14 races, while black Democrats won
only one of three. In 1986, black Democrats won two of eight
indigenous judicial races; the success rate of white Democrats is
not found in the record. Engstrom stated, without discussing the
supporting data, that between 1980 and 1988, white Democratic
candidates enjoyed a better success rate than their black
counterparts.
121
This evidence may reflect a preference among white Democrats
for white and Hispanic rather than black candidates. Plaintiffs'
assertion that race is at work, however, is contradicted by the
success of black candidates in the Democratic primary, where party
affiliation plays no part. An exhibit introduced by Houston
Lawyers' Association shows that black candidates won 9 of 16, or
56.3%, of the contested primary races. This showing detracts from
the force of plaintiffs' claim.
The proof of vote dilution is marginal. The undisputed facts
show that a majority of white voters invariably supported black
Republican candidates, suggesting that the defeat of minority-
preferred candidates was largely, although not entirely,
attributable to partisan affiliation. Moreover, black voters were
consistently able to elect representatives of their choice, even
when they were opposed by a majority of white voters. The record
indicates that black-preferred candidates prevailed in 14 out of 40
non-exogenous elections in which either black or Hispanic
candidates participated--35% of the time. Limiting the inquiry to
district court races, black-preferred candidates still won in 9 of
28 races, or 32.1%.
Black voters could, therefore, repeatedly elect candidates of
their choice, even when opposed by a majority of white voters. Far
from being submerged in a white majority, black voters were a
potent electoral force that could form coalitions with minorities
of white voters to elect their preferred candidates. This ability
to form coalitions and influence the elections of all judges in
122
Harris County would be lost in the system of single-member
districts proposed by the plaintiffs. Instead, black voters might
control the election of perhaps ten judges, abdicate any right to
vote for the remaining forty-nine, and thus radically reduce the
chances of having disputes affecting them decided by a judge they
had any hand in electing. A similar observation can be made in the
other counties but is strikingly apt in this large urban
environment.
The remaining evidence adds little to plaintiffs' claims of
illegal vote dilution. Plaintiffs offered little evidence that
past discrimination and socioeconomic disparities between blacks
and whites hindered the ability of black residents of Harris County
to participate in the political process. In particular, there was
no suggestion at trial of a lower-than-average voter registration
or turnout rate among black citizens. In addition, the evidence
indicated that disproportionate levels of poverty within the black
community had no effect on the ability of black judicial candidates
to raise the funds necessary to compete on a county-wide basis. At
trial, Bonnie Fitch testified, without elaboration, that a few
black incumbents experienced some difficulty in obtaining financing
for their campaigns, but she attributed these problems to "racial
discrimination" and the candidates' "past record of losing." Even
if this isolated, equivocal testimony could somehow be construed to
suggest that a lack of resources among black residents hindered
black candidates' campaigns, it was sharply contradicted by the
accounts related by Jackson and Berry, two black judicial
123
candidates. They testified that they were each able to raise
sufficient funds and that they in fact outspent their white
Republican opponents by ratios exceeding ten-to-one. In light of
this evidence, the district court's finding that the effects of
past discrimination hampered the black community's access to the
political process was clearly erroneous.
Likewise, the representation of blacks on the Harris County
bench cannot support an inference of racial politics. Three blacks
are district judges--5.1% of the total. By contrast, black
attorneys make up at most only 3.8% of the eligible lawyers in
Harris County. The fact that blacks constitute a smaller
percentage of the district judges than of the county population is
therefore not surprising. If judges were chosen at random from the
pool of eligible candidates, there would be fewer black district
judges on the Harris County bench.
Aside from the number of black judges and the general history
of discrimination, the district court found three Zimmer enhancing
factors. See Nevett v. Sides,
571 F.2d 209, 218
(5th Cir. 1978). Such factors enhance the opportunity of a white majority to engage in racial politics. They do not, however, "meaningfully advance the inquiry into whether race is at issue," Terrazas v. Clements,581 F. Supp. 1319
, 1346 n.26 (N.D. Tex. 1983) (three-judge panel),
and therefore do not support an inference of racial politics in
Harris County.
The circumstantial evidence of a relation between black
voters' electoral losses and race is, at best, tenuous, given the
124
willingness of white voters to support black Republican candidates
and the consistent success enjoyed by black-preferred judicial
candidates. Even if the considerable success among black-preferred
Hispanic candidates is discounted, the evidence presented at trial
hardly sums to the level of dilution that might outweigh Texas'
substantial interest in linking a trial judge's jurisdiction with
her electoral base. Given the undisputed evidence that nearly all
of the losses suffered by black candidates occurred in years when
virtually the entire party slate went down in defeat and
plaintiffs' negligible showing under the Zimmer factors, the claim
before us reduces itself to a contention that Texas' 143-year-old
electoral scheme must be dismantled in Harris County because a few
black candidates--most of them recently-appointed incumbents--
failed to attract decisive support from white voters within the
Democratic Party. We express no opinion as to whether this minimal
proof of dilution might establish a violation of § 2 absent the
substantial state interest. Even assuming that it would, we
conclude as a matter of law that plaintiffs' proof at best produces
only a marginal case in Harris County, too insubstantial to survive
the weighing of the totality of the circumstances particularly so
if any appreciable weight is given the linkage interest.
C. Tarrant County
There are 23 district courts in Tarrant County. From 1985 to
1988, three of these judges (13.0%) were black. As of 1989, two
district judges are black (8.7%). The defendants' undisputed
evidence indicates that only 2.4% of the eligible Tarrant County
125
lawyers are black. There are 613,698 residents of voting age in
Tarrant County. Of this number, 63,851 (10.4%) are black.
Plaintiffs proceed on behalf of black voters in Tarrant County.
The evidence indicates that blacks voted cohesively for the
Democratic candidate. Dr. Brischetto, plaintiffs' expert for this
county, analyzed four elections: three general elections for
district judgeships and the 1988 Democratic presidential primary.
In all four elections, the regression estimates show that from 85%
to 100% of black voters in Tarrant County supported the black-
preferred, Democratic candidate. Taebel's analysis similarly shows
cohesion.
Taebel analyzed nine general elections, including three
exogenous elections, in which a black or Hispanic had participated.
These included five district court races, one county court race,
two Supreme Court races, and a contest for Texas Attorney General.
Brischetto analyzed only four elections, in which black candidates
had participated. As in all other counties, the evidence shows
consistent black support for Democratic candidates. The following
tables summarize the analyzed races involving black or Hispanic
candidates. For each black-preferred candidate, the estimated
percentage of the white vote is listed. These are based upon
Taebel's estimates, except those in parentheses, which reflect
Brischetto's regression and homogenous precinct analyses. A
"check" mark indicates a victory by the black-preferred candidate.
Table VI.C
Indigenous judicial elections (Tarrant County)
126
Year Court Candidates Race Party White Vote
1982 233d District Valderas H D 36% T
Hines W R
" County Crim Ct 4 Perez H D 48% T
Lynch W R
1986 233d District Weaver W R
Valderas H D 40%
" Crim Dist Ct 1 Sturns B R
Goldsmith W D 43% (51-56%)
" Crim Dist Ct 4 Drago W D 45% (54-59%) T
Salvant B R
1988 Crim Dist Ct 2 Dauphinot W R
Davis B D 40% (42-50%)
Exogenous elections (Tarrant County)
Year Court/Office Candidates Race Party White Vote
1986 Attorney General Barrera H R
Mattox W D 39%
" Supreme Court Pl 4 Bates W R
Gonzalez H D 38%
" Supreme Court Pl 3 Gonzalez H D 46% T
Howell W R
1988 Dem Pres Primary Jackson B (14-16%)
Dukakis W
Gore W
Gephardt W
Hart W
Simon W
Unlike other counties, black judges occupied more than 13% of
the district judgeships in Tarrant County for four out of five
years--a proportion of the bench that is greater than the
proportion of black voters in the county's population.
The success of black-preferred candidates was also greater in
Tarrant County than elsewhere. In those general elections with
black candidates, the black-preferred, Democratic candidate won
only one out of three general elections--33.3% of the studied
races. However, in nine general elections with either black or
Hispanic candidates included in Taebel's study, the black-preferred
candidate won four out of nine, or 44.4% of the elections. In the
six indigenous district and county court elections studied, the
black-preferred candidate won three out of six, or 50% of the
127
elections. These figures do not indicate the consistent defeat of
black-preferred candidates.
The district court, by contrast, found that the black-
preferred candidate was consistently defeated in Tarrant County.
The district court reached this conclusion by ignoring elections in
which Hispanics had participated. This rejection of white-Hispanic
elections was erroneous. The undisputed facts, as reflected by
Taebel's exhibits, are that a majority of Hispanic voters always
supported the same candidate favored by black voters in every
general election. The district court found that Hispanic and black
voters were cohesive in Midland, Lubbock, and Ector Counties on
similar evidence. With virtually identical proof in Tarrant
County, the same conclusion must follow, and we hold that it does.
Brischetto included the 1988 Democratic presidential primary
in which Jesse Jackson won virtually all of the black vote in
Tarrant County, but only between 14% and 16% of the white vote.39
Defendants exhibits include a 1986 Democratic primary for district
court in which Ross, the black-preferred candidate, received 57% of
the black vote, but lost the white vote and thus came in third out
of a field of four candidates. Those exhibits show, however, two
other Democratic primaries--ignored by Brischetto--in which black-
preferred Hispanic candidates prevailed.40
39
We note that there were five other viable Democratic
candidates (Dukakis, Gore, Gephardt, Hart, and Simon) in the 1988
primary, so that Jackson could expect to receive only 16.7% of
the white vote if that vote were randomly distributed.
40
Taebel's exhibits also include a 1982 county court primary
that the black-preferred candidate, Hicks, seemed to win by seven
128
In short, the evidence shows that the black-preferred
candidate won 40% of the Democratic primaries and half of the
indigenous judicial elections studied, including the elections with
Hispanic candidates. The record also shows that black judges have
consistently made up a greater proportion of district judges in
Tarrant County (13.0%) than the proportion of black voters in the
county's population (10.4%), and far more than the proportion of
eligible black attorneys (2.4%).
Furthermore, the undisputed evidence shows that black
candidates won as great a share of white votes as white candidates,
if we control for party affiliation. For instance, Sturns, a black
Republican with a long history of involvement in civil rights and
black community organizations, won 57% of the white vote to beat a
white Democrat. Salvant, another black Republican, also won a
majority (55%) of the white vote, although he lost his race for a
district judgeship to a white Democrat supported by a combination
of black voters, Hispanic voters, and white Democrats. Black
Republicans also won the same share (50%) of elections as white
Republicans among the races with black or Hispanic candidates.
Finally, blacks have not been underrepresented on the Tarrant
County bench. Plaintiffs' exhibit indicates that, for four out of
the five years studied, three of Tarrant County's district judges
were black; for these four years, while blacks made up only 10.4%
of the county's voting age population, more than 13% of the
votes. This tabulation, however, was based upon elections
returns prior to a recount under which Hicks apparently lost.
129
relevant office holders were black. Given this persistent and
substantial black presence on the Tarrant County bench, the
consistent and substantial success of minority-preferred
candidates, and the absence of any evidence of racial politics in
Tarrant County, we conclude that, even if the plaintiffs had proven
the Gingles prerequisites, the district court clearly erred in
finding illegal vote dilution under the totality of circumstances.
This is so even if we ignore the fact that blacks and Hispanics
voted cohesively in Tarrant County and exclude the races with
Hispanic candidates from our analysis. Looking at just the
district court general elections involving black candidates, the
black-preferred candidate won 33.3% of the time. In light of the
evidence just discussed, which excluding Hispanic elections does
not change, reducing the relevant success rate from 44.4% to 33.3%
is insignificant in the totality of the circumstances. There is no
case as a matter of law in Tarrant County.
D. Travis County
There are 13 district judges elected in Travis County. From
1985 to 1988, one of them was Hispanic, or 7.7% of the total. This
judge was defeated in 1988. Hispanic lawyers make up 2.7% of the
eligible lawyers in the county. There are 312,392 voting age
residents in Travis County, which encompasses Austin, Texas. Of
them, 44,847 (14.4%) have Spanish surnames. Only 29,067 (9.3%) are
black. The district court found that a "minimally contiguous,"
predominantly-Hispanic judicial district could be created.
Plaintiffs proceed on behalf of Hispanic voters in Travis County.
130
Plaintiffs' witnesses stated that the Republican Party is
insignificant in Travis County and the proper testing ground for
candidates is the Democratic primary. Plaintiffs analyzed three
Democratic primary elections: one for district court and two for
county court positions. Defendants analyzed eleven elections:
four exogenous general elections, including one state senate, one
Attorney General, and two Supreme Court races; four exogenous
primary elections, including one state senate, one Supreme Court,
and two appellate court primaries; and finally the same three
indigenous judicial elections studied by plaintiffs.
By Taebel's analysis, the Hispanic-preferred candidate won all
four of the exogenous general elections. In three of the four, the
Hispanic-preferred candidate also won a majority of the Anglo vote.
In addition, the Hispanic-preferred candidate won two exogenous
primaries, for Supreme Court and state senate. Thus, the Hispanic-
preferred candidate prevailed in two of the four (50%) exogenous
primaries and two of the seven (28.6%) primaries studied overall.
Altogether, the Hispanic-preferred candidate won 54.5% of the
indigenous and exogenous elections analyzed.
The district court found, however, that the three indigenous
primary elections for judicial positions were "closer in nature to
District Court elections" and sufficed to show a pattern of racial
bloc voting sufficient to defeat the Hispanic-preferred candidate.
The district court therefore relied solely on the three elections
analyzed by both Taebel and Brischetto to find that the Hispanic-
preferred candidate lost 100% of the time.
131
In the one district court and two county court primary
elections analyzed by the parties, the Hispanic, and Hispanic-
preferred, candidate was defeated by a white majority. In one of
these races, however, white voters gave their support to a black
candidate, and thereby defeated both the Hispanic Castro and
Hughes, a white candidate. Kennedy, the black candidate, had the
overwhelming support of black as well as white voters, so it is
difficult to conclude that Castro was defeated by a white bloc.
Castro and Hughes were defeated by a black-white coalition. Thus,
Castro's defeat is not evidence of the white majority's ability
"usually to defeat the minority's preferred candidate." Gingles,
478 U.S. at 51, 106 S. Ct. at 2766-67.
The two remaining indigenous primary elections offer a meager
base for liability. The plaintiffs' case reduces to three facts:
(1) Hispanic-preferred candidates Gallardo and Garcia gained only
33% to 37% of the Anglo vote in 1988 Democratic primaries, and
failed to win nominations for district and county court elections;
(2) only one Hispanic, Gallardo, served as district judge between
1985 and 1998, while no Hispanic now serves; and (3) Hispanics have
suffered from past discrimination in Travis County. We conclude
that the district court clearly erred to find illegal vote dilution
on this record.
In finding clear error, we repeat Justice Brennan's admonition
that "the usual predictability of the majority's success
distinguishes structural dilution from the mere loss of an
occasional election." Gingles, 478 U.S. at 51, 106 S. Ct. at 2767.
132
It defies common sense to believe that the loss of two primary
races in one year constitutes usual and predictable defeat by a
white bloc, rather than simply "loss of an occasional election."
However, assuming arguendo that these two elections constitute
sufficient proof of the third Gingles prerequisite, they are too
meager to prove dilution under the totality of circumstances, as a
matter of law.
The plaintiffs contend that Hispanics are underrepresented
among district judges in Travis County. Hispanics made up 7.7% of
those judges in four out of five recent years, while making up no
more than 2.7% of the lawyers eligible under Texas law to fill
those posts. Given such a small pool of qualified candidates, it
is not surprising that Hispanics have made up a small proportion of
the Travis County bench. This result need not be attributed to the
interaction of racial bias with the at-large electoral scheme. It
is equally likely that the numbers reflect the limited candidate
pool. Plaintiffs can point to only one district court election
that an Hispanic candidate lost--Gallardo's race in 1988. Even if
Gallardo had prevailed, the percentage of Hispanic judges would not
have increased, because Gallardo was the one Hispanic sitting
before 1988. While we do not require that any minority candidates
run for the office in question, the court cannot ignore this
reality while plaintiffs emphasize the absence of minority office
holders.
Far from signalling the submergence of minority voting
strength by an interaction of electoral process and bias, the
133
undisputed facts indicate that Travis County's political system is
open to Hispanic and white candidates alike. Hispanics won half of
the four exogenous primary elections studied, including races for
the state senate, appellate courts, and Supreme Court. The
Hispanic-preferred candidate also won all four of the general
elections analyzed by the defendants. The City of Austin contains
most of Travis County's population. As this court noted in Overton
v. City of Austin,
871 F.2d 529, 540
(5th Cir. 1989):
Austin has repeatedly elected black and Mexican-American
council members during the past 17 years. . . . [T]he
winning minority candidates frequently received well over
fifty percent (50%) of the Anglo vote and were also the
preferred candidates of the minorities. Minority
candidates have routinely been elected to other posts in
Austin and the surrounding Travis County.
Likewise, the defendants here produced evidence that Hispanic
county commissioners had been elected from predominantly Anglo
districts and won Anglo districts, and that Trevino, a Hispanic
Austin city council member, had been elected in city-wide
elections. Against this background, which includes the success of
state Senator Barrientos and Justice Gonzalez and other Hispanic-
preferred candidates, plaintiffs' minimal case is plainly
insufficient to prove illegal vote dilution. The district court
clearly erred in finding otherwise.
134
E. Bexar County
The voting age population of Bexar County is 672,220. Of
these, 46,767 (7.0%) are black, and 278,577 (41.4%) are Hispanic.
Nineteen district judges are elected from Bexar County. Of this
number, five (26.3%) are Hispanic. Undisputed evidence shows that
11.4% of the eligible lawyers in Bexar County are Hispanic.
Plaintiffs proceed on behalf of Hispanic voters in Bexar County.
Plaintiffs and defendants analyzed the six district court
general elections with Hispanic candidates between 1982 and 1988.
Defendants also studied a 1980 general election with an Hispanic
candidate, as well as two appellate court and three county court
general elections with either Hispanic or black candidates. As in
every other county, Hispanics voted cohesively for the Democratic
candidate while a majority of Anglos supported the Republican
candidate.
In the twelve judicial elections studied, the Hispanic-
preferred Democratic candidate won four times, 33.3%. The
Republican candidate usually won the general election, and always
won the Anglo vote, regardless of the candidate. The four
Democratic victories were: (1) the 1980 appellate court race
between Murry and Esquivel; (2) the 1980 district court race
between Prado and Priest; (3) the 1988 district court race between
Bowles and Mireles; and (4) the 1988 county court race between
Patterson and Canales. Priest, an Anglo Democrat, beat Prado, an
Hispanic Republican, while Esquivel, Mireles, and Canales, all
Hispanic Democrats, defeated their Anglo Republican opponents.
135
Partisan affiliation does not explain, however, the voting
patterns in Democratic primary elections. By defendants' own
evidence of Democratic primaries in Bexar County, the Hispanic-
preferred candidate lost in nine of fourteen elections, prevailing
only 35.7% of the time, when Anglo Democrats voted for the Hispanic
candidate's Anglo opponent. Anglo support for the Hispanic
candidate was seldom above 30% and as low as 1%--whereas the
Hispanic vote for the Hispanic-preferred, and always Hispanic,
candidate was above 70% for five of the nine unsuccessful
candidates. Plaintiffs' as well as defendants' experts agreed,
however, that primary elections do not provide a reliable guide
where, as here, both parties are competitive, since they involve
only a fraction of the electorate.
Partisan affiliation accounts for much of the voting patterns
analyzed by the parties. Most Anglo voters are Republicans; most
Hispanic voters are Democrats. Anglo voters gave a majority of
their votes to Republicans, and Hispanic voters gave a majority of
their votes to Democrats, even when Hispanic Republican candidates
faced Anglo Democratic opponents. Prado and Barrera, Hispanic
Republicans, won 70% and 86% of the Anglo vote respectively, when
running against Anglo Democratic opponents who received the
overwhelming majority of the Hispanic vote. Any proof of dilution
is meager at best and cannot overcome Texas' substantial linkage
interest as a matter of law.
Because Hispanic voters make up more than 41% of the
population, they can elect Democratic candidate with minimal Anglo
136
support and have done so repeatedly. The minority-preferred
candidate won four out of twelve elections in which an Hispanic
candidate participated--33.3% of the time--with as little as 17% of
the Anglo vote. Hispanic voters are plainly a potent political
force that can elect candidates by forming coalitions with small
percentages of Anglo voters. If Bexar County were subdistricted,
Hispanic voters might elect a few more of their preferred
candidates, but only at the expense of losing their influence over
the majority of Bexar County judges. The perversity of such a
result is self-evident.
Finally, the evidence that elections were affected by racial
politics preventing the formation of such coalitions is thin. It
consisted solely of (1) evidence of low Hispanic voter
registration; (2) the usual enhancing factors present in every
Texas county--anti-single shot voting and the majority runoff
requirement; and (3) the fact that Hispanic judges occupy five of
nineteen district judgeships--26.3% of the total--while Hispanics
make up 41.4% of Bexar County's voting age population. Again, we
note that Hispanic attorneys make up only 11.4% of the eligible
bar, so that the representation of lawyers on the bench is actually
higher than would be produced by random selection from the pool of
eligible candidates. This evidence, even if probative in the
abstract, is as meager as the evidence in Harris County.
The evidence compels the conclusion that any dilution was
marginal and cannot as a matter of law survive the weighing of the
totality of the circumstances when Texas' substantial state
137
interest is added to the mix. If Texas' linkage interest does not
outweigh this evidence of dilution, the state's interest would be
a nullity. We hold that plaintiffs' proof fails in Bexar County as
a matter of law.
F. Jefferson County
Eight district judges are elected from Jefferson County. The
record shows that no black judge was elected there between 1985 and
1989.41 Expert evidence establishes that fourteen eligible
attorneys in Jefferson County, 3.1% of the qualified bar, are
black. The voting age population of Jefferson County is 179,708.
Of this number, 44,283 (24.6%) are black. Plaintiffs proceed on
behalf of black voters in Jefferson County.
Taebel testified that Jefferson County is the most Democratic
of the targeted counties, with 90% of its voters participating in
the Democratic primary. Brischetto analyzed eight primary and
runoff elections, including the 1988 Democratic presidential
primary. Taebel analyzed six exogenous elections involving either
black or Hispanic candidates: four primaries and two general
elections. Unlike their other studies, Brischetto and Taebel
analyzed totally different elections.
In all but one of the primary elections studied by Brischetto,
the black vote was cohesive. In one case, the candidate with the
41
Since trial, district judges in Jefferson County have
filed an amicus brief requesting judicial notice that Davis, an
African-American, was elected to the county court in 1990. The
amicus brief also notes that black Democrat Overstreet and
Hispanic Democrat Morales won a majority of the county's votes in
their respective 1990 races for Court of Criminal Appeals and
Attorney General.
138
greatest black support received a high plurality (47%) of the black
vote. A majority of white voters always opposed the black-
preferred candidate in the primary elections.
Whether the black-preferred candidate was consistently
defeated by a white bloc is a close question. The answer varies
with the elections counted and how they are counted. Defendants
point to four primaries. In two elections, black candidate Price
won the nomination for state representative. In two others, for
Supreme Court and Court of Criminal Appeals, black-preferred
Hispanic candidates Gonzalez and Martinez participated. Gonzalez
won the Jefferson County Democratic vote; Martinez did not.
Defendants also rely on two exogenous general elections, for
Supreme Court and Attorney General, involving Hispanic candidates
Gonzalez, a Democrat, and Barrera, a Republican. In both general
elections, the black-preferred candidate--Gonzalez and Mattox,
Barrera's Democratic opponent--prevailed.
Plaintiffs offer five indigenous primaries, ranging back to
1972, in which black candidates participated--four for justice of
the peace and one for county court. They also submitted the
exogenous 1988 presidential primary. Among these six races, the
black-preferred candidate prevailed only once, when Jackson won a
plurality in the 1988 presidential primary.
The total of eight elections analyzed by Brischetto includes
both the initial primaries and subsequent runoffs for justice of
the peace in 1972 and 1974. In the initial primaries, black-
preferred candidate Freeman failed to win the highest plurality.
139
Plaintiffs would count these results as "defeats" separate from
Freeman's subsequent defeat in the runoffs. Freeman won, however,
the second highest number of votes in the initial primaries and
thus made those runoffs. We do not consider Freeman's showings in
the initial primaries to be separate from the runoff elections.
Thus, the record reflects four justice of the peace elections, not
six.
Unlike Tarrant County, defendants' evidence does not include
estimates of how Hispanic residents in Jefferson County voted.
There are no facts showing that Hispanic and black voters were
politically cohesive in Jefferson County. Anglo-Hispanic elections
are entitled to less weight than white-black races in determining
the success of black-preferred candidates.
Nonetheless, confining our consideration to the analyzed
elections in which black candidates participated, we must conclude
that the plaintiffs failed to prove a substantial case of dilution.
The plaintiffs and defendants together produced evidence of eight
primary elections in which a black who was also the black-preferred
candidate participated. The black-preferred candidate won three
primaries out of these eight elections--a success rate of 37.5%.
All three of the black-preferred candidates' victories were
exogenous: Jackson won the 1988 presidential primary, while Price
won two Democratic primaries for state representative.
As in every county but Dallas, the district court found no
sign of racial appeals. Likewise, there is no finding of non-
responsiveness on the part of elected officials to the concerns of
140
black constituents. Enhancing factors as well as past
discrimination were shown, but--as elsewhere--were not brought home
to this case. The minority-preferred candidate prevailed in every
general election submitted by the parties.
The plaintiffs' case was further weakened by their use of
dated statistics: three of the five indigenous elections they
submitted were held in 1972, 1974, and 1978. There is no evidence
of a practical and searching appraisal of contemporary conditions
in Jefferson County. See Nipper v. Chiles,
795 F. Supp. 1525, 1540
(M.D. Fla. 1992) (noting limited probative force of "stale"
elections).
We have here no more than marginal proof of illegal vote
dilution. The evidence is inadequate to prove that black voters
were denied an equal opportunity to participate in the political
process. It is too insubstantial to survive a weighing of the
totality of circumstances when the state's substantial linkage
interest is added to the mix. As a matter of law, the state's
interest outweighs this case.
G. Midland County
Midland County contains 82,636 voting age residents, of whom
6,893 (11.9%) have Spanish surnames and 4,484 (7.8%) are black.
There are three district judges in Midland County; none are
Hispanic or black. Undisputed evidence shows that seven Hispanic
and three black attorneys are eligible for district judgeships.
They comprise 3.2% of the lawyers eligible to run for that office.
141
Plaintiffs proceed on behalf of both Hispanic and black voters in
Midland County.
Plaintiffs analyzed three general elections in Midland County.
Two of them were exogenous races for the Texas Supreme Court. The
third was an indigenous race involving a black candidate for a
Justice of the Peace position in 1986. Defendants likewise
examined Gonzalez's bids for the Supreme Court in 1986 and 1988, as
well as four primary elections in which either a black or Hispanic
candidate participated. Defendants also analyzed the Mattox-
Barrera race for Texas Attorney General.
Both parties' analyses show that the majority of Anglo voters
always opposed the candidate preferred by the geographically
compact and cohesive combined minority population in the general
elections. The minority-preferred candidate was always defeated by
this Anglo majority.
We conclude that the district court clearly erred in finding
dilution. The undisputed facts indicate that partisan affiliation,
not race, caused the defeat of the minority-preferred candidate.
The majority of minority voters always cast their votes in favor of
the Democratic candidate. The Anglo voters cast the majority of
their votes for the Republican, regardless of the race of the
candidates. Indeed, Barrera, the Hispanic Republican candidate for
Attorney General, won 76% of the Anglo vote when running against
Mattox, a white Democrat--the second highest vote received by any
of the Republicans in the analyzed general elections. Because
Republican voters outnumbered Democratic voters, the minority-
142
preferred Democratic candidate consistently lost. The plaintiffs
have not established the third prerequisite of Gingles.
Even if plaintiffs could meet the Gingles threshold, the
totality of circumstances does not add up to dilution. The
plaintiffs can show only a general history of discrimination and a
lack of minority judges. These facts prove little. In Midland
County, only one minority lawyer has run for local office (county
attorney), and none has ever run for a district judgeship. These
low numbers reflect the minuscule number of eligible minority
candidates. According to the evidence, only ten minority lawyers
are eligible to run for the district court seat.
Because the undisputed facts show that partisan affiliation
uninfected by racial politics caused the minority-preferred
candidates' defeat, we hold that the district court erred in
finding dilution.
H. Lubbock County
Lubbock County residents vote for five district court
positions. None of these five judges are black or Hispanic. The
surveys introduced by the defendants indicate that 23 Hispanic
lawyers in Lubbock County are eligible to run for the district
court. The surveys show that no black residing in the county is
eligible to do so. The total voting age population is 150,714. Of
this number, 22,934 (15.2%) have Spanish surnames and 9,509 (6.4%)
are black. Plaintiffs proceed on behalf of the combined Hispanic
and black voters in Lubbock County.
143
None of the parties analyzed indigenous elections in Lubbock
County; no minority has ever run for a position on the district
court. Plaintiffs analyzed two exogenous primaries and two
exogenous general elections, for the Supreme Court and for the
Court of Criminal Appeals. Defendants studied the same two general
elections, adding an exogenous general election for Attorney
General.
Plaintiffs' and defendants' evidence shows that blacks and
Hispanics tend to vote cohesively. There is also no dispute that
the majority of Anglo voters did not support the candidate favored
by the minority voters in Lubbock County in any of the elections
studied.
As in Dallas and Midland Counties, however, the undisputed
facts show that, in general elections, partisan affiliation and not
racial politics caused the consistent defeat of the minority-
preferred, always Democratic, candidates. The data indicate that,
in these counties, over 60% of white voters supported the
Republican candidate, while most minority voters supported the
Democratic candidate. As a result of this voting pattern, the
Democratic and minority-preferred candidate consistently lost to a
Republican opponent, regardless of the ethnicity of the candidates.
In the 1986 and 1988 races for the Supreme Court, Hispanic
Democrat Gonzalez lost Lubbock County's vote to white Republican
opponents. However, in the contest for Attorney General, Barrera,
an Hispanic Republican, defeated Mattox, a white Democrat. Like
Gonzalez's Republican opponents, Barrera took a majority of the
144
Anglo votes, while his white opponent took a majority of the
minority votes. In short, as in Midland County, the evidence
establishes that voting patterns in Lubbock County were unaffected
by the race of the candidates. Rather, they resulted from party
loyalty. Therefore, plaintiffs have not met the third Gingles
factor.
The plaintiffs point to two exogenous Democratic primary
elections for state appellate and Supreme Court positions.42
However, the minority-preferred candidate won a majority of the
votes cast in one of these two elections. Although Martinez was
defeated, Gonzalez won a majority of the votes cast in the Lubbock
County Democratic primary for the Supreme Court. These primary
races, therefore, do not indicate that the minority-preferred
candidate was consistently defeated within the meaning of Gingles,
and they cannot establish dilution.
I. Ector County
There are four district judges in Ector County. All of them
are Anglo. There are fewer than 200 lawyers in the county.
Surveys estimate that no more than six of them are black or
Hispanic and eligible to become district judges. Ector County,
whose principal city is Odessa, has 79,516 voting age residents.
14,147 (17.8%) are Hispanic, while 3,255 (4.1%) are black.
42
As we stated in the discussion of Jefferson County, supra
Part VI.F, we hold that the runoff election subsequent to a
primary election is a single election for the purposes of
computing the success or failure of the minority-preferred
candidate. The victor of the runoff election is the victor of
the combined primary/runoff race.
145
Plaintiffs proceed on behalf of the combined minority population in
Ector County.
The parties relied on the same exogenous races in Ector County
that they produced in Lubbock County. The plaintiffs examined
primary and general elections for appellate courts involving
Martinez and Gonzalez. The defendants added Barrera's bid for
Attorney General.
The undisputed facts indicate that the minority-preferred,
Democratic candidates were consistently defeated in general
elections by an Anglo majority voting for their Republican
opponents. In the Democratic primaries, Martinez won a majority of
the vote. The minority-preferred candidate won half of the
Democratic primary races and therefore was not consistently
defeated in the primaries.
As in Lubbock County on virtually identical facts, we find
that the district court clearly erred in finding racial vote
dilution. The undisputed facts indicate that partisan affiliation
controlled the outcomes of the general elections. As in Lubbock
County, while Hispanic Democratic candidates lost the Anglo vote,
Barrera, a Hispanic Republican, won a majority of the Anglo vote
running against his white Democratic opponent Mattox.
While partisan affiliation would not explain polarization in
the primaries, the facts indicate that the minority-preferred
candidate was not consistently defeated by racial polarization in
the primary elections. Rather, Martinez won one of the two races
146
analyzed. Plaintiffs have failed to meet the third prerequisite of
Gingles.
VII. Conclusion
We would expect over time that the Texas judiciary would
reflect the black and Hispanic population eligible to serve--if
judges, for example, were drawn from a pool of all persons eligible
to serve. In truth, minority lawyers fare better than we would
expect from a random process. We do not suggest that because they
fare better than they would in a system of random selection, voting
rights of blacks and Hispanics could not have been illegally
diluted. Rather, the observation is relevant because it brings
perspective to this battle by drawing borders around its asserted
implications and deflating overdrawn invocations of large wrongs of
history, unremedied and unanswered.
There is no disparity between the number of minority judges
and the number of minorities eligible to serve. Rather, the only
disparity is between the minority population and minorities
eligible to serve as judges. Much can be said about that--of
deficits in education and other social shortchangings of black and
Hispanic persons. To those who push judicial entry onto this
larger field we must answer that our task is more narrowly drawn--
to decide if voting rights have been denied. We lack the
authority, even if we had the wisdom, to do more. The Voting
Rights Act is not an unbridled license--to explore for example the
persistent low enrollment of black law students. One small
example. This year the law school at Louisiana State University
147
graduated the largest number of black students in its history.
This followed intensive recruiting efforts including the inducement
of a free education--with stipends. Of the several hundred
students graduated, ten were black. This sad story can be repeated
at school after school. We are told that this is not relevant. We
think that it is.
We decline to reach for social questions beyond the Voting
Rights Act by recasting its meaning and purpose. Ultimately, we
cannot escape the steely truth that we cannot arrive at sound
answers if we fail to ask the right questions. We think that today
we have asked the correct questions and answered them as best we
can.
REVERSED
JONES, Circuit Judge, with whom JOLLY, SMITH, BARKSDALE and DeMOSS,
Circuit Judges, join in concurring in majority opinion:
Judge Higginbotham's excellent opinion resolves all but
one of the issues in dispute between the parties, and I am pleased
to concur in it as far as it goes. The single issue that I believe
should have been discussed is whether different racial or language
minority groups may be permitted to aggregate their strength in
order to pursue a Section 2 vote dilution claim. Permitting such
a black/Hispanic coalition claim was vital to plaintiffs' success
in three counties in this case. The issue was preserved for
appeal, albeit as an aside to the all-pervasive issues;43 it
43
Although the en banc majority opinion adopts the minority
coalition theory for certain aspects of its analysis, those points are not
essential to its result and simply demonstrate that the plaintiffs' own
arguments are self-contradictory.
148
furnishes an alternate ground of decision in the three counties.
I believe the en banc court should lay to rest the minority
coalition theory of vote dilution claims.44
Congress did not authorize the pursuit of Section 2 vote
dilution claims by coalitions of distinct ethnic and language
minorities. What Congress did not legislate, this court cannot
engraft onto the statute. Except in two eccentric decisions from
Texas, the coalition theory has found no factual support anywhere
else in the federal courts. The crucial problem inherent in the
minority coalition theory, articulated by Judge Higginbotham and
realized in this case, is that it transforms the Voting Rights Act
from a statute that levels the playing field for all races to one
that forcibly advances contrived interest-group coalitions of
racial or ethnic minorities.
According to customary legal analysis, there should be no
need to discuss the minority coalition theory of vote dilution
because the text of the Voting Rights Act does not support it. The
Act originally protected only black voters. When it was amended in
1975 to reach language minorities, the Act then identified four new
covered groups: persons of Spanish heritage; all American Indians;
"Asian Americans" including Chinese, Japanese, Korean and Filipino
Americans; and Alaskan natives.
42 U.S.C. § 1973
(b)(f)(1). That
44
The Supreme Court has acknowledged but not addressed the minority
coalition theory. Growe v. Emison, ___ U.S. ___,
113 S. Ct. 1075, 1085
(1993). Judge Higginbotham has twice advocated en banc consideration of this issue. See League of United Latin American Citizens v. Midland I.S.D.,812 F.2d 1494
, 1503-09 (Higginbotham, J. dissenting), aff'd in part on other grounds,829 F.2d 564
(5th Cir. 1987) (en banc); Campos v. City of Baytown, Texas,849 F.2d 943
(5th Cir. 1988) (Higginbotham, J., dissenting from denial
of rehearing en banc). In neither case, for procedural reasons, did the court
acquiesce. I endorse Judge Higginbotham's earlier writings.
149
each of these groups was separately identified indicates that
Congress considered members of each group and the group itself to
possess homogeneous characteristics. By negative inference,
Congress did not envision that each defined group might overlap
with any of the others or with blacks. See Hunter, The 1975 Voting
Rights Act and Language Minorities, 25 Cath. U.L. Rev. 250, 254-57
(1986); Katherine I. Butler and Richard Murray, Minority Vote
Dilution Suits and the Problem of Two Minority Groups: Can a
"Rainbow Coalition" Claim the Protection of the Voting Rights Act?,
21 Pac. L.J. 619
, 624-25 (1990) (hereafter, "Butler and Murray").
The 1982 amendment to Section 2, which codified the
"results" test, likewise offers no textual support for a minority
aggregation theory. It speaks only of a "class of citizens" and "a
protected class."
42 U.S.C. § 1973
(b). Had Congress chosen
explicitly to protect minority coalitions it could have done so by
defining the "results" test in terms of protected classes of
citizens. It did not.
Two arguments have been made for extending the Voting
Rights Act to minority coalitions. First, one appellate panel
stated, without citation or further reasoning, that the Act does
not prohibit such claims. Campos v. City of Baytown, Tex.,
840 F.2d 1240, 1244
(5th Cir.), reh'g denied,849 F.2d 943
(5th Cir. 1988), cert. denied,492 U.S. 905
,109 S. Ct. 3213
(1989). The Act
does not prohibit claims by minorities from the Indian subcontinent
either. But as Judge Higginbotham pointed out, this is answering
the wrong question. The proper question is whether Congress
150
intended to protect coalitions. Campos,
849 F.2d at 945
(Higginbotham, J. dissenting from denial of reh. en banc). "The
fact that both groups are protected does not justify the assumption
that a new group composed of both minorities is itself a protected
group," Butler and Murray, supra, at 647. Judge Higginbotham
explained the distinction:
In deciding to protect language minorities,
Congress recognized that language and racial
minorities share many disabilities. To
assume, however, that a group composed of both
minorities is itself a protected minority is
an unwarranted extension of congressional
intent. A group tied by overlapping political
agendas but not tied by the same statutory
disability is no more than a political
alliance or coalition.
840 F.2d at 945
.
The second argument advanced by a court that permitted a
minority coalition claim under Section 2 begs the question of
statutory construction altogether. This position asserts that
because a minority coalition may meet the three-prong Gingles test,
including the criterion of the minority group's political
cohesiveness, it may gain relief from vote dilution.45 This
argument was successful in a Texas case in which, paradoxically,
the court also acknowledged that Gingles says nothing about the
possibility of granting relief to minority group coalitions.46
45
A general citation to Thornburg v. Gingles, the Supreme Court's
decision on vote dilution, is superfluous at this point in our court's
writing.
46
Butler and Murray, supra at 642, observe that before the Midland
case, blacks and Hispanics had pursued Voting Rights Act cases together, but
they had sought separate districts or relief for each minority.
151
Previously, it had rejected a plan offered by the plaintiffs that
contained a mixed black/Hispanic district, because it found the
interests of these two minorities too divergent to justify their
submergence in one district. Nevertheless, it predicated a new,
inexplicably opposite finding on Gingles' second prong and
determined that the coalition of blacks and Hispanics was
politically cohesive. League of United Latin American Citizens v.
Midland Indep. Sch. Dist.,
648 F. Supp. 596, 606
(W.D. Tex. 1986).47
Again, Judge Higginbotham noted the court's error in purporting to
rely on Gingles:
[Gingles'] three-step inquiry assumes a group
unified by race or national origin and asks if
it is cohesive in its voting. If a minority
group lacked common race or ethnicity,
cohesion must rely primarily on shared values,
socioeconomic factors, and coalition
formation, making the group almost
indistinguishable from political minorities as
opposed to racial minorities.
Midland, 812 F.2d at 1504. Reliance on Gingles is false because
Gingles does not address the meaning of or solution to vote
dilution of a minority coalition.
47
The court's finding on political cohesiveness was supported only
by this:
. . . Blacks and Hispanics worked together and formed
coalitions when their goals were compatible.
Additionally, the bringing of this lawsuit provides
evidence that blacks and Hispanics have common
interests that induce the formation of coalitions.
Id.
Butler and Murray term "shocking" the court's reliance only on the
facts that suit has been brought jointly and that the minority groups are
willing to work together to accomplish "compatible" goals. Butler and Murray,
supra at 667.
152
A principal reason for distinguishing homogeneous,
explicitly defined minority groups from minority coalitions lies in
Section 2 itself. One may be uncertain what Congress might think
about permitting minority coalitions to assert vote dilution
claims, but Congress clearly walked a fine line in amending
Section 2 to codify the results test for vote dilution claims while
expressly prohibiting proportional representation for minority
groups. The results test of vote dilution inherently recognizes
that a minority group will sometimes fail to merit a single member
district solely because they lack the population to "constitute a
majority in a single member district." Gingles, ___ U .S. ___, 106
S. Ct. at 2766 and n.17. Permitting Section 2 claims by
opportunistic minority coalitions, however, artificially escapes
this hurdle. As a result, the remedy afforded to the coalition may
easily cross the line from protecting minorities against racial
discrimination to the prohibited, and possibly unconstitutional,
goal of mandating proportional representation.48
The tension in Section 2 between the results test and the
prohibition of proportional representation fundamentally
48
The Midland case illustrates this point. The district court
approved a "remedy"
in the form of the best available single member
district to each of the two groups, even though
neither could satisfy [Gingles'] requirements of size
and compactness. . . . Ironically, Section 2, which
specifically disavows a right to proportional
representation, was used to provide greater than
proportional representation for two groups, neither of
whom would have qualified for a seat had proportional
representation actually been the law.
Butler and Murray, supra, 667-68 (emphasis added).
153
distinguishes this case from Chisom v. Roemer, ___ U.S. ___,
111 S. Ct. 2354
(1991), in which the Supreme Court concluded that judicial
elections are covered by Section 2. Stating that certain types of
elections are within Section 2 is a definitional exercise. In
Chisom, the Court held that judicial elections, having once been
covered by the Act, remained covered following the 1982 amendment
to Section 2. But it is a remedial exercise to decide whether to
apply the results test to a minority coalition united not by race
or language but only by their desire to advance a particular
agenda. Enlarging the permissible boundaries of Section 2 relief
to encompass minority coalitions thus runs headlong into the
Section 2 prohibition of proportional representation, creating a
conflict that the Supreme Court did not face in Chisom.
If Section 2 is held to permit relief for minority
coalitions, the complications for Voting Rights Act litigation in
our increasingly multi-ethnic society will be enormous. Those
complications alone imply that Congress rather than the courts
should first address any such innovation. Certain questions should
give pause even to the advocates of minority coalitions. As Judge
Higginbotham observed, the availability of a minority coalition
theory could be a defense against an attack on an at-large system.
Campos v. City of Baytown, Texas, supra
849 F.2d at 945-46
(Higginbotham, J.). Where the combined groups comprise more than
half of a voting population in a plausible single-member district,
their "cohesion" could be used as a device to "pack" the minorities
together. Further, on what basis would a court apportion districts
154
in the wake of a successful minority coalition Section 2 suit? If
each minority is given an opportunity to prevail in a district, is
this not an admission that the coalition is ephemeral and not
really "cohesive" as Gingles requires? Is it possible that greater
racial animosity will develop if a court permits minority
aggregation on too insubstantial a basis and effectively submerges
members of one group in a district controlled by the other group?
Courts should be loath to embark upon coalition redistricting with
no expressed guidance from a statute that reflects the will of the
American people.
If, notwithstanding the absence of Congressional
authorization, minority coalitions are permitted to assert
aggregate Section 2 vote dilution claims, relief must be predicated
on more evidence of the group's homogeneity than the maintenance of
a joint lawsuit. See note 5, supra. This is so for two reasons.
As noted earlier, if a fortuitous coalition of minorities can gain
Section 2 relief on tenuous proof of cohesion, the courts will have
effectively undone Congress's explicit disapproval of proportional
representation. The less cohesive the groups truly are, the more
likely relief has been fashioned only because of the groups' joint
minority status. Second, there is risk to members of the minority
groups themselves if their electoral fates are joined even though
they do not share fundamentally similar social and political goals.
To be sure, the problem of determining minority political
cohesiveness under Gingles may be difficult even when the claims of
155
one minority group are at issue.49 But it should be self-evident
that the problem is compounded when different minority groups, with
radically different cultural and language backgrounds,
socioeconomic characteristics and experiences of discrimination
seek Section 2 coalition status. Forcibly merging fundamentally
different groups for the purpose of providing "minority"
representation could be a cruel hoax upon those who are not
cohesive with self-styled minority spokesmen.
The difficulty of proving vote dilution on behalf of
coalitions of minorities has been vividly realized in practice.
Except in the Midland and Campos cases, there appear to be no
reported decisions in which sufficient proof of the minority
coalition theory was adduced to justify Section 2 relief. The
theory has been litigated all over the country, but it has
repeatedly been rejected on factual grounds. See Concerned
Citizens of Hardee County v. Hardee County Bd. of Commissioners,
906 F.2d 524
(11th Cir. 1990); Latino Political Action Committee v. City of Boston,609 F. Supp. 739, 744
(D.C. Mass. 1985) aff'd,784 F.2d 409
(1st Cir. 1986); Butts v. City of New York,614 F. Supp. 1527, 1546
(D.C. N.Y. 1985), reversed on other grounds,779 F.2d 141
(2d Cir. 1985), cert. denied,478 U.S. 1021
,106 S. Ct. 3335
; Badillo v. City of Stockton,956 F.2d 884, 886
(9th Cir. 1992); Romero v. City of Pomona,665 F. Supp. 853, 859
(D.C. Cal. 1987), aff'd,883 F.2d 1418
(9th Cir. 1989). See also Nixon v. Kent
49
See, e.g., Butler and Murray, 651-57, 674-87, describing the
diverse socioeconomic and ethnic qualities among our Hispanic population.
156
County, Michigan,
790 F. Supp. 738
(W.D. Mich. 1992) in which Judge Enslen, author of a well-known constitutional law treatise, thoughtfully concluded that the only proper test for minority aggregation is whether two minority groups "are indeed one."790 F. Supp at 743
.50 Even in Texas, before this case, the success of the Midland and Campos plaintiffs was unique. See Overton v. City of Austin, unpublished, 1987, aff'd,871 F.2d 529
(5th Cir. 1989)
(rejecting black/Hispanic coalition case in part because evidence
showed that each group voted for candidates of their own race but
not for candidates of the other race.)
What this string of defeats suggests, if not the utter
bankruptcy of Section 2 minority coalition claims, is at least
their factual complexity. Once the courts plunge into the business
of apportioning representation among racial or ethnic coalitions,
a host of difficult and potentially divisive social questions rear
their heads. A finding of political cohesiveness should require
such coalitions to prove, at the very minimum, not only that they
50
The court in Nixon looked to the following factors, gleaned from
the definition of minority group:
(1) Whether the members have similar socioeconomic
backgrounds resulting in common social disabilities
and exclusion;
(2) whether members have similar attitudes toward
significant issues affecting the challenged entity;
(3) whether members have consistently voted for the
same candidates; and
(4) whether the minorities consider themselves "one"
even in situations in which they would benefit
independently.
Nixon at
790 F. Supp. 744
.
157
usually vote for the preferred candidates of their own ethnic group
but also for those of the coalition group -- otherwise, the groups
cannot be politically cohesive. Not only do most of the above-
cited decisions case doubt on such a proposition, but considerable
sociological literature also demonstrates "social distance" between
minority groups that seems inconsistent with widespread coalition
minority political cohesion.51
The second panel opinion in this Lulac case concedes that
the procedure of allowing Blacks and Hispanics
to proceed as a "coalition" minority group in
a Section 2 claim is fraught with risks.
Lulac II,
986 F.2d 785, n.43
. Ironically, while citing the Butler
and Murray article to which I have referred, the panel makes no use
of its cautionary data or its conclusion:
Proponents of coalition dilution suits
argue that minority groups are natural allies
because of their shared exclusion from the
dominant society, and their similar lower
socioeconomic status, which, proponents
maintain, is a product of past discrimination.
Despite the simplistic logic of this position,
it does not comport with the reality revealed
by social science studies. Those studies
suggest just the opposite. The rarity of
documented political alliances between
minority groups is the natural consequence of
differences in their attitudes and
perceptions. Studies indicate that minorities
in fact identify more closely with the
dominant group than with other minorities.
Moreover, perceptions of discrimination vary
widely among groups. Blacks, for example, are
51
See, e.g., Dyer, Dedlitz and Worochel, Social Distance Among
Racial and Ethnic Groups in Texas, Some Demographic Correlates, 70 Social
Science Quarterly 607, 613-14 (1989); Donald L. Horowitz, "Conflict and
Accommodation: Mexican Americans Need Cosmopolis" in Mexican Americans in
Comparative Perspective 58, 84-92 (1985) See also Butler and Murray, supra
n.7.
158
much more likely than Mexican Americans to
perceive themselves to be victims of
discrimination. Still other studies suggest
that the underlying causes of lowered
socioeconomic status differ among minority
groups. Different root causes of poverty are
likely to lead to different, possibly even
conflicting, demands on the government.
Butler and Murray, supra, 688-89. Butler and Murray contend that
because of these differences, minority coalitions "very seldom"
ought to be able to prove vote dilution under Section 2. Butler
and Murray, supra at 687. The short answer to plaintiffs' joint
Section 2 claims in Lubbock, Ector and Midland Counties is that
they did not meet their burden of proof that blacks and Hispanics
are sufficiently like a single minority group to entitle the
coalition to one judicial district in each county.
Conclusion
The Congressional compromise that resulted in the passage
of Section 2 left the field of voting rights wide open to courts in
many respects. Congress did not, however, contemplate or authorize
relief for coalitions of racial and language minority groups. For
the courts to provide such relief, in my view, judicially amends
the Act and flies in the face of the express prohibition of
proportional representation in Section 2. At the very least, only
under very convincing proof of a minority coalition's sociological
similarities and goals as well as its political cohesion can such
a claim be made. In this case, plaintiffs have not carried their
burden of proof concerning Lubbock, Midland or Ector Counties. Our
court's previous decisions in Midland and Campos must be overruled.
159
With these additional observations, I concur in the majority
opinion.
POLITZ, Chief Judge, with whom JOHNSON, KING and WIENER, Circuit
Judges, join, dissenting:
I respectfully dissent. The parties have moved for remand of
this action to the district court for consideration of a proposed
settlement. Remarkably, the majority denies that motion despite
the fact that our jurisprudence long has favored settlement as the
preferred mode of dispute resolution,52 permitting avoidance of
unnecessary monetary and emotional costs and the risks attendant in
all litigation.53 We have long recognized that the parties to an
action "have a right to compromise their dispute on mutually
agreeable terms."54 There is nothing about this action against the
52
Williams v. First Nat'l Bank,
216 U.S. 582, 595
(1910); see also, e.g., Carson v. American Brands, Inc.,450 U.S. 79
, 86- 88 (1981) (potential loss by parties of opportunity to settle constitutes "serious, perhaps irreparable, consequence" of district court's refusal to enter consent decree making such ruling immediately appealable); Bass v. Phoenix Seadrill/78, Ltd.,749 F.2d 1154
(5th Cir. 1985); In re Chicken Antitrust Litigation,669 F.2d 228
(5th Cir. Unit B March 1982); United States v. City of Alexandria,614 F.2d 1358
(5th Cir. 1980); cf.
Fed. R. Civ. P. 68 (recipient of settlement offer must pay costs
incurred after receipt where judgment ultimately obtained is not
as good as offer); Fed. R. Evid. 408 (evidence of good faith
settlement negotiation inadmissible as proof of liability or
claim value at trial).
53
Local No. 93, Int'l Ass'n of Firefighters v. City of
Cleveland,
478 U.S. 501, 528-29
(1986); United States v. City of Miami,664 F.2d 435, 439
(5th Cir. 1981) (citing United States v. Armour & Co.,402 U.S. 673
(1971)) (en banc) (plurality opinion).
54
City of Miami,
664 F.2d at 440
.
160
State of Texas that would warrant abrogation of that well-
established rubric.55 The Governor and Attorney General, joined by
a majority of both houses of the Texas Legislature, have made
manifest their desire to compromise this action. In its headlong
rush to reach the merits, the majority suggests no persuasive, much
less compelling, reason for the jettisoning of the preferred manner
of dispute resolution. I would grant the motion to remand.
Stripped to essentials, the majority asserts that Attorney
General Morales lacks authority to settle this matter on behalf of
the State because of the opposition by Chief Justice Phillips and
Judges Entz and Wood. I find this nothing short of incredible.
This action challenges the scheme for election of district judges
in Texas. The real party in interest herein is the State of
Texas.56 As its chief legal officer, the Attorney General "has
broad discretionary power in conducting his legal duty and
responsibility to represent the State,"57 including authority to
propose and execute settlement agreements in reapportionment
55
See Chisom v. Edwards,
970 F.2d 1408
(5th Cir. 1992)
(granting joint motion to remand to effectuate settlement in
Louisiana voting rights case).
56
The State is the real party in interest in an action
against one of its officials in her official capacity. Will v.
Michigan Dep't of State Police,
491 U.S. 58, 71
(1989); Kentucky v. Graham,473 U.S. 159, 165-66
(1985). The plaintiffs here
named as defendants the Governor of Texas, the Attorney General,
the Secretary of State, and the Chief Justice of the Supreme
Court as chair of the Judicial Districts Board, all in their
official capacities. In short, the plaintiffs have sued the
State of Texas.
57
Terrazas v. Ramirez,
829 S.W.2d 712, 721
(Tex. 1991)
(citing Tex. Const. art. 4, § 22; Tex. Gov't Code § 402.021;
further citations omitted).
cases.58 That is what the Attorney General seeks to do in this
case.59 The Attorney General has the active assent of the Governor,
Lieutenant Governor, and a majority of both houses of the Texas
Legislature. Pray tell, what more do we need to accept the
proposed settlement as being made on behalf of the State of Texas?
That Chief Justice Phillips has voiced an objection does not
alter the certainty that the State of Texas, through its authorized
spokesman, wishes to settle this matter. As chairman of the
Judicial Districts Board, Chief Justice Phillips has a measure of
authority over judicial apportionments. We cannot ignore, however,
that the Board's authority in this area SQ and hence that of the
Chief Justice SQ is entirely subject to the will of a majority of
58
Terrazas,
829 S.W.2d at 722
;id. at 747
(Mauzy, J.,
dissenting) (at least seven justices agree that "[t]he attorney
general is constitutionally empowered to execute a settlement
agreement in litigation challenging a legislative redistricting
plan.").
59
The majority also makes much of the fact that the consent
decree allows the State of Texas to take actions which would
otherwise be prohibited by state law. I do not think that
consideration of the merits of the proposed consent decree is
appropriate at this juncture. We are a court of errors; the
district court should have an opportunity to conduct a hearing
and determine whether to enter the consent decree before we
decide the merits of such action.
I further note that although courts generally must defer to
state apportionment policy in fashioning the remedy for a
violation of Section 2, district courts have equitable power to
depart from state law if necessary. See, e.g., White v. Weiser,
412 U.S. 783, 797
(1983) (Constitution and Voting Rights Act limit judicial deference to state apportionment policy). If the court ultimately concludes that there is a reasonable factual and legal basis for finding such a violation, see City of Miami,664 F.2d at 441
, the exercise of such powers by way of a consent
decree may be appropriate.
162
the legislature60 which has, albeit in a nonbinding fashion, agreed
to the proposed settlement.61 Further, the status of the Chief
Justice in the Texas judiciary does not carry with it the authority
to speak ex cathedra for the state on policy matters affecting the
judiciary which are unrelated to the decisions of specific cases.62
60
See Tex. Const. art. 5, § 7a(h) ("Any judicial
reapportionment order adopted by the board must be approved by a
record vote of the majority of the membership of both the senate
and house of representatives before such order can become
effective and binding.").
61
Chief Justice Phillips's limited authority in this area
distinguishes the case at bar from Baker v. Wade,
769 F.2d 289
(5th Cir. 1985) (en banc), heavily relied upon by the majority.
Unlike the district attorney in that case, who enjoyed specific
authority under state law to represent the state and bring
prosecutions under the statute there at issue, Chief Justice
Phillips enjoys neither independent authority over judicial
apportionment nor express authority to represent the state.
62
This proposition applies equally to Judges Entz and Wood.
Further, because the proposed consent decree will not affect
their constituencies, Judges Entz and Wood do not gain standing
to challenge the consent decree because of their status as office
holders. City of Cleveland,
478 U.S. at 528-29
; City of Miami,664 F.2d at 447
("the parties to litigation are not to be
deprived of the opportunity to compose their differences by
objections that find no basis in prejudice to the objector").
Finally, the majority opines that the status of Judges Entz and
Wood as voters in Harris County somehow clothes them with
authority to block a settlement favored by competent state
authorities. While the district courts certainly should permit
input from such intervenors when considering entry of a consent
decree, to accord them what amounts to a veto, as the majority
does, would effectively preclude settlement of any Section 2
litigation SQ an absurd and unconscionable result which I refuse
to embrace. See City of Cleveland,
478 U.S. at 529
("[W]hile an
intervenor is entitled to present evidence and have its
objections heard at the hearings on whether to approve a consent
decree, it does not have power to block the decree merely by
withholding its consent."). Extending the majority's analysis
would result in any voter being able to block settlement of any
suit against the state or one of its subdivisions. That simply
cannot be. See Apache Bend Apts. v. United States,
987 F.2d 1174
(5th Cir. 1993) (en banc).
163
That the plaintiffs, probably out of an abundance of caution,
joined the Chief Justice as a defendant in this action should not
preclude settlement. No one may seriously suggest that this voting
rights case could not have progressed to a definitive conclusion
without the presence of the Chief Justice. The awesome decision to
deny parties an opportunity to compromise and settle their case,
much less a case as important as that here presented, must be based
on a much more solid, indeed a compelling basis.
I would remand this case to the district court for
consideration of the proposed consent decree.
KING, Circuit Judge, with whom, POLITZ, Chief Judge, and JOHNSON,
Circuit Judge, join, dissenting:
The majority ably accomplishes what it set out to do in this
case: reach the merits of this appeal so that it can overhaul the
Voting Rights Act. Indeed, from its initial decision to deny the
motion to remand filed by the Plaintiffs and the State of Texas, to
its decision to reverse the district court's judgment in each of
the nine target counties, the majority proceeds with a kind of
determination not often seen in a judicial opinion. Like Chief
Judge Politz, I believe that the parties should be given the
opportunity to settle this case. I also believe that fidelity to
the Voting Rights Act requires us to affirm the district court's
judgment in eight of the nine target counties. Accordingly, I
respectfully dissent.
The majority's decision to deny the motion to remand, even
standing alone, is indefensible. It demonstrates a lack of
164
judicial restraint and sets a bad precedent. Under the majority's
reasoning, states and political subdivisions embroiled in section
2 lawsuits must now defend their electoral practices to the bitter
end--unless those practices can be changed in accordance with state
law and everyone who is even remotely connected with the lawsuit
agrees to the proposed changes. Because these circumstances are
unlikely to occur, the majority has effectively ensured that
section 2 cases will rarely, if ever, be settled.
In light of the majority's seriously flawed decision on the
merits of this case, however, its decision to deny the motion to
remand becomes even more indefensible. In my view, the majority's
discussion of the merits--complete with a declaration that blacks
and Hispanics are just two more interest groups and a conclusion
that blacks and Hispanics are overrepresented on the Texas district
court bench--perhaps provides the best argument against its
decision to deny the parties' motion to remand this case for a
settlement hearing. In fact, it is only after reading the
majority's decision on the merits that one can truly understand why
it denied the motion to remand. For that reason, I begin with the
merits.
I. THE MERITS
In reversing the district court's judgment, the majority
ultimately concludes that the evidence of vote dilution in this
case is "marginal"--too marginal to outweigh the State of Texas'
substantial interests in maintaining the current system. I
165
disagree with this conclusion on two fronts. First, I reject the
majority's assertion that the evidence of vote dilution in this
case is weak. Under the established analytical framework for
assessing section 2 claims, the Plaintiffs' evidence of vote
dilution is anything but weak; indeed, it is only by changing the
rules that the majority can so characterize the evidence in this
case. I also disagree with the majority's determination that the
State of Texas' interests in maintaining its current at-large
election system are substantial. In my view, these interests are
little more than tenuous and therefore could not outweigh even
"marginal" evidence of vote dilution.
A. The Plaintiffs' Evidence of Vote Dilution: Overhauling a
Congressional Statute
As explained in my earlier opinion, the evidence of vote
dilution in this case is substantial. See League of United Latin
American Citizens, Council No. 4434 v. Clements,
986 F.2d 728
, 776-
803 (5th Cir. 1993) (LULAC III).63 Had this case been decided
before today, the evidence in eight of the nine target counties
would have pointed unerringly towards a finding of vote dilution.
This evidence includes: a geographically compact and politically
cohesive minority group; a white bloc vote that is usually
sufficient to defeat the combined strength of minority and white
crossover votes; a history of official discrimination against the
63
The panel majority opinion contains a fuller discussion
of many of the issues addressed in this dissent. I have tried to
avoid an overly long dissent in the hope that the reader will
refer to the earlier opinion for a more complete treatment of the
issues.
166
minority group; the lingering socioeconomic effects of
discrimination against the minority group; structural mechanisms,
including giant election districts, that tend to enhance the
dilutive nature of at-large election schemes; and an appalling lack
of minority representation on the district court bench.
After today, such evidence will be only "weak" evidence of
vote dilution. This is because the majority has changed the
analytical framework for analyzing vote dilution claims. Along the
way, the majority has distorted Congressional intent, rejected
Supreme Court precedent, and completely altered the focus of the
section 2 inquiry. As a result of the majority's handiwork, the
section 2 inquiry is no longer a blended one which looks to the
"past and present reality" of the local political landscape. See
S. REP. No. 417, 97th Cong., 2d Sess., at 30 (1982), reprinted in
1982 U.S.C.C.A.N. 177, 208 [hereinafter S. REP.]. Rather, it is
one that looks only at the present, although paradoxically, not at
reality.
1. Altering the Racial Bloc Voting Inquiries
The most glaring example of the majority's efforts to reshape
the section 2 inquiry is its redefinition of two closely-related
terms--namely, "legally significant white bloc voting" under the
threshold inquiry of Thornburg v. Gingles,
478 U.S. 30
(1986), and
"racially polarized voting" under the totality of circumstances
inquiry. Before today, these terms have been widely understood by
lower courts, as well as by the Supreme Court, to have a
descriptive meaning--a meaning that is completely in accord with
167
section 2's focus on results. The majority, choosing to ignore
this wide consensus, acts as if it is writing on a clean slate.
That is, the majority acts as if Congress and the Supreme Court
have not spoken on these issues. Because I refuse to put on such
blinders, I cannot join the majority's decision to reformulate
these terms.
a. The majority's version of racial bloc voting
The majority's formulation of "legally significant white bloc
voting" under the Gingles threshold inquiry, as well as its view of
racially polarized or racial bloc voting under the totality of
circumstances inquiry, is confusing--to say the least. The
majority spends some thirty pages at the front of its opinion
explaining what these two closely related terms require; yet at the
end of the section entitled "Racial Bloc Voting," all the reader
knows is that more is required than showing (a) with regard to
legally significant white bloc voting, that minority-preferred
candidates are consistently defeated by a white majority, and (b)
for racially polarized voting, that minorities and whites vote
differently. What more is required the majority does not expressly
say.
Make no mistake about the majority opinion in this regard: it
does redefine the terms of legally significant white bloc voting
and racially polarized voting. To understand exactly what the
majority "holds" with respect to these two terms, however, one must
first go back to earlier opinions by Judge Higginbotham and then
read the majority's county-by-county analysis in this opinion. It
168
is only then that the majority's holding becomes comprehensible.
Specifically, the majority holds that to establish legally
significant white bloc voting and racially polarized voting,
minority plaintiffs must, at the very least, negate partisan
politics as an explanatory factor for the consistent defeat of
their preferred candidates. The majority further implies--without
deciding the issue--that minority plaintiffs may have to
affirmatively prove racial animus in the electorate to meet their
burden with respect to legally significant white bloc voting and
racially polarized voting.
The starting point for understanding the majority's vague
approach to the racial bloc voting inquiries is Judge
Higginbotham's opinion in Jones v. City of Lubbock,
730 F.2d 233
(5th Cir. 1984) (Higginbotham, J., specially concurring from denial
of rehearing). This is where he first suggested that racial bloc
voting requires a showing of racial animus in the electorate. He
asserted:
The [racial bloc voting] inquiry is whether race or
ethnicity was such a determinant of voting preference in
the rejection of black or brown candidates by a white
majority that the at-large district, with its components,
denied minority voters effective voting opportunity.
Id. at 234
. Judge Higginbotham further questioned whether racial
bloc voting could be demonstrated without the use of a multivariate
regression analysis, which, he argued, would eliminate other
possible causes of voting behavior--such as campaign expenditures,
party identification, income, media use measured by cost, religion,
169
name identification, or distance that a candidate lived from any
particular precinct. See
id. at 234-35
.
The racial animus theme was also present, albeit to a lesser
extent, in Judge Higginbotham's earlier dissenting opinion in this
case, where he strongly disagreed with the panel majority's
definition of legally significant white bloc voting and racially
polarized voting. In particular, he stated that the "consistent
defeat" of minority-preferred candidates could not be "on account
of race or color," as required by section 2, unless it is tied to
"racial bias in the electorate." LULAC III,
986 F.2d at 846
(Higginbotham, J., dissenting). This, he further stated, "is the heart of section 2." Id.; see alsoid. at 831
("[T]he extent to
which voting patterns are attributable to causes other than race is
an integral part of the inquiry into racial bloc voting . . . .").
It was also in this dissent, however, that Judge Higginbotham
first advocated placing on plaintiffs the burden of "negating
partisan politics" in order to show legally significant white bloc
voting and racially polarized voting. That is, he appeared to
retreat from his earlier, more rigid position of requiring minority
plaintiffs to affirmatively establish racial animus in the
electorate and instead described the plaintiffs' burden as one of
negating partisan politics. See LULAC III,
986 F.2d at 834
. At that point, he was willing to limit the "inquiry into racial bloc voting to determining whether divergent voting patterns are caused by partisan differences." Id.; see alsoid. at 845
("Proof of
majority voting based on party affiliation prevents the showing of
170
bloc voting required by Gingles."). Thus, Judge Higginbotham's
earlier position in this case was that, where the evidence "shows
that divergent voting patterns among white and minority voters are
best explained by partisan affiliation, . . . plaintiffs have
failed to establish racial bloc voting."
Id. at 833-34
. In short, he would have required minority plaintiffs to show that the consistent defeat of their preferred candidates was not "readily attributable to partisan affiliation."Id. at 834
.
There are still vestiges of Judge Higginbotham's earlier
positions in the majority opinion, although in the front of the
opinion they are only expressed as "powerful arguments." The
majority asserts, on the one hand, that it "need not hold that
plaintiffs must supply conclusive proof that a minority group's
failure to elect representatives of its choice is caused by racial
animus in the electorate in order to decide that the district
court's judgment must be reversed." Majority Opinion at 57-58. It
notes, however, that a racial animus requirement could readily be
inferred from the text and legislative history of section 2, as
well as Supreme Court precedent. See id. at 58. The majority also
asserts that there is "a powerful argument supporting a rule that
plaintiffs[,] to establish legally significant racial bloc
voting[,] must prove that their failure to elect representatives of
their choice cannot be characterized as a `mere euphemism for
political defeat at the polls.'" Id. at 58-59. In this regard,
the majority explains that "[d]escribing plaintiffs' burden in
terms of negating `partisan politics' rather than affirmatively
171
proving `racial animus' would not be simply a matter of
nomenclature." Id. at 59. It notes: "A rule conditioning relief
under § 2 upon proof of the existence of racial animus in the
electorate would require plaintiffs to establish the absence of not
only partisan voting, but also all other potentially innocent
explanations for white voters' rejection of minority-preferred
candidates." Id.
Ultimately, however, the majority purports not to resolve the
debate between Judge Higginbotham's two earlier positions. Whether
the plaintiffs' burden of proving bloc voting includes the burden
of demonstrating racial animus in the electorate, or only the
burden of negating partisan politics, we are told, "the result is
the same." Id. at 61. The district court's judgment must be
reversed, according to the majority, "[b]ecause the evidence in
most instances unmistakably shows that divergent voting patterns
among white and minority voters are best explained by partisan
affiliation"--thus leaving the Plaintiffs unable to "establish
racial bloc voting." See id. at 64.
That the majority has reformulated the concepts of legally
significant white bloc voting and racially polarized voting becomes
crystal clear in its application of the law to each county. In
Dallas County, for example, the majority holds that the plaintiffs
have not satisfied the third Gingles threshold requirement. It
reasons:
The evidence in Dallas County clearly establishes
that judicial elections are decided on the basis of
partisan voting patterns. We are left with the
inescapable conclusion that plaintiffs have failed to
172
prove that minority-preferred judicial candidates in this
county are consistently defeated by racial bloc voting.
This is a failure to meet the threshold showing required
by Gingles.
Id. at 106-07. The majority makes similarly explicit holdings in
Midland, Lubbock, and Ector counties. See id. at 141-42 (holding
that, because partisan affiliation, not race, caused the defeat of
the minority-preferred candidate in Midland County elections,
"[t]he plaintiffs have not established the third prerequisite of
Gingles."); id. at 144 (concluding that plaintiffs have not met the
third Gingles factor because the evidence establishes that the
voting patterns in Lubbock County resulted from party loyalty, not
race); id. 145-46 ("Plaintiffs have failed to meet the third
prerequisite of Gingles" because the "undisputed facts indicate
that partisan affiliation controlled the outcomes of the general
elections."). Moreover, in Harris and Bexar counties, the majority
strongly suggests that, because election outcomes appeared to
result from partisan politics, the Plaintiffs could not establish
legally significant white bloc voting.64
64
In reversing the district court's findings of legally
significant white bloc voting in the various counties, the
majority relies on trivariate regression analyses submitted by
the State of Texas and Judge Wood in this case--analyses which
unquestionably demonstrated that a candidate's partisan
affiliation was a better predictor of electoral success than a
candidate's race. The majority does not remand this case to the
district court for consideration of the statistics under the new
legal standards for racial bloc voting--as might be expected
under Pullman-Standard v. Swint,
456 U.S. 273, 292
(1982) (where
district court's factual finding is based upon a misapprehension
of law, "a remand is the proper course unless the record permits
only one resolution of the factual issue"). Rather, the majority
concludes that the voting statistics in this case are capable of
only one interpretation--an interpretation that is severely
flawed. See infra Part I.A.1.b(ii).
173
Thus, although the majority's "holding" with respect to
legally significant white bloc voting and racially polarized voting
is confused and elusive--a paradigm of "fluidity and fixity," see
Majority Opinion at 56--it is nonetheless a holding: Minority
plaintiffs must now establish, at a minimum, that the racially
divergent voting which consistently defeats their preferred
candidates is not the result of partisan politics. Moreover, the
majority hints that the plaintiffs' burden in this regard may even
be higher. That is, minority plaintiffs may have to demonstrate
that racially divergent voting patterns are due to racial animus in
the electorate in order to meet their burden under the legally
significant white bloc voting and racially polarized voting
inquiries.
b. Problems with the majority's version of racial bloc
voting
There are grave problems with the majority's approach(es) to
legally significant white bloc voting and racially polarized
voting. From a purely legal perspective, the majority's
reformulation of the terms simply cannot be supported. The
majority's approach is also flawed from a social science
perspective. More importantly, however, the reformulation of these
terms essentially eviscerates section 2 of the Voting Rights Act--
at least in the context of partisan elections.
(i) Legal problems
The majority asserts that its definitions of legally
significant white bloc voting and racially polarized voting are
174
required by the language and legislative history of section 2, as
well as Supreme Court precedent. I disagree.
This being a question of statutory interpretation, I turn
first to the language of section 2. That section provides, in
pertinent part:
(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
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 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 in numbers equal to their
proportion in the population.
42 U.S.C. § 1973
.
The language of this section does not, under a straightforward
reading, require minority plaintiffs to "negate partisan politics"
or demonstrate current racial animus in the electorate. The words
"partisan politics" appear nowhere in the language of section 2.
And although subsection (a) does require a link--a critical link--
between the denial or abridgment of the right to vote and "race or
color," there is no indication that Congress used the phrase "on
175
account of race or color" to require proof of either the absence of
partisan politics or the presence of racial animus in the
electorate. In fact, Congress emphasized that it used the phrase
"`on account of race or color' to mean `with respect to race or
color,' and not to connote any required purpose of racial
discrimination." S. REP. at 27-28 n.109, 1982 U.S.C.C.A.N. at 205-
06 n.109.
Nor does the legislative history accompanying the 1982
amendments to section 2 offer any real support for the majority's
new definition of legally significant white bloc voting and
racially polarized voting. In a bit of fancy footwork, the
majority asserts that, pursuant to the Senate Report accompanying
the amended section 2, racial bloc voting is established when "race
is the predominant determinant of political preference." Majority
Opinion at 48. The Senate Report says no such thing. It states
that, in considering the totality of the circumstances, courts
should examine "the extent to which voting in the elections of the
state or political subdivision is racially polarized." S. REP. at
29, 1982 U.S.C.C.A.N. at 206. Several pages later, in a section
entitled "Responses to Questions Raised About the Results Test,"
the Senate Report reads:
The Subcommittee Report claims that the results test
assumes "that race is the predominant determinant of
political preference." The Subcommittee Report notes
that in many cases racial bloc voting is not so
monolithic, and that minority voters do receive
substantial support from white voters.
That statement is correct, but misses the point. It
is true with respect to most communities, and in those
communities, it would be exceedingly difficult for
plaintiffs to show that they were effectively excluded
176
from fair access to the political process under the
results test.
Unfortunately, however, there still are some
communities in our Nation where racial politics do
dominate the electoral process.
In the context of such racial bloc voting, and other
factors, a particular election method can deny minority
voters equal opportunity to participate meaningfully in
elections.
Id. at 33
, U.S.C.C.A.N. at 211. This passage, from which the
majority lifts its definition of racial bloc voting, simply does
not define the term. If anything, the reference to the statement
"that in many cases racial bloc voting is not so monolithic, and
that minority voters do receive substantial support from white
voters" reinforces my view that the racial bloc voting inquiry
looks only at the extent to which minorities and whites vote
differently. See infra Part I.A.1.c.
Even more incredible, however, is the majority's assertion
that the Supreme Court's definition of legally significant white
bloc voting, as set forth in Justice Brennan's opinion in Gingles,
is still open to question. Five Justices joined the part of
Justice Brennan's opinion laying out the Gingles threshold
requirements--including the requirement that minority plaintiffs
"must be able to demonstrate that the white majority votes
sufficiently as a bloc to enable it . . . usually to defeat the
minority's preferred candidate." 478 U.S. at 51. Moreover,
contrary to the majority's assertions otherwise, five Justices also
joined in Part III.B.2. of Justice Brennan's opinion, where he
defined legally significant white bloc voting as "a white bloc vote
177
that normally will defeat the combined strength of minority support
plus white `crossover' votes." Id. at 56.
Although there was some disagreement over the appropriate
framework for analyzing section 2 claims at the time Gingles was
decided--specifically, from Justice O'Connor--recent Supreme Court
cases confirm that the threshold test announced in Justice
Brennan's majority opinion still controls. In Voinovich v.
Quilter,
113 S. Ct. 1149, 1157
(1993), Justice O'Connor, writing
for a unanimous Court, stated:
In Thornburg v.
Gingles, supra,
this Court held that
plaintiffs claiming vote dilution must prove three
threshold conditions. First, they must show that the
minority group is sufficiently large and geographically
compact to constitute a majority in a single-member
district. Second, they must prove that the minority
group is politically cohesive. Third, the plaintiffs
must establish that the white majority votes sufficiently
as a bloc to enable it . . . usually to defeat the
minority's preferred candidate.
(emphasis added) (internal quotations omitted) (ellipsis in
original). The Court similarly embraced the Gingles threshold
test, as formulated by Justice Brennan, in Growe v. Emison,
113 S. Ct. 1075, 1084
(1993), another unanimous opinion.
Thus, when the majority reformulates the third Gingles
threshold factor and requires minority plaintiffs to negate the
existence of partisan politics (or possibly to prove racial animus
in the electorate), it does so in the face of binding Supreme Court
precedent. Moreover, even assuming that Gingles did not decide the
question of what constitutes legally significant white bloc voting
and racially polarized voting, I still cannot agree with the
majority's rendition of the various opinions in the case.
178
The primary disagreement in Gingles concerned Justice
Brennan's statement that "the reasons black and white voters vote
differently have no relevance to the central section 2 inquiry."
478 U.S. at 63 (emphasis added). Justice O'Connor, writing for
three other Justices, disagreed. She rejected Justice Brennan's
assertion that explanations for racially divergent voting patterns
"can never affect the overall vote dilution inquiry," id. at 100
(emphasis added), and cited two examples of how such explanations
might affect it. First, she noted:
Evidence that a candidate preferred by the minority group
in a particular election was rejected by white voters for
reasons other than those which made that candidate the
preferred choice of the minority group would seem clearly
relevant in answering the question whether bloc voting by
white voters will consistently defeat minority
candidates.
Id. (emphasis added). She also believed that "Congress intended
that explanations of the reasons why white voters rejected minority
candidates would be probative of the likelihood that candidates
elected without minority support would be willing to take the
minority interests into account." Id. Contrary to the majority's
assertions, however, Justice O'Connor did not "maintain[] that
evidence that white and minority voters generally supported
different candidates did not constitute legally significant racial
bloc voting where these patterns were attributable to partisan
affiliation rather than the race of the candidate." Majority
Opinion at 51. On this issue, she stated:
Insofar as statistical evidence of divergent racial
voting patterns is admitted solely to establish that the
minority group is politically cohesive and to assess its
prospects for electoral success, I agree that defendants
179
cannot rebut this showing by offering evidence that
divergent racial voting patterns may be explained in part
by causes other than race.
Gingles,
478 U.S. at 100
(emphasis added). This statement suggests
that evidence that divergent voting patterns are explained in part
by partisan affiliation will not preclude a finding of legally
significant white bloc voting--a finding which bears directly on
the minority group's "prospects for electoral success."65
The secondary disagreement in Gingles concerned Justice
Brennan's statement that "the race of the candidate per se is
irrelevant to racial bloc voting analysis." 478 U.S. at 67.
Justice White disagreed with this statement, as did Justice
O'Connor. Specifically, they both argued that the race of the
candidate is relevant to the racial bloc voting inquiry. See id.
at 83, 101. That the race of the candidate is relevant to the
racial bloc voting inquiry, however, does not translate to a
requirement that minority plaintiffs must negate partisan politics
65
The majority suggests that evidence that racially
divergent voting patterns are attributable to partisan
affiliation or perceived interests is "quite probative" on the
question of whether white bloc voting will consistently defeat
minority-preferred candidates. Majority Opinion at 57 n.26. I
strongly disagree. If the "perceived interests" of minority
voters lead them to vote for candidates of one political party,
while the interests of a majority of whites lead them to vote for
candidates of a different party, this would seem to strengthen,
not weaken, the consistency with which the two racial groups
would vote differently. That election results appear to be
attributable to voting along party lines, then, does not suggest
that other candidates, "equally preferred by the minority group,
might be able to attract greater white support in future
elections." In short, it does nothing to undercut--and may even
strengthen--the consistency with which minority-preferred
candidates are defeated.
180
or prove racial animus in the electorate in order to demonstrate
polarized voting.
Finally, I must say a few words about the Supreme Court's
decision in Whitcomb v. Chavis,
403 U.S. 124
(1971), upon which the
majority places heavy reliance. The outcome in that case--i.e.,
the Supreme Court's reversal of the district court's vote dilution
finding--did not, in my view or in Congress' view, turn on the
absence of racial bloc voting. Rather, as Congress indicated in
the Senate Report accompanying the 1982 amendments to section 2,
the district court's error in Whitcomb was finding vote dilution
"on the basis of proof that black ghetto residents with dist[inct]
legislative interests had been consistently underrepresented in the
legislature in comparison with their proportion of the population."
S. REP. at 20, 1982 U.S.C.C.A.N. at 198; see also id. at 23, 1982
U.S.C.C.A.N. at 200 ("Whitcomb . . . recognized that, in order to
prevail, plaintiffs had to prove more than that minority members
had not elected legislators in proportion to their percentage of
the population."). Also significant to the outcome in Whitcomb, in
Congress' view, was the fact that nine blacks had won at-large
elections in the time period studied in Whitcomb. See id. at 21,
1982 U.S.C.C.A.N. at 198.66 Significantly, Congress never
66
The Department of Justice (DOJ) argues persuasively in
its en banc brief that the real issue in Whitcomb was not whether
blacks in Marion County generally were denied an opportunity to
elect their chosen candidates, but whether ghetto blacks were
being denied such an opportunity. DOJ points specifically to
evidence suggesting that "black voters in a middle-class black
area were able to elect candidates from their area even when
Republicans were winning generally." See Whitcomb,
403 U.S. at 133
, 150 n.29 (noting that census tract 220, inhabited
181
interpreted Whitcomb to require minority plaintiffs to prove that
the consistent defeat of their preferred candidates is not the
result of partisan politics. As explained more fully in my earlier
opinion, Whitcomb stands for the proposition that where there is
evidence of partisan voting or interest group politics and no
evidence that members of the minority group have an unequal
opportunity to participate in the political process on account of
race or color, the minority group's vote dilution claim will fail.
See LULAC III,
986 F.2d at 808-10
.
(ii) Social science problems
Even without the legal problems inherent in the majority's
approach to legally significant white bloc voting and racially
polarized voting, the majority's approach is severely flawed from
a social science perspective. Regardless of whether the majority
requires a multivariate regression analysis, which would seek to
eliminate all causes of voting behavior other than race, or only a
trivariate regression analysis, which would attempt to eliminate
partisan affiliation, there is a problem with requiring this type
of evidence as an integral part of the vote dilution inquiry: it
ignores the critical distinction between experimental research and
non-experimental research. Specifically, it ignores the warning of
most respected social scientists, including the experts who
predominantly by middle class blacks, elected one senator and
five representatives). The ghetto area had similar success.
During the same time period, it elected one senator and four
representatives.
Id.
at 150 n.29.
182
testified in this case,67 that the causes of voting behavior cannot
be determined from the use of any kind of regression analysis--
whether bivariate, trivariate, or multivariate.
It is important to recognize that the kind of evidence that
the majority requires minority plaintiffs to introduce will involve
no experimental manipulation of independent variables. The
plaintiffs will not be able to manipulate the race or party
affiliation of the candidate to determine which one had the greater
effect on election outcomes. Rather, the plaintiffs will have to
take existing election results and work backwards. This kind of
real world research has been labelled "non-experimental research"
by social scientists. See ELAZAR J. PEDHAZUR, MULTIPLE REGRESSION IN
BEHAVIORAL RESEARCH: EXPLANATION AND PREDICTION 175 (2d ed. 1982).
There are two main problems with inferring causation on the
basis of regression analyses in the context of non-experimental
research:
First, variables used in nonexperimental research may be,
and often are, proxies for causal variables that are not
included in the regression equation. . . . Needless to
say, manipulating a proxy variable will not bring about
a desired effect regardless of the magnitude of the
regression coefficient associated with it. Yet, one
encounters frequently not only the interpretation of
proxies as if they were causal variables but also
recommendations for policy decisions on the basis of such
interpretations. . . .
67
The State of Texas' expert in this case conceded that his
intent in conducting a trivariate regression analysis "was not
find out the precise reasons why a candidate won or lost." He
further stated that, if he "had tried to get involved in campaign
expenditures and incumbency, ratings by the Bar Association, it
would be an impossible task to do." See LULAC III,
986 F.2d at 805
.
183
Second, variables in nonexperimental research tend
to be intercorrelated. Since more often than not
researchers neither understand the causes of the
interrelations nor attempt to study them, implications of
regression coefficients for policy decisions are
questionable.
PEDHAZUR, supra, at 224.
Requiring minority plaintiffs to come forward with a
multivariate regression analysis to determine the causes of
racially divergent voting patterns, as Judge Higginbotham
originally advocated in City of Lubbock, see supra Part I.A.1.a.,
would implicate the second problem described above. The
independent variables listed by Judge Higginbotham--including
incumbency, campaign expenditures, party identification, income,
media use measured by cost, religion--"tend to be correlated,
sometimes substantially." PEDHAZUR, supra, at 224. Therefore, "it
[becomes] difficult, if not impossible, to untangle the effects of
each variable." Id. By inferring causation from such analysis, we
would undoubtedly be engaging in what amounts to an "almost
mindless interpretation[] of regression analysis in nonexperimental
research." Id. at 223. In short, we would be importing "junk
science" into the Voting Rights Act while rejecting it in other
contexts.68
68
Professor Bernard Grofman, of the University of
California at Irvine, has recently commented on the pitfalls of
drawing conclusions about causation from multivariate analyses of
voting patterns. In an article appearing in Social Science
Quarterly, Professor Grofman laments that "[f]undamental flaws
exist in most multivariate approaches to bloc voting analysis
used to date." Bernard Grofman, Multivariate Methods & the
Analysis of Racially Polarized Voting: Pitfalls in the Use of
Social Science by the Courts, 72 SOC. SCI. Q. 826, 828 (1991).
Professor Grofman specifically criticizes the methodology used by
184
Requiring minority plaintiffs to only come forward with a
trivariate regression analysis, as the majority seems to do in this
case, does not alleviate the social science problems; it only
multiplies them. Not only does such a requirement ignore the fact
that the two independent variables (i.e., race and partisan
affiliation) are substantially correlated, it also runs the risk
that the two variables being studied are only proxies for causal
variables that are not included in the regression equation.
Indeed, the majority's position in this case directly conflicts
with Judge Higginbotham's statement in City of Lubbock, where he
criticized a bivariate regression analysis for "ignor[ing] the
reality that race or national origin may mask a host of other
explanatory variables."
730 F.2d at 235
. That is, a trivariate regression analysis such as the one now effectively required by the the defendants' expert in McCord v. City of Fort Lauderdale,787 F.2d 1528
, vacated,804 F.2d 611
(11th Cir. 1986). This expert testified that, because the race of the candidate was not significant in explaining election outcomes beyond what could be accounted for by other variables (such as incumbency, campaign expenditures, newspaper endorsements, voter turnout, and the sex of the candidate), race was not really a factor in accounting for voting patterns. See787 F.2d at 829
. According to Professor
Grofman, the expert's interpretation of the voting statistics was
"simply wrong," because, among other things, "there are so many
other variables collinear with race used that they almost
certainly will reduce [the] significance of race in a
multivariate regression." Grofman, supra, at 830. Ultimately,
Professor Grofman concludes:
[A]s used so far by expert witnesses for defendants in
voting rights cases, multivariate regression methods
have produced misleading results about the levels of or
existence of racial bloc voting patterns, and have
served mainly to misuse statistics and confuse courts.
Id. at 832.
185
majority ignores the reality that race or partisanship "may mask a
host of other explanatory variables."
The trivariate regression analyses offered in this case
undoubtedly demonstrate that the party affiliation of a candidate
is a better predictor of electoral success than the race of the
candidate. Because we are dealing with non-experimental research,
however, I cannot take the leap that the majority makes--namely,
that the party affiliation of a candidate is the best, or the
single most powerful, explanation of electoral success. The
evidence in this case also demonstrates that, in many of the
counties, race is substantially correlated with party affiliation,
and the trivariate regression analysis offered in this case did not
determine, and could not have determined, why people join certain
parties. In my view, then, it can no more explain why people vote
the way they do than a bivariate regression analysis.
Significantly, for purposes of the Voting Rights Act, it could not
negate "race or color" as an explanation for election outcomes.
(iii) The practical problem
The majority's approach to legally significant white bloc
voting and racially polarized voting places an almost
insurmountable hurdle in front of minority groups proceeding under
section 2. Unless minority plaintiffs can successfully establish
that voters in the controlling political party are racially
motivated--either through the use of questionable voting statistics
or by calling people from that party and asking them why they voted
186
the way they did69--their claim will fail. In fact, they will not
even be able to make out a prima facie case.70
69
But see Kirksey v. City of Jackson,
663 F.2d 659, 662
(5th Cir. Unit A Dec. 1981) (holding that, because of First Amendment concerns, voters' motivations are not subject to searching scrutiny by plaintiffs in a voting rights case), clarified,669 F.2d 316
(5th Cir. 1982).
70
In this regard, I note that the majority's position is
much more strained and severe than the one taken by Chief Judge
Tjoflat of the Eleventh Circuit. In Solomon v. Liberty County,
899 F.2d 1012
(11th Cir. 1990) (evenly-divided en banc opinion), cert. denied,498 U.S. 1023
(1991), Chief Judge Tjoflat, writing
for four other judges, advocated a no racial bias affirmative
defense under section 2. He reasoned:
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.
Id. at 1022 (Tjoflat, C.J., joined by Fay, Edmonson, Cox, and
Hill, JJ., specially concurring). The section 2 framework, as he
envisions it, would work in a manner analogous to the framework
followed in Title VII cases. See United States Postal Serv. Bd.
of Governors v. Aikens,
460 U.S. 711
(1983); McDonnell Douglas Corp. v. Green,411 U.S. 792
(1973). If minority plaintiffs satisfy the Gingles threshold inquiry, a rebuttable presumption arises that the community is motivated by racial bias. See Solomon,899 F.2d at 1035
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