Williams v. City of Dallas

MEMORANDUM OPINION

BUCHMEYER, District Judge.

This is a voting rights case.

It concerns the “8-3 system” for the election of members of the Dallas City Council — i.e., 8 single-member districts and 3 “at-large” places. Under this system, no African-American has ever been elected to one of the at-large seats; only one Mexican-American has been elected at-large under the 8-3 system but, as discussed below, this was due to some very unusual circumstances that will not be repeated. Accordingly, this opinion holds:

(i) that the 8-3 system violates § 2 of the Voting Rights Act, 42 U.S.C. § 1973 , because it dilutes the votes of politically cohesive African-Americans

and

of politically cohesive Mexican-Americans in Dallas; and

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(ii) that a special Council election must be held to remedy the adverse effects of the 8-3

system

— the

denial of equal access to the City’s political

process— which blacks and Hispanics have suffered under this system for almost 15 years.

The Fifth Circuit has repeatedly emphasized that there is a “special need for detailed findings of fact in vote dilution cases”

1

in which the district court performs a “searching and practical evaluation of ‘past and present reality’ [based] on a functional view of the political process.”

2

“Because the resolution of a voting dilution claim requires close analysis of unusually complex factual patterns, and because the decision of such a case has the potential for serious interference with state functions, we have strictly adhered to the rule 52(a) requirements in voting dilution cases and have required district courts to explain with particularity their reasoning and the subsidiary factual conclusions underlying their reasoning ...

Perhaps in no other area of the law is as much specificity in reasoning and fact finding required, as shown by our frequent remands of voting dilution cases to district courts.”

(872 F.2d at 1203) (emphasis added).

Accordingly, the Findings of Fact in this opinion are exhaustive.

3

Because of their length, this Memorandum Opinion — for convenience

4

-will begin with a brief discussion of

the applicable law

(pp. 1319-1320), followed by a

summary of the opinion (pp.

1320-1330) and its reasons for holding that:

(i) under the 8-3 system, African-Americans and Hispanics are denied access to the 3 at-large seats because they cannot

raise

— from

their own communities

— the enormous amount of money (at least $150-200,000) that is required for an effective at-large, city-wide campaign in Dallas;

(ii) under the 8-3 system, blacks have been unfairly prohibited from electing more than two single-district Council Members by the “packing” of African-Americans into two districts with 75-87% concentration and 85-91% total minority population (Districts 6 and 8) — and by splitting the remaining African-American population in Dallas between Districts 1 and 7, to prevent the creation of a third black district; and

(iii) these discriminatory effects of the 8-3 system, which clearly violate § 2 of the Voting Rights Act, must be remedied by a special City Council election to be held

as soon as possible.

The opinion summary will be followed, of course, by the specific, detailed E’indings of Fact required in voting dilution cases. Specifically, these comprehensive findings will cover the following topics:

A. General:

Findings 1-8

B. History of the 8-3 System (1856-1980):

Findings 9-131

C. The Continuing Reapportionment Controversy (1980-1989):

Findings 132-225

History of the 10-4-1 Plan (1989-1990):

Findings 226-276

D.

Specific Findings on Critical Issues:

Findings 277-311

E.

(1) safe districts & packing:

Findings 278-282

(2) at-large seats:

Findings 283-293

(3) the supposed “city-wide” view:

Findings 294-299

(4) the "two people to call” argument:

Findings 300-304

(5) the mayor’s at-large place:

Findings 305-311

F. The

Gingles

Threshold:

Findings 312-378

(1) Blacks — size

&

compactness:

Findings 313-314

(2) Blacks — politically cohesive:

Findings 315-335

(3) Blacks — white bloc voting:

Findings 336-357

(1) Hispanics — sized compactness:

Findings 357-364

(2) Hispanics — politically cohesive:

Findings 365-378

(3) Hispanics — white bloc voting:

Findings 365-378

G. The

Zimmer

Factors:

Findings 379-429

H. The Totality of the Circumstances Test:

Findings 430-441

I. Observations About the 10-4-1 Plan:

Findings 443-449

J. The Delay & The Remedy:

Findings 450-461

The Findings of Fact will, of course, be followed by the Conclusions of Law (1-18)

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(pp. 1413-1415), and by the Conclusion of this opinion (pp. 1415-1416).

I. THE APPLICABLE LAW

The basic question in this § 2 vote dilution case is whether, as a result of the challenged 8-3 system for Dallas City Council elections, the African-American plaintiffs and the Mexican-American intervenors

“do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." Thornburg v. Gingles,

478 U.S. 30, 44 , 106 S.Ct. 2752, 2762 , 92 L.Ed.2d 25 (1986) (emphasis added).

the Act

Specifically, § 2 of the Voting Rights Act, 42 U.S.C. § 1973 , provides:

“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color ...

“(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 ... 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.”

5

the Gingles threshold

Under

Thornburg v. Gingles,

478 U.S. 30 , 106 S.Ct. 2752 , Dallas’ use of the 8-3 system — with the 3 at-large seats

6

— would not impede “the ability of minority voters to elect representatives of their choice” unless there is a white bloc voting majority that would

“usually

be able to defeat candidates supported by a politically cohesive, geographically insular minority group.” 478 U.S. at 48-49 , 106 S.Ct. at 2765 . Therefore, the black plaintiffs and the Hispanic intervenor in this case must first meet the

Gingles

three-part threshold:

“Under

Gingles ,

plaintiffs must establish

first

that the group is sufficiently large and geographically compact to constitute a majority in a single-member district;

second,

that it is politically cohesive and

third,

that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate. 478 U.S. at 50-51 , 106 S.Ct. at 2766-67 ;

Campos [v. City of Bay

town], 840 F.2d [1240] at 1243. The second and third elements are

usually

established by statistical evidence of racially polarized voting by the voters in the relevant political unit.”

Westwego,

872 F.2d at 1205-06.

the Zimmer factors

If this threshold is met, then this Court must determine if the 8-3 system violates § 2 of the Voting Rights Act by conducting a “searching practical evaluation” of the list of factors first set forth in

Zimmer v. McKeithen,

485 F.2d 1297 (5th Cir.1973)

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(en banc),

and later in the Senate Report of the 1982 amendments to the Act:

“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 procedures is tenuous.”

Westwego,

872 F.2d at 1204-05; S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982),

reprinted in

1982 U.S.Code

Cong. & Admin.News

177, 206-07.

totality of the circumstances

However, the final determination by this Court concerning the 8-3 system must “be made by an evaluation of the totality of the circumstances” — including the

Gingles

threshold and the

Zimmer

factors.

Westwego,

872 F.2d at 1206;

Terrazas v. Clements,

581 F.Supp. 1329, 1344-45 (N.D.Tex. 1984) (three-judge court). In the evaluation, this Court must adhere to two themes:

first,

that “courts have not tolerated political systems that effectively exclude minority voters from the democratic processes,” but

second,

that “courts have consistently eschewed the notion that [the Voting Rights Act] secures to any group of citizens the right to obtain political representation in proportion to its numbers.”

Terrazas v. Clements,

581 F.Supp. at 1341 .

II. SUMMARY OF THE OPINION

The history of minority participation in the political process of Dallas is not one of

choice;

it is a record of what blacks and Hispanics have been

permitted

to do by the white majority.

This history has three distinct periods:

the century

of total exclusion when intentional discrimination prevented any minorities from serving on the Dallas City Council;

the decade

of the Citizens Charter Association’s selection of those blacks and Hispanics who would be permitted to serve as at-large members of the Council; and,

the 15-year period of the 8-3 system,

which permitted two blacks to serve as single-district representatives on the City Council ... but which (with the exception of 1980-83) denied minorities the right to elect any other single-district Council Members ... and which denied both blacks and Hispanics access to any of the 3 at-large seats without the support, and permission, of the white majority in North Dallas.

(1)

The Century of Exclusion (1856-1969)

African-Americans and Hispanics were not permitted to serve as members of the City Council for almost 100 years after Dallas was chartered in 1856.

The discrimination against blacks and Mexican-Americans — during most of this period—

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was intentional, open, and even official. Shameful as it now seems, until 1968 the Dallas City Charter contained a

“Segregation of the Races

” section which authorized the Council to segregate the City into totally separate areas for whites and for the “colored races.” Under this ordinance (or in accord with its spirit):

... the City Manager specified the areas of Dallas that were reserved for whites, for “Negroes,” and for “Mexicans”; and the City Council passed a number of racially-motivated ordinances (1942, 1961), including one that required blacks to sit in a “special section” in the back of City buses (1937).

... the Council tried to solve “the Negro” housing problem, and keep blacks from moving into the “white areas” of Dallas, by having DHA construct the massive, 3500 unit West Dallas Housing Project (1950).

... even as late as 1960 the DISD’s resistance to desegregation was bolstered by a federal judge who wrote that most of the whites and Negroes in the City of Dallas do not favor integration of the schools because this is, “in all probability, the most direct and surest route to amalgamation” of the races.

Under conditions like these, it is not surprising that a black never ran for election to the Dallas City Council until 1959 — and that there was only one African-American candidate in each of the next three Council elections (1961-1965).

*

Of course, since all 9 members of the City Council were elected “at-large, city-wide,

”

all of these black candidates

— even

though they carried minority areas of Dallas with over 80% of the vote

— were

defeated by massive white bloc voting in North Dallas and in the other white areas of the City.

In addition, the Citizen’s Charter Association (“CCA”) controlled City Council elections as an all-white, “non-partisan slating group.”

Since its beginning in the 1930’s, the CCA had never endorsed a black or Hispanic candidate for City Council.

(2)

The Decade of Permission by the CCA (1968-77)

By 1967, Dallas had a minority population of almost 35% (25% black, 8-10% His-panic). In that year, the CCA struck a political campaign bargain in order to get the black community’s support of CCA-endorsed candidates; in return for that support, the size of the City Council would be increased by two seats — from 9 to 11 — and these two seats would be reserved for minorities.

Accordingly, in the 1969 elections — with the CCA providing financial support and making sure there was no viable white

opponent

-George

Allen (African-American) and Anita Martinez (Mexican-American) became the first minorities who were permitted to serve on the Dallas City Council.

In the next two Council elections (1971, 1973), the CCA selected one black and one Hispanic to serve on the City Council; then in the 1975 elections, it permitted two African-Americans (George Allen, Lucy Patterson) and one Hispanic (Pedro Aquirre) to serve as Council Members.

(3)

15 Years Under the 8-3 System (1975-90)

In 1971, A1 Lipscomb (and other African-Americans) filed a voting rights case in federal court in Dallas, claiming “that the all at-large system of electing Council Members unconstitutionally diluted the vote of racial minorities.”

Lipscomb v. Wise,

399 F.Supp. 782 (1975),

reversed

551 F.2d 1043 (5th Cir.1977),

but affirmed

437 U.S. 535 , 98 S.Ct. 2493 , 57 L.Ed.2d 411 (1978).

Origin of the 8-3 System (1971-75)

Four years later,

this case was tried and Judge Mahon found that the “city-wide, at-large” system of electing members to the “Dallas City Council” was unconstitutional because:

“...

when all members of the City Council are elected at-large, the significance of this pattern of blacks carrying their own areas and yet losing on a city-wide basis [because of a white bloc

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vote] is that black voters of Dallas do have less opportunity than do the white voters to elect councilmen of their choice.”

However, when he considered the remedy for this

intentional discrimination

against minorities by the "all at-large system,” Judge Mahon accepted the plan proposed by the City, a mixed 8-3 system— i.e., 8 single-member districts and the continuation of 3 at-large places (including the mayor). He did this for two reasons:

First,

since no single-member district could be drawn for Hispanics, the “operation of white-dominated slating groups,” like the CCA, permit “Mexican-American citizens ... to operate in a “swing-vote” manner

[in the 3 at-large places

of the 8-3 system] and give them opportunity they might not otherwise have had” — because they must, with “lesser numbers” and “their diffuse resident patterns,” form coalitions with “either blacks or whites in order to maintain political stability”; and

second,

there is “legitimate governmental interest to be served by having

some

at-large representation” on the Council to provide a “city-wide, non-sectional” view.

The 8-3 system has been used for all Dallas City Council elections since Judge Mahon’s decision in March 1975 through the 1979 Council elections (although the single-district lines were redrawn in 1979 and in 1982). This is how

African-Americans

have fared under the 8-3 system:

... two African-Americans have been elected to single-member districts in every election, but they

were

— as

expected

— from the two predominately black districts:

District 6

(under the 1980 census, 84.92% total minority and 74.91% black) and

District 8

(under 1980 census, 91.05% total minority, 87.39% black);

... with this “packing” of black population in Districts 6 and 8, and with the splitting or “cracking” of the remaining African-American population between District 1 and District 7 — in order to assure that Oak Cliff

(District 1)

has a white representative on the Council— there has been no black candidate elected in any other single-member district in the past 15 years (besides Districts 6 and 8);

... no African-American has ever been elected to one of the 3 at-large seats; indeed, in all of the at-large races since 1975, there has been only one serious black candidate (whose race is discussed below).

Similarly, this is how

Mexican-Americans

have fared under the 8-3 system in the City Council elections during the past 15 years:

... despite the hopes in Judge Mahon’s opinion that Mexican-Americans would, under the 8-3 system, have a “heretofore unavailable flexibility and greater opportunity to participate in the political life of Dallas” in view of the 3 at-large seats—

every Hispanic candidate was defeated in the April 1975 elections;

since then, no Hispanic even ran for an at-large seat in any election until 1987 (this race is also discussed below).

... after refusing repeated requests by blacks and Hispanics, the City Council — at the insistence of the Justice Department in 1979 — did create a third minority district by redrawing the lines of District 2 (under the 1980 census, 76.73% total minority, 43.38% black, 33.34% Mexican-American); and a Hispanic (Ricardo Medrano) was elected to this single-member district in the 1980 and 1981 elections; however, the lines of this district were redrawn in 1982 (64.98% total minority, 33.20% Hispanic, 31.78% black)— and since then, Hispanic candidates have not won an election in District 2 or any other single-member district.

... one of the two reasons stated by Judge Mahon for approval of the 8-3 “mixed system” — the “greater opportunity” for Mexican-Americans to be elected to at-large seats with CCA support — no longer existed; the CCA did not endorse or support any candidates in the 1977 elections; it was defunct, and it has never been replaced by any other “slating group” in Dallas.

... only one Mexican-American has been elected to an at-large seat under the 8-3 system but, as discussed below, this was due to some very unusual circumstances that will not be repeated.

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The Black Reapportionment War (1981-82)

The 1980 census showed that Dallas had a minority population of 41.67% (29.38% African-American and 12.29% Mexican-American). African-American members of the Council (and others) had repeatedly asked for the creation of a third black district, which would give them a 27.2% representation on the City Council (reflecting the increased black population of almost 30%). Indeed, as demonstrated by plans prepared by the City staff,

it was possible for the Council to create three districts with a black majority of 60-65% and a fourth “swing district” with a minority population in excess of 53%.

However, there was vehement opposition to any such change — particularly from Council Members Don Hicks

(District

1-Oak Cliff), Max Goldblatt

(District 7-

Southeast Dallas), and Ricardo Medrano

(District 2)

-who did not “intend to have a third [black] district carved from their districts.” The reapportionment war, which resulted in 1981-82 from this controversy, was marked with acrimony and racial tension. Credible testimony at trial established that statements like these were made at Council work sessions and meetings:

... Oak Cliff (District 1) had to have a white representative on the Council because “Anglos felt extremely uncomfortable being represented by blacks,” and if District 1 did not have an Anglo member on the City Council, there would be “white flight” and “Oak Cliff would be black within two years”;

... that there could be a third black City Council member without another single-district for African-Americans if a “qualified” black would just run for one of the 3 at-large seats;

... it is unfair to have five Council members (including all three at-large representatives) from just two districts in North Dallas,

and the mayor’s reapportionment plan passed by the Council is a “scheme to continue to oppress blacks in the City of Dallas and to deny them representation.”

The net result of the 1981-82 reapportionment war was this: the five white majority districts remained basically unchanged;

District 6

had its black population reduced to 74.91% from 82.61% (but its total minority population increased from 83.68% to 84.92%);

District 8

had only insignificant changes in its black and total minority population; and

District 2

had its total minority population reduced to 64.98% from 76.73% (but with little reduction in its Hispanic population, which dropped only to 33.20% from 33.34%).

These changes to District 2 were made with the approval of the incumbent, Ricardo Medrano

-who was subsequently defeated in the April 1983 elections.

**

The At-Large Race by a “Qualified Black”

In early 1983, African-American leaders in Dallas met with the objective of finding “a consensus candidate to run at-large out of the black community because [they]

had continuously been informed that a black could win an at-large race with the right credentials.”

This group sought “one of the best candidates that we could put up, one who had been well-educated, who had [held] very high positions, who had participated in [respected] civic organizations around the City at every level.” At this meeting, Marvin Robinson was selected as the “test case” for the black community.

Marvin Robinson was an

excellent

choice as the “consensus black candidate.” He was well-educated, he was a veteran and a successful business executive, and he had “paid his dues” by being

very active

in civic and communities affairs in Dallas. The group of African-American leaders that selected Marvin Robinson as the “consensus black candidate” in early 1983 was also realistic:

“We took a good look at our involvement in the black community and the lack of funds to run the race.

We knew

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that a black in this town would need $200-250,000 [for an at-large race]. We also knew that we lacked the capacity in the black community to raise those kind of funds.

And the only way we were going to raise those funds was to go back to those [white] individuals who we worked with and [with whom] we had tried to develop a rapport or cadre of support ...”

However, Robinson and his supporters found out that this assistance and financial backing — which they expected from Anglo business and community leaders, and other whites they had known and worked with in a myriad of civic and community efforts— was not there.

Although they went back for white support “continuously, time and time again, ” Robinson’s campaign was able to raise only $15,739

— and

most of that “came out of poor black folks’ pockets.

”

This $15,739, plus another $15,-000 borrowed from a bank, was the total amount that Robinson had for his citywide, at-large campaign for Place 9.

Robinson’s main opponent in the 1983 Place 9 race was Jerry Rucker, a white candidate; Rucker lived in North Dallas, and he raised and spent over $160,000 in this race. In the general election, Rucker received 45.45% of the total vote. Marvin Robinson was second with 21.23%, and the other black candidate — the plaintiff Marvin Crenshaw — was third with 12.15%.

Robinson and Crenshaw together had received some 90% of the black vote, but only 20% of the white vote.

In the runoff on April 16, 1983, Marvin Robinson — the consensus at-large candidate of the black community — was soundly “drummed.”

Although Robinson received almost 100%> of the black votes, he got only 11% of the white vote;

this translated in 31.78% of the total vote, and Jerry Rucker won with 68.22%.

Since this race by Marvin Robinson in 1983, no serious black candidate has ever run for an at-large seat in the Dallas City Council elections

because blacks are convinced that “this town is not ready ... to elect an African-American in an at-large race” — and that no “African-American in this town is going to [be able to] acquire the $250,000 that he or she needs to run that kind of race.”

The Hispanic Reapportionment War (1986)

There had been no Mexican-American on the Dallas City Council since the lines to District 2 had been redrawn in 1982 — and since Ricardo Medrano had been defeated in the 1983 Council elections. This led Mexican-Americans to petition the City Council for reapportionment in 1986 and for a redrawing of the district lines in the 8-3 system to create a possible Hispanic district. As they had before, African-Americans asked for the creation of a third black district.

In 1986, just as in 1982, the Dallas City Council could have drawn three districts with a black majority of 60%-65% and a fourth “swing district” with a total minority population in excess of 53%>.

However, after heated and racially-charged discussions, the Council decided, by a 6-5 vote, to take no action to reapportion the 8 single-member districts in 1986.

The At-Large Race by A “Qualified His-panic” (1987)

Credible testimony established that, after this Council vote, Mayor Starke Taylor met with some Mexican-American leaders; that he told them he would support and endorse a Mexican-American for one of the at-large seats in the 1987 elections; and that he would agree “to do everything he could” to see that the Hispanic candidate won, including helping the candidate get financial backing and votes from North Dallas. Credible testimony also established that this offer of support was made by Mayor Taylor because “he felt strongly that the Hispanic community was going to sue the City. He felt that they would have a case,” and that “one of the reasons why he was supportive of a Hispanic candidate was to try to delay or prevent a Hispanic challenge to the 8-3 system.”

This lead to A1 Gonzalez being the sole Mexican-American candidate in the Place 10 at-large race in the 1987 Council elections. With reference to his selection, Gonzalez testified that he had been very successful as co-chair of an important 1985 City bond campaign and very active in the Hispanic Chamber of Commerce; that he met with Mayor Taylor and businessman

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Norman Brinker about running for Place 10; that Brinker agreed “to be my chair” and “to try to raise money from the business community”; that businessman W.L. Bankston agreed to serve as his treasurer;

that he knew he couldn’t raise the money for an at-large race from the black or Hispanic communities; but that he hoped to be able to raise some “$150,000 from the Dallas establishment."

Gonzalez did, in fact, raise over $173,000 —almost all from “the North Dallas establishment.”

With this white support and with no serious white opponent

— the other candidates were 4 African-Americans and a 76 year old white male (Martin)— Gonzalez won the 1987 Place 10 race without a runoff. He received 57.59% of the vote; the white candidate (Martin) received 10.89%; and the four black candidates split the remaining votes.

History of the 10-4-1 Plan

In early 1988, following a long-period of complaints by minorities over the “deadly force policy” of the Dallas Police Department and the powers of the Police Review Board, two Dallas police officers were shot and killed within a two-week period. The Chief of Police, after the death of the two officers, accused the two black City Council Members (A1 Lipscomb, Diane Ragsdale) of creating an atmosphere of “hate and hostility” in the City which fostered violence. As this racial tension was described later:

“In early 1988, Dallas experienced a chain of events that devastated the City. The anguish which accompanied the loss of life — of both citizens and police — made it clear that racial tensions were high and that without some method to openly address those tensions, our City was in danger of continued crisis.”

the Dallas Together commission

This lead to the mayor’s appointment of the

“Dallas Together’’

commission, which she charged with the “difficult task of finding ways to reduce the racial tensions in our community” by breaking down barriers of “prejudice, racism and classes” — and

“with the task of bringing Dallas together

by identifying the root causes of the racial tensions being experienced in our City.”

On May 18, 1988, shortly after

Dallas Together

started its work, this lawsuit was filed. The black plaintiffs charged that the City’s 8-3 mixed system for electing Council members was unconstitutional and was in violation of § 2 of the Voting Rights Act because it dilutes the votes of African-Americans. (The Ledbetter Neighborhood Association intervened on August 25, 1988, claiming that the 8-3 plan also discriminates against Mexican-Americans.)

City Council: the 8-3 system is fair

It was with this background of racial tension, hostility, crisis and this lawsuit— and with

Dallas Together

studying, among other things, the issue of minority representation in City government — that the depositions of eight members of the City Council (including the mayor) were taken in this case in September of 1988.

Of the eight Council Members deposed in September of 1988, there were six who testified that the 8-3 system was “fair" or “equitable" and that it afforded equal access to minorities

— and that they believed a “qualified black” could be elected to one of the 3 at-large places, even though it would be much more expensive to run for an at-large seat than a single-member district.

In January 1989, the Final Report of

Dallas Together

was submitted to the May- or, to the “City of Dallas and to the citizens of Dallas.”

Contrary to the views of the City Council majority,

the Political Participation Committee of Dallas Together had concluded that the 8-3 system was unfair:

“By most standards

(numerical, demographic, population and racial distributions)

our City Council districts, as presently structured, do not provide sufficient opportunity for all of our citizens to be properly and fairly represented in a system that is designed to meet the needs of contemporary Dallas.

“The committee noted, with some alarm, the sense of hopelessness and despair by many of our citizens of all races.

Much of their concern is founded in a sincere belief, rightly or wrongly, that they are systematically excluded from

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the political process.

The committee recognized that deeply felt emotions such as these provide a breeding ground for crisis ...” (Final Report, p. 21) (emphasis added).

Accordingly,

Dallas Together

recom

mended

— “with

a sense of urgency”

— that the Dallas City Council appoint a “Charter Review Committee” to consider “the proper number, population size, and demographic make-up of our single-member City Council districts ... in conjunction with an evaluation of the proper role of [at-large] districts in our municipal system.”

the Charter Review Commission

On March 8, 1989, the Council established the Dallas Citizens Charter Review Committee (“CRC”), as recommended by

Dallas Together.

Ray Hutchison, the Chairman of CRC, had also chaired the Political Participation Committee of

Dallas Together;

at trial, he explained that CRC concluded that the 8-3 system was unfair to minorities — and that 18% (i.e., 2 out of 11 members) “was not fair representation on the Dallas City Council for blacks”— particularly since

the Council could “achieve 27.3% African-American representation” (i.e., 3 out of 11 members) at any time by redrawing the 8-3 lines to create a third “safe seat for blacks.”

On June 13, 1989 — two weeks after the deadline that had been set by the City Council — the CRC met to make final decisions on recommendations to the Council.

The meeting opened with some civility, but it degenerated into acrimony and bitterness that matched the animosity that had taken place seven years earlier, during the 1982 reapportionment war.

By its first vote, the CRC unanimously condemned the 8-3 system. After this vote, the CRC considered the 12-1 plan (mayor at-large) versus a 10-4-1 plan (10 single-districts, 4 quadrants or “super districts” and the mayor elected at-large). In a racially-charged atmosphere, the CRC— by a 10-4 vote — decided against any plan that was all single-member districts; and, the committee decided to recommend 4 quadrant districts (by a 10-4 vote) and 10 single-member districts with the mayor elected at-large (by a 9-5 vote).

The CRC projected that, under the 10-4-1 plan, there would be 4 “safe seats” for blacks (3 local districts and 1 quadrant, with each having 75 +% concentration”)— but that there would be no “safe seat” for Hispanics (only a 44% Hispanic concentration in a 65% “majority minority” local district). By their “safe seats,” African-Americans were expected to achieve 26.67% representation of the expanded City Council (i.e., 4 out of 15 seats).

This, then, was the net result of the efforts of CRC: it proposed a plan for the structure of City government

— the

10-4-1 plan

— that

actually projected a lower percentage of African-American representation (26.67%) than the City Council could have achieved simply by redrawing lines under the existing 8-3 plan to create a third black district (27.3%)

and a fourth “swing district” with a total minority concentration in excess of 50%.

the 10-4-1 referendum

On June 28, 1989 — the last day on which an August referendum could be set on the Charter amendments required by CRC recommendations — the City Council voted 7-4 to adopt the CRC recommendation concerning the 10-4-1 plan, and to set it (and other matters) for a referendum election on August 12, 1989. However, the City Council rejected one recommendation of the CRC. Instead of using the 10-4-1 plan for the regular May 1991 elections (based on 1980 census data),

the Council voted to delay these elections until at least November 1991 or later depending on when the City was able to obtain preclearance from the Attorney General under § 5 of the Voting Rights Act.

In the August 1989 election, the 10-4-1 plan passed with 65% of the total vote. However,

95% of the African-Americans who voted, and over 70% of the Hispanics who voted, were opposed to the 10-4-1 plan

— which

passed only because it received 85% of the white vote.

In view of this bloc voting

the 10-4-1 referendum in August 1989 was probably the most racially divisive election in the history of the City of Dallas.

The well-intentioned

Dallas Together

commission — and the tor

*1327

tured efforts of the CRC — had ended after the August 1989 referendum with severe racial tension, a divided community, and a racially charged atmosphere — conditions that were no better, and were perhaps even worse, than when

Dallas Together

had been conceived in early 1988.

City Council: the 8-3 system is not fair

However,

Dallas Together

and CRC did have a definite impact upon the attitude of the members of the City Council about the fairness of the 8-3 system. Unlike the depositions taken in September 1988-— where 6 of 8 Council Members testified that the 8-3 system was “fair and equitable and afforded equal access to minorities” — when they testified at trial or by depositions in September 1989, 9 members of the present Council either (i) agreed with the unanimous conclusion of CRC that the 8-3 system was racially unfair and should be condemned, or (ii) felt that the 8-3 system should be abandoned for some other reason.

Specific Findings on Critical Issues

This put the City in an unusual position, to say the least, at trial.

Dallas Together,

the CRC, and a sizable majority of the Council Members had all concluded that the 8-3 system was unfair. Yet, the City attempted to defend the 8-3 system at trial. This may partially explain why the City lost on each critical issue raised by the trial testimony and the law.

at-large seats

Minorities are denied access to the 3 at-large seats in the 8-3 system. No African-American has ever been elected to one of these at-large seats. Only one Hispanic (A1 Gonzalez) has been elected at-large under the 8-3 system but, as discussed above, that was due to very atypical circumstances which will not reoccur.

***

An effective campaign for a single-member district under the 8-3 system costs approximately $15-30,000, and minority candidates have been able to raise enough money to run successful campaigns in Districts 6 and 8. In contrast,

a campaign for an at-large place would cost at least $100,000; would probably range from $150-200,000; and may well require from $200-250,000 for a viable minority candidate to succeed in an at-large race.

Most of the money raised for these at-large races comes from the non-minority areas of Dallas.

There is an obvious reason for this: the substantial economic disparities between white and minority residents of Dallas.

Because of this, it is simply not possible for black or Hispanic candidates to raise—

from their communities

— the large amounts of money needed for an at-large City Council race. With only small amounts of money available,

a black or Hispanic at-large candidate is not able to purchase radio or television advertising

— an

essential for any city-wide campaign in Dallas.

Indeed, most cannot even find the $20,000 that would be required for one city-wide mailing of political material. And, the “door-to-door” campaigning that can be effective for single-member districts is not a viable alternative, because it is simply impossible for a candidate to “walk” the entire City of Dallas in an at-large campaign.

Accordingly, the only way that a minority candidate can win an at-large race in Dallas under the 8-3 system is to obtain substantial support from the white community. Yet, it was obvious from the trial testimony that a minority candidate elected with overwhelming white support — even an excellent at-large member, like A1 Gonzalez — does not have the confidence of the black or Hispanic communities. Minorities have the right to be able to choose their own candidates; indeed, as Judge Mahon wrote in 1975, “meaningful participation in the political process must not be a function of grace, but rather is a matter of right.”

the supposed “city-wide” view

Therefore, under the 8-3 system, minorities are denied equal access to the three at-large seats. This severe, adverse impact

*1328

upon blacks and Hispanics

is not

justified by the argument that at-large seats are necessary so there will be some members with a “city-wide view” on the Dallas City Council. The CRC unanimously rejected this supposed justification when it voted against any system with at-large seats. CRC Chairman Ray Hutchison correctly stated that “parochial views don’t come with single-member districts; they come with the individual.” During a CRC meeting, former Council Member Lee Simpson put it very directly:

“It is baloney that single-district members do not vote on a city-wide basis.”

Moreover, the testimony established that many of the at-large members of the Council — almost all of whom were from North

Dallas

— had

not

provided any “city-wide view”; instead, they simply ignored the minority areas of the city and represented the interests of North Dallas that contributed the money for the at-large races. In addition, the “city-wide view” argument totally ignores the fact that Dallas has had a council-manager form of government since 1931 — and a City Manager who has the responsibility to provide a “city-wide” view on policy issues being determined by the Council.

the “two people to call” argument

The City also argues that the at-large seats in the 8-3 system are justified because they give a person with a complaint about City services “two people to call instead of one” — an at-large member in addition to the single-district representative.

This is not an argument to be tossed aside lightly; it should be thrown away with great force.

****

Dallas citizens do not have only “one person” (their district representative) to call about a complaint. The City Manager and his staff run the day-to-day business of the City. Accordingly, persons with complaints about City services can call the City Manager, the City department involved, “Action Center,” someone who represents another single-member district, or even ex-council members — just as well as an at-large representative. Indeed, credible evidence established that it would be very unlikely for a black or Hispanic in South Dallas or another minority area to ask for assistance from one of the at-large Council Members in North Dallas.

the mayor’s at-large place

The cost of running for mayor — which has almost become prohibitive in recent years — excludes many people (whites, blacks, Hispanics, and other minorities) from a viable campaign for

Place 11

(may- or). Although it is a close question, because of several factors — e.g., the serious split in credible testimony; a sincere concern about accountability of a mayor elected by colleagues on the Council, instead of all of the voters; the role of the mayor as the spokesperson for the City of Dallas; the recognition of the special position of the mayor by this Court in the

Walker III

opinion (public housing desegregation case) —there is justification for the continued election of the mayor at-large.

However, the Court specifically notes that CRC — after considering a myriad of possibilities — determined “that 15 was the maximum operating size” of the Dallas City Council (including the at-large election of the mayor). The City Council agreed, and a 15-person Council was approved in the August 1989 referendum. This means, of course, that there would be more single-member district seats available for minorities under a 14-1 plan — even if the substantial expense of campaigning for mayor should have a disproportionate impact upon African-Americans and Hispanics.

the § 2 violation

As to the legal and factual elements involved in a vote dilution case, it is not

necessary

— and

it is probably impossible

— to summarize the statistical (and other) evidence that establishes that white bloc voting in Dallas

usually

defeats the preferred candidate of blacks and Hispanics in

*1329

Dallas City Council elections. Suffice it to say that the African-American plaintiffs and the Hispanic intervenor successfully crossed the three-part

Gingles

threshold; then they progressed through the

Zimmer

factors; and, finally, they established under the “totality of the circumstances” that 8-3 system impermissibly denies African-Americans and Hispanics the equal opportunity to participate in the political process, and to elect candidates of their choice in the City of Dallas, in violation of § 2 of the Voting Rights Act.

Observations About The 10-4-1 Plan

This Court is precluded from ruling on the validity of the 10-4-1 plan until it has received “preclearance” under § 5 of the Voting Rights Act. However, the evidence presented at trial does permit this Court to make a few preliminary observations concerning the 10-4-1 plan.

It seems obvious that a minority candidate will not be able to raise the money needed for an effective quadrant campaign

from the black and Hispanic communities.

This means that a black or Mexican-American quadrant candidate would not be able to purchase radio, television, or newspaper ads; could only do limited political mailings; and would not be able to run a “door-to-door” campaign in a quadrant— which will necessarily have over 250,000 people (a greater population than all but the seven largest cities in Texas).

Any such adverse impact upon blacks and Hispanics (i.e., denial of access to at least 3 of the 4 quadrant seats)

would not

be justified by the claim that some members with a quadrant or “quasi-city wide view” are needed on the Council — or that people need “2 representatives instead of 1” to call about City services — any more than these same tenuous arguments justified denying African-Americans and Hispanics access to the three at-large seats in the 8-3 system.

Without question, there are people and organizations who support the 10-4-1 plan in good faith, and for non-discriminatory, well-intentioned reasons. But it is also without question that most African-American and Hispanic individuals and major organizations vehemently oppose the 10-4-1 plan — and feel, also in good faith and not without reason, that the adoption of 10-4-1 reflected “a callous disregard” of their views on the critical issue of what would remedy the past discriminations of the 8-3 system. This schism is, of course, what prevented the bringing of

“Dallas together"

— and what lead to the most racially divisive election in the history of Dallas, the 10-4-1 referendum in August 1989. The Delay & The Remedy

Because the City Council rejected the contrary recommendation of the CRC, there will be no Council elections in May 1991 under the 10-4-1 plan. Instead, these elections have been delayed

until November 1991

“to allow 1990 census data to be used in redistrieting”

or until January 1992

“if the new districts do not get approval from the United States Department of Justice by August 1, 1991.” The City asks this Court to delay and “to just give the 10-4-1 a chance” since it will just be a delay of some 6-9 months.

The City’s estimate of the length of the delay of the May 1991 elections

is not

correct. In fact, the delay may

be

— and

probably will be

— for an unknown, but much longer period of time. The City’s request for preclearance of the 10-4-1 plan, which will be bitterly contested by African-American and Hispanic representatives, could take as long as 16 months. In addition, once the preclearance issue has been resolved, the parties will no doubt return to this Court for a determination of the validity of the 10-4-1 plan. There would be another trial and additional delay —and, although the period is uncertain,

it is easy to see that the May 1991 elections could very well be delayed for two years or longer (until sometime in 1993).

In the meantime, during this IV2-2 year delay, the 8-3 system (which has beén condemned as “unfair” by the CRC and the City Council, and which has been found by this Court to be in violation of § 2 of the Voting Rights Act) would continue — despite the fact that blacks and Hispanics in Dallas have been waiting for some 15 years for the voting rights to which they are so clearly entitled, but which have been denied them by the 8-3 system.

*1330

In no way will this Court tell African-Americans and Hispanics that they must wait any longer for their voting rights in the City of Dallas.

Therefore, an interim City Council election must be held as

soon as possible

in order to remedy the adverse effects of the 8-3 system — the denial of equal access to the City’s political process — which African and Mexican-Americans have suffered in Dallas since 1975, when the 8-3 system first began.

III. FINDINGS OF FACT

This voting rights case was filed on May 18, 1988 by the two African-American plaintiffs against the City of Dallas. On August 25, 1988, the Mexican-American intervenor joined as a party plaintiff. The case was tried from Sept. 5, 1989 through Sept. 14, 1989. Each party presented expert witnesses and statistical evidence, testimony from other witnesses and by depositions,

volumes of exhibits,

and the usual § 2 material showing findings established in similar or related cases.

Terrazas v. Clements,

581 F.Supp. at 1349 .

Most of the evidence was undisputed. However, some of the testimony — particularly that concerning several critical issues — was conflicting. In judging credibility and the weight to be given to this conflicting evidence, this Court considered all of the circumstances surrounding the testimony, such as: What was the demeanor of the witness on the stand? Did the witness have any particular reason to be less than candid? Did the witness have a good memory, understand the questions, and answer them directly? Was the testimony inconsistent with something the witness had said or done earlier? Was the witness’ testimony supported, er contradicted, by other credible evidence?

Based upon these factors, as well as all other factors surrounding their testimony, this Court:

(i)specifically credits the testimony of Council Member A1 Lipscomb, State Senator Eddie Bernice Johnson, State Representative Fred Blair, Marvin Robinson, Dr. Yvonne Ewell, Commissioner John Wiley Price, Council Member Diane Ragsdale, Adelfa Callejo, Diana Orozco, Domingo Garcia, Roy Williams, Marvin Crenshaw, Council Member Lori Palmer and Pettis Norman (except for any testimony by these witnesses which is inconsistent with this opinion);

(ii) credits that testimony given by Mayor Annette Strauss, and Council Members Jim Buerger, Harriet Miers, Charles Tandy, Max Wells, John Evans, Glenn Box and Jerry Bartos, and CRC Chairman Ray Hutchison, which is consistent with this opinion;

(iii) credits the testimony of Dr. Charles Cotrell, the plaintiffs’ expert, and of Dr. Robert Brischetto, the intervenor’s expert — but discounts the testimony of the City’s expert, Prof. Delbert Taebel, because it was not credible; and

(iv) credits the testimony of all other witnesses who appeared at trial or by deposition only to the extent that their testimony does not conflict with the findings of fact in this opinion.

Finally, some of the findings of fact in this opinion are included to show the local atmosphere and context of particular City Council elections.

7

This is because the required § 2

determination

— the

“searching practical evaluation of the past and present reality [based]

...

on a functional view of the political process” (Gingles,

478 U.S. at 45 , 106 S.Ct. at 2763 ;

Westwego,

872 F.2d at 1204)-is not satisfied merely by examining evidence about specific elections or “regression models and numbers” in isolation. Instead, as the plaintiffs’ expert (Dr. Charles Cotrell) testified, elections “take place in a fabric of politics” that must be viewed with common sense in the local “atmosphere and environment within which the dynamics of politics take place.” TR. II (158-59).

8

In addition,

*1331

these “local atmosphere and context” findings are directly related to matters that must be considered under the

Gingles

threshold and the

Zimmer

factors.

A.

General

the plaintiffs

1. Plaintiffs Roy Williams and Marvin Crenshaw are residents of the City of Dallas. They are of African-American descent and race. Both are registered voters. Each has run for

election

— unsuccessful

ly

— to one of the three “at-large” places on the Dallas City Council. Each has a long history of civic and political involvement.

2. Williams, who resides in Council District 3, ran for Place 9 (at-large) in 1987 and 1989. Crenshaw, who resides in Council District 8, ran for Place 9 (at-large) in 1983, for District 8 in 1984 (in a special election), and for Place 11 (mayor) in 1987 and 1989. Williams and Crenshaw were defeated in these elections.

9

the intervenor

3. The plaintiff-intervenor Ledbetter Neighborhood Association (“LNA”) is an organization composed largely of Mexican-American residents of Dallas. The Ledbetter area is in “far West Dallas” in Council District 1; it is approximately 85% Mexican-Ameriean, and is the largest Hispanic neighborhood in Dallas.

10

4. Henry Martinez and Domingo Garcia are Mexican-American residents and registered voters of the City of Dallas. Martinez is the president of LNA, and Garcia is a member.

the defendant & past cases

5. The defendant in this voting rights case is the City of Dallas. This is not, of course, the first time that federal courts have considered charges that Dallas’ system for electing members of its City Council is unconstitutional or that it violates the Voting Rights Act. See

Lipscomb v. Jonsson,

549 F.2d 335 (5th Cir. April 27, 1972);

Lipscomb v. Wise,

399 F.Supp. 782 (N.D.Tex. March 25, 1975) (Judge Mahon);

Lipscomb v. Wise,

551 F.2d 1043 (5th Cir. May 9 and July 13, 1977);

Wise v. Lipscomb,

437 U.S. 535 , 98 S.Ct. 2493 , 57 L.Ed.2d 411 (June 22, 1978);

Lipscomb v. Wise,

583 F.2d 212 (5th Cir. 1978);

Heggins v. City of Dallas,

469 F.Supp. 739 (N.D.Tex. Feb. 20 and 22, 1979) (three-judge court); and

City of Dallas v. United States,

482 F.Supp. 183 (D.D.C. Dec. 7, 1979 and Feb. 25, 1980) (three-judge court).

census data

6. According to the 1970 census, the City of Dallas had 844,401 citizens; 65% were white; 25% were black; and 10% were Mexican-American. 551 F.2d at 1045 (5th Cir.1977); 399 F.Supp. at 784-85 (Judge Mahon 1975).

11

In 1975, 93% of all African-Americans in the City of Dallas resided within the “inner-city area” (or “ghetto”) described by Judge Mahon in

Lipscomb v. Wise,

399 F.Supp. at 785 . However, the Mexican-Americans were “diffused and spread out through all areas of the City.” 399 F.Supp. at 792-93 .

7. According to the 1980 census, the City of Dallas had a total of 904,078 residents; 61.42% were white (555,270), 29.38% were African-American (265,594), and 12.29% were Mexican-American (111,083). The City’s “18-years and over” voting-age population was 67.04% white, 25.34% African-American, and 10.10% Mexican-American.

*1332

8. In 1986, according to the Census population estimate for that year, Dallas had a total of 1,003,511 residents; 47% were white (471,650), 30% were African-American (301,053), 18% were Mexican-American (180,632), and 5% were Native & Asian-American (50,176). Theoretically, the 1986 combined black and Hispanic population would form almost 4 of the 8 single-member districts under the 8-3 systems and almost 7 districts under a 14-1 plan; naturally, this calculation “takes no account of the geographic distribution of the minority population” in the City.

Terrazas,

581 F.Supp. at 1334 .

12

B.

History of the 8-3 System (1856-1980)

9. The City of Dallas was chartered in 1856. From at least 1876 until 1907, Dallas was governed by a City Council with a mayor elected at-large and with “aider-mans” who were either elected at-large or from single-member districts.

13

1907: the commission form of government

10. In 1907, the Dallas City Charter replaced the “alderman-single member ward” system with a “commission” form of government. Under it, the mayor and four commissioners were elected at-large for terms of two years.

11. This charter contained a section entitled

“Segregation of the Races”

— which authorized the City Council to pass ordinances “to provide for the use of separate blocks for residence, places of abode, places of public amusement, churches, schools, and places of assembly by members of the white and colored races.” 399 F.Supp. at 787 (Judge Mahon 1975).

12.

Under the commission system established by the 1907 Charter

— which

lasted for some 24 years

— no

“blacks [were] elected to the Dallas City government. ”

399 F.Supp. at 787 (Judge Mahon 1975). The same was true with respect to other minorities, including Mexican-Americans.

1931: the council-manager form of government and the “6-3 at-large system”

13. In 1931, Dallas adopted a home rule charter which established a “council-manager” form of government. Under it, “City government is administered by a City Manager,” who is the “chief administrative and executive officer of the City.” The mayor “merely presides over council meetings and represents the City. He has no legislative powers

qua

mayor. He has no veto powers.” 551 F.2d at 1048, fn. 2 (5th Cir.1977).

14

14. Under this 1931 Charter, there were 9 members of the City Council; all of these were elected for two-year terms on at-large, city-wide basis — but the “candidates for Districts 1, 2, 3, 4, 5 and 6 [were] required to be bona fide residents of the corresponding six districts of the City.” The 9 at-large members of the Council elected the mayor.

15. Under this “6-3 at-large system,” City Council election ballots contained nine

*1333

numbered “places,” one for each council seat, and all qualified voters in the City could cast one vote for each place. To be elected, a candidate had to receive a majority of the votes cast for his place.

16. This 1931 Charter also contained the

“Segregation of the Races”

section, under which the City Council could provide for segregation of the “negro race” with respect to housing, churches, schools, parks, etc. And, in 1937, the all-white City Council passed an ordinance requiring “separate spaces in commercial motor vehicles for white and black passengers.” 399 F.Supp. at 787 (Judge Mahon 1975).

17. In 1938, a survey by the Dallas City Manager specified the areas of the City that were reserved for whites, for “Negroes,” and for “Mexicans.” This 1938 survey recommended “one of the Negro slum areas” for the first low-income public housing project in Dallas (a “Negro housing project”). And, it made this recommendation concerning a low-income “Mexican housing project”:

“Due to the zoning classification, the high value placed on the property and its future use as industrial property, this

[the ‘Little Mexico’ area] is not a desirable location to house the Mexican slum dwellers.

The Mexican project should be removed from this immediate area but should be located as near as possible to the district in which they now reside.”

15

18.

Under the 6-3 at-large, city-wide system established by the 1931

Charter—

which continued for some 37 years

— no

“blacks [were] elected to the Dallas City government. ”

399 F.Supp. at 787 (Judge Mahon 1975). The same was true with respect to other minorities, including Mexican-Americans.

1949: direct election of mayor

19. From 1931 to 1949, the mayor was elected by vote of the 9 at-large members of the City Council. Then, in 1949, the Charter was amended to provide for direct election of the mayor by the voters — just as Dallas had done in the first 75 years of its history (1856-1931). In 1951, the first mayor was elected under this 1949 amendment.

16

20. This Charter amendment in 1949

did not

delete the

“Segregation of the Races”

section from the Dallas City Charter. In 1942, the all-white City Council adopted a resolution listing “the requirements which a taxi cab owner must have met before the cab would be permitted to carry Negro passengers.” And, in 1961, the all-white Council “agreed to contract for the engaging of ambulance service and burial of Negro paupers.” 399 F.Supp. at 787 (Judge Mahon 1975).

17

1950: joint report on Negro housing

21. In 1950, the “Report of Joint Committee on Negro Housing” — prepared by the Dallas Chamber of Commerce, the Dallas Citizens Council, and the Dallas InterRacial Committee — found that “the shortage of housing for Negroes in Dallas is acute and critical”; that “serious tension has resulted, not only among the colored people, but also among a considerable portion of our white population”; that some of the “present Negro residential districts are ‘hemmed in’ and cannot possibly be expanded” without the consequent “displacement of white residents”; that this “makes for forced sales and losses, disturbed and dis

*1334

tressed communities, unrest, tension and trouble”; and that “portions of South Dallas particularly have been subjected to this kind of disturbance.”

18

22. This Joint Report, in expressing “sincere approval” of recently-announced plans for a West Dallas housing project that would solve the “Negro Housing Problem,” stated that:

“(a) The Negro housing sections, if carefully zoned and properly restricted by the City or county, will attract Negro families of good character, people who, under proper environment, will make citizens of whom our community can be proud.

“(b) We remind the people of Dallas that if we do not provide home sites for Negroes who want to, and can afford to, buy or rent suitable and decent homes, the alternative is terrible overcrowding, dissatisfaction, disease, tension resulting from Negroes buying into white neighborhoods, and many other serious consequences ____

“The Committees feel that the only satisfactory and permanent solution to this problem can be realized where there is racial segregation.

It is the opinion of the Committees that this basic factor is recognized by the Negro leadership of our community,

so long as segregation in the sense that it is applied here does not mean discrimination.

”

The 1950 Joint Report also stated “that Dallas is fortunate in having a very high type of Negro leadership, the leaders being men of intelligence, vision, and a fine sense of civic responsibility.”

19

23. Accordingly, the mayor of Dallas— in a letter dated Sept. 25, 1950 — requested the Dallas Housing Authority (“DHA”) to annex the “West Dallas slums” for the construction of the largest low-rise public housing complex in the nation: the 3500 unit West Dallas Project. The City Council authorized the mayor to send this request.

20

1959-1965: defeat of black candidates because of white bloc voting in “city-wide, at-large” elections

24. In 1959, less than 10 years after this Joint Report on Negro Housing, a black candidate ran for election to City Council District 3. His opponent was white. The black candidate “polled some 87% of the votes from the above-described inner city [in which 93% of all blacks in Dallas reside]. His white opponent polled some 73% of the vote from the non-minority area. The result, when translated into vote totals, gave the white candidate a 65% total of all votes cast and made him the election winner.” 399 F.Supp. at 785-86 (Judge Mahon 1975).

25. Some context is given to this 1959 election by the 1960 decision of a Dallas federal judge in

Borders v. Rippey,

184 F.Supp. 402 (N.D.Tex.1960). In this school desegregation case, the judge — five years after

Brown v. Board of Education,

349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955)-considered only those plans for the integration of Dallas public schools “that will call for the least worry and confusion.” This extraordinary opinion underscores Judge Mahon’s finding that white bloc voting defeated the black candidate in the District 3 race in 1959:

“We have those among the whites of our City of Dallas who favor integration and are fairly enthusiastic in favor of it. That number is not so great, but they are here. We have some of our Negroes who are being used and are in good faith no doubt plaintiffs in this litigation. We

*1335

don’t think they represent a majority of the Negro population. But let’s give integration in Dallas a chance that it is not having elsewhere.

“Some educator has advanced the following plan which has an appeal: That the

school authorities set aside schools within the city limits in which all those of either race who desire integration may be enrolled by placement arrangement and transportation given them to that school

and that other like schools for different grades be set aside maybe elsewhere in the city____ If the plan proved popular, then additional integrated schools would through the years follow, not more than 12 years.

“... This plan [of desegregation by choice] would ... give a test of the success or failure of integration. There is at present a good feeling among the two races in Dallas, somewhat impaired by the recent agitation over the nation, but we have not so far had any open eruption and good will is perhaps here to a better degree than at many other places.” ( 184 F.Supp. at 417 ).

21

See

Tasby v. Wright,

520 F.Supp. 683 , at 687 and fn. 1 (N.D.Tex.1981), for the history of the

Borders

case and other early Dallas school desegregation suits.

26.In 1961, a black candidate ran against two white opponents in Council District 3. “Here, the black candidate played the role of spoiler, forcing a run-off between his two white opponents. In the first election the black candidate garnered 81% of the black area’s votes. In the white areas he gathered a scant 15%. The relative percentages left him as low man in the three-way race and eliminated him from the run-off.” 399 F.Supp. at 786 .

27. Some context is given to this 1961 election by a referendum called in 1962 in opposition to the construction of an additional 3,000 units of low-income public housing in Dallas. The City Council endorsed this referendum, and opposed any new public housing for Dallas, despite the fact that housing was critically needed for the poor in this City. In the resulting campaign, there were objections because the 3,000 units

were not

going to be placed in West Dallas — and numerous ads raised the specter that this housing would be integrated and placed in “white neighborhoods.” This anti-public housing referendum passed.

22

28. In 1963, a black candidate (George Allen) ran for City Council against a white opponent. Although “he carried overwhelmingly all the black votes,” he got “almost no white votes” — so the white candidate won.

23

29. In 1965, a black candidate ran against a white opponent in Council District 8. “This was a two-way race, black versus white. The black candidate carried the black area with 86% of the vote; the white candidate carried the white area with 75% of the vote. The total vote percentage gave the white candidate 62% making him the winner of the election.” 399 F.Supp. at 786 .

24

*1336

30. The result of the city-wide, at-large voting for Dallas City Council — in the four elections from 1959-1965 discussed by Judge Mahon and George Allen (see fns. 23, 24) — “was that,

even though candidates carried black districts by huge majorities, they were regularly defeated by opponents who carried the majority white vote city-wide.”

551 F.2d at 1045 (5th Cir.1977). See also 399 F.Supp. at 790 (Judge Mahon 1975).

1967: the CCA and the “political bargain” concerning the 8-3 at-large system

31. By 1967, the minority population of Dallas was approaching 25% black and 10% Mexican-American. (Finding of Fact 6). Still,

there had not been a single African-American (or any other minority) elected to the City Council under the various “at-large” systems which had continued for over 60 years.

(Findings of Fact 12, 18).

32. This was due, in large part, to the Citizens Charter Association (“CCA”)— which had dominated City elections since the 1930’s, as a “non-partisan slating group.” 399 F.Supp. at 786 (Judge Mahon 1977). As found by Judge Mahon:

“[The] CCA has enjoyed considerable success with its candidates. Testimony shows that in the eight elections held since 1959, CCA endorsed candidates have won in 82% of the races involved. This history shows that of seventy-five CCA endorsed candidates, sixty-four triumphed at the polls. This is an 85% success rate.” ( 399 F.Supp. at 787 ).

25

33.

From its beginning “in the 1930’s” through 1967, the CCA had never endorsed a minority candidate for city council.

Then, during the 1967 elections, there was a campaign bargain “to the effect that the black support for CCA endorsed candidates would be linked to support for a Charter Amendment increasing the size of the City Council from 9 to 11 and that one of the two new seats would go to a black person.” 399 F.Supp. at 787 (Judge Mahon 1975).

34. As Judge Mahon found, “this bargain was apparently kept by all parties. The Charter Amendment was passed, the size of the City Council was increased,” and the CCA supported a black candidate (George Allen) and a Mexican-American candidate (Anita Martinez) in the 1969 Council elections. 399 F.Supp at 787.

1968-1970: the 8-3 at-large system

35. In 1968, the Dallas City Charter was amended by referendum to create the 8-3 at-large system. The City was “divided into eight residential districts”; eight seats on the Council ballot were reserved for candidates who resided in each of the respective districts [Districts 1-8]; three additional Council members, including the mayor, ran without regard to the residence requirement [Places 9, 10, 11]; but voting for all 11 seats was on an “at-large, citywide basis.” 551 F.2d at 1045 (5th Cir. 1977). A “majority of all votes cast for the councilmen, for the place for which the person [was] running, [was] required for election” under the 8-3 at-large, city-wide system. 399 F.Supp. at 785 (Judge Mahon 1975).

36.

By this 1968 referendum, the “Segregation of the Races” section was finally deleted from the Dallas City Charter

26

(Findings of Fact 11, 16, 20, and 27 at fn. 16).

37.

In 1969, George Allen became the first African-American to be elected to the Dallas City Council.

However, this was only because of the CCA support; with the CCA endorsement, there was no white opponent — and Allen was elected, over another black candidate, with 71% of the total

*1337

vote. 399 F.Supp. at 787 (Judge Mahon 1975).

Also in 1969, Anita Martinez became the first Mexican-American to be elected to the City Council;

however, this was only with the support of the CCA— which resulted in Martinez’s defeat of another Hispanic candidate.

27

38. However, another Council race in 1969 indicated that there was no change in the pattern of racial bloc voting in elections involving black candidates who ran without CCA support. The Place 10 race “was three-way involving one black against two whites. The black carried the black area with 42%. The two whites together pulled about 83% of the white area’s vote. No run-off was necessary however because here one of the whites received 59% of the total votes within the City.” 399 F.Supp. at 787 .

39.

The 1970 census showed that Dallas was now one-third minority

— 25% black and 10% Hispanic. (Finding of Fact 6). Therefore, as soon as George Allen became a member of the City Council, he “tried to get the Council to agree to put on a Charter amendment ballot a single-member district plan, and the 8-3 plan was the one [he] suggested.” Allen was not successful in this attempt.

28

1970: the city’s refusal to stop the loss of $31 million for public

housing

29

40. In 1970, HUD advised DHA that it would provide no more federal funding because DHA’s “tenant assignment plan” had, in effect, segregated low-income public housing in Dallas by assigning whites to all-white projects and assigning blacks to all-black projects. HUD specifically asked the City of Dallas for its assistance in forcing DHA to stop this blatant discrimination.

41. However, the City — which was not threatened with any loss of its own federal funds — refused to do anything (even though it forced DHA to change its tenant assignment plan in 1968 when both it and DHA had been threatened with loss of federal funds).

42. Because of this conduct — by both

DHA and the City

— DHA forfeited in excess of $31 million, from 1969 through 1974, because of the refusal to do anything to stop racial segregation in public housing in Dallas. As the City recognized later, in its Report of the Task Force on Public Housing (Jan. 1983), this had a devastating effect upon the condition of low-income public housing in Dallas:

“Until 1969 the Dallas Housing Authority maintained its properties in a reasonable manner and kept its financial reserves high. During this period DHA accepted no federal money for modernization and much equipment and structural components (roofs, doors, windows, etc.) were near the end of their economic life and would soon need replacement. From 1969 to 1974, DHA did not participate in federal modernization programs. Faced with declining real income,

DHA management attempted to preserve financial soundness at the expense of physical maintenance. The physical condition of DHA properties deteriorated rapidly and most projects have never been returned to the condition they were in before

...”

43. In 1974, the first minorities — Adelfa Callejo (Hispanic), Don Johnson (African-American) — were appointed to the DHA Board of Directors. After their appointment, changes were made in DHA’s tenant assignment plan, and HUD resumed DHA’s federal funding.

30

*1338

1971: Lipscomb v. Jonsson

— the

filing & speedy dismissal

44. On March 10, 1971, a suit styled

Lipscomb v. Jonsson

(CA 3-4571) was filed in federal court by African-American residents of Dallas — including

present City Council Member Al Lipscomb

-who claimed “that the at-large system of electing Council Members unconstitutionally diluted the vote of racial minorities.” 437 U.S. at 538 , 98 S.Ct. at 2496 (1978).

45. The plaintiffs in

Lipscomb

sought to enjoin the City Council elections scheduled for April 6, 1971. The district court denied a temporary restraining order on March 11, 1971; then, after a hearing on March 27, 1971, the court “denied the preliminary injunction and, on its own motion, dismissed the plaintiffs’ entire cause of action, presumably for failure to state a claim upon which relief could be granted.” 459 F.2d at 337 (5th Cir.1977). The Fifth Circuit refused to enjoin “the holding of the April 6 [Dallas City Council] elections,” but “without prejudice to the merits of the appeal.” 459 F.2d at 337 (5th Cir.1972).

46. In these 1971 Council elections, the CCA again endorsed George Allen (black) and Anita Martinez (Mexican-American), and they were re-elected. However, just as in 1969 (Finding of Fact 38), the Place 10 at-large race demonstrated that the “voting pattern” had not changed. “Here, two black candidates ran against a single white candidate. Together the black candidates received 60% of the black area vote. The white candidate received 68% of the vote from the white area, which was 63% of the city-wide total. This, of course, made him the winner without the necessity of a runoff.

The Court feels that it is this voting pattern which is the key factor to understanding the dilution present in Dallas.”

399 F.Supp. at 786 (Judge Mahon 1975).

1972: Lipscomb

— the

reversal; elections & racial appeals

47. On April 27, 1972, the Fifth Circuit reversed the district court’s dismissal of the

Lipscomb

suit — and remanded the case for trial.

Lipscomb v. Jonsson,

459 F.2d 335 (5th Cir.1972). In doing so, the Fifth Circuit stated: “We rest our holding on the possibility that the plaintiffs might succeed in proving that the Dallas City Council [at-large] election plan is a purposeful attempt by the white majority or the Dallas City fathers to fence ghetto area residents out of the City Council.” 459 F.2d at 338 .

31

48. In addition, the Fifth Circuit specifically noted that the plaintiffs may be able to prove “that the interests of the Ghetto Area are substantially ignored in determining a slate of endorsees” — and that

“it may also be that ghetto candidates ... are effectively fenced out of the City Council election process by the high cost of city-wide campaigning.”

459 F.2d at 339 (emphasis added).

49. However, the Fifth Circuit ended its April 1972 opinion with a statement which, in effect, told minorities that they would probably have to wait for years before there would be any change in the city-wide, at-large system of electing members of the Dallas City Council:

"... Finally, we need not consider the complex remedial problems conceivably arising from an ultimate determination in the plaintiffs’ favor. There will be time enough to resolve such problems should they ever actually arise.” ( 459 F.2d at 339 ).

50. In 1972, George Allen — the sole black member of the City Council — presented the Council with an 8-3 plan for electing Council members. Under it, there would be three at-large seats and 8 single-member districts; three of these districts had in excess of 60% black population (and one of these had in excess of 65% black population).

This plan was not accepted by the

*1339

City Council.

32

Also in 1972, Paul Rags-dale — a black State Representative from Dallas — presented a 10-1 plan to the Council, which had 4 districts with combined minority population of from 66-77% (and black population of from 57.5-62.5%). This plan, too, “fell on deaf ears.”

33

51. During this period, elections in the Dallas area were marked by overt racial appeals.

34

For example, in 1972, Rose Renfroe, then a candidate for state repre

sentative

— and

subsequently a member of the Dallas City Council

(Finding of Fact 93) — stated in the League of Women Voter’s “Voters Guide” that:

“Evidence of my proven ability is the fact that a white male has not filed against me in this race. My opposition consists of 5 black males.”

35

52. Similarly, in the Precinct 7 Constable’s race, the incumbent used ads describing his African-American opponent in this manner:

“A black man

(no qualifications of any kind)

“A Black Revolutionary

(War on Poverty Board in South Dallas).”

36

53. The City does not dispute the fact that there were racial appeals in elections in the Dallas area from 1970-1972. In response, it claims that these were not campaigns for City Council — and that “there is no evidence in the record of racial appeals in City Council elections for at least 14 years.”

37

This is not true; in addition, it is proper for this Court to consider racial appeals in other elections in the Dallas area besides races for City Council in order to conduct the “searching and practical evaluation of past and present reality” required in a § 2 vote dilution case.

Westwego,

872 F.2d at 1203, 1209 (fns. 10-11).

1973-74: Lipscomb

— waiting

for trial; elections & racial problems

54. After the remand — while the plaintiffs waited for trial — elections continued under the “at-large, city-wide” system for electing members of the Dallas City Council. (Findings of Fact 35, 45.)

55. Before the 1973 elections, the CCA made a “concerted effort to broaden its base,” and a committee “was appointed to seek out qualified candidates that would represent the population of Dallas.”

38

It was necessary for the CCA to select a Hispanic candidate because “it would be pretty difficult to see the idea of a broad-base CCA without a Mexican-American.” The committee chose Pedro Aquirre and he was elected to Place 9 (at-large). Like Anita Martinez, Pedro Aquirre lived in North Dallas.

39

56. In the 1973 elections, the CCA also supported George Allen for an “unprecedented” third term and he was elected. In addition, another African-American — Lucy Patterson — received the endorsement and support of the CCA. She ran “in an all-black contest for [Council District 8] in

*1340

1973. She had a plurality in the general election and went on to win in the run-off with 53% of the vote total.” 399 F.Supp. at 787 (Judge Mahon 1975).

57. After the 1973 elections, Council Member Aguirre — as the result of the racial tension and emotions that followed the shooting death of a Mexican-American (Santos Rodriquez) by a Dallas policeman— introduced a resolution, which was passed by the City Council, recognizing

that there is “unequal law enforcement, dual justice and unequal treatment for the different segments of the community and different races in Dallas.”

399 F.Supp. at 787 .

40

58. Also during 1973 (or early 1974), Judge Mahon entered an order dismissing all of the Mexican-American plaintiffs from the

Lipscomb

case because of their failure to respond to written interrogatories. 399 F.Supp. at 784 .

197j-75: Lipscomb

— the

trial

59. On July 15,

1974

— over

three years after suit was filed

— the trial was begun in

Lipscomb v. Wise.

41

However, after less than two days of testimony, Judge Ma-hon — out of an abundance of caution— “suspended testimony pending resolution of the possibility that the matter might have been one of state-wide rather than local concern, and therefore appropriate for a three-judge court determination.” 399 F.Supp. at 783 (Judge Mahon 1975).

60. On July 16, 1974, a group of Mexican-Americans (Adelfa Callejo, et al.) filed a motion to intervene “on behalf of the Mexican-American citizens in the City of Dallas” — who then represented 8-10% of the total population of Dallas. 399 F.Supp. at 784 .

61. On July 22, 1974, Chief Judge Brown of the Fifth Circuit advised Judge Mahon that the case was “appropriate for a single judge” to hear and that no three-judge court would be convened. 399 F.Supp. at 783 .

62. The trial “was reset for hearing for the week of Dec. 9, 1974.” On the day the trial resumed after the five-month delay, Judge Mahon:

(i) entered an order certifying the case as a class action, with the class “consisting of all blacks residing within the corporate limits of the city of Dallas”;

(ii) denied the pending motion to intervene filed by the Adelfa Callejo group of Mexican American citizens — but with the “specific right of the proposed intervenors to participate in any subsequent hearing that may be held concerning the matter of appropriate relief if the present [city-wide, at-large 8-3] election system was held to be constitutionally defective.” 399 F.Supp. at 783-84 .

63. Testimony was then resumed. And, on Jan. 17,

1975

— almost

b years after the lawsuit was filed

— Judge Mahon issued an oral opinion. In it, he found that the citywide, at-large “system of electing members to the Dallas City Council” — which had continued, in different forms, for almost 70 years (from 1907 to 1975) — was unconstitutional because this system was intentionally adopted and maintained to dilute the voting strength of African-Americans. 399 F.Supp. at 784 .

64. On the same day (Jan. 17, 1975), Judge Mahon also announced that the City had 20 days “to come forward with an apportionment plan which would meet constitutional standards” — and to present it at “the remedy stage” hearing set for Feb. 5, 1975. 399 F.Supp. at 784 .

65. At the time of this trial, “two blacks and one Mexican-American were serving on the eleven-person City Council.

All three had been supported by the CCA. No black or chicano had ever won a Council seat without CCA backing;

few whites had, although Mayor Wise did win as an independent.” 551 F.2d at 1045 (5th Cir.1977) (emphasis added).

*1341

Jan.-Feb. 1975: Lipscomb

— the

remedy phase

66. On January 20, 1975, the Dallas City Council passed Resolution No. 75-0207, which provided:

“Section 1. That the City Attorney ... is hereby directed to notify the Judge of the United States District Court for the Northern District of Texas, Dallas Division, that it is the intention of the majority of this City Council to pass an ordinance ...

which will adopt the present eight residential districts as single member districts,

with one individual Councilman to be elected from each of the districts and living in the district,

and with three individuals, including the Mayor, to be elected at-large with no residential requirements

other than that the candidate live within the City limits of Dallas.”

67. On January 24, 1975, this resolution — and an accompanying breakdown of population by district and race — was filed with Judge Mahon as the City’s proposed remedial plan. Under the resolution, eight Council Members were to be elected from single-member districts of equal population, drawn according to the existing residential district lines (Districts 1-8); the remaining three council members (including the mayor) were to be elected at large (Places 9, 10, 11); and all council members were to be elected by majority vote.

68. In response, the plaintiffs presented two plans. The first (“Plan D”) was a 10-1 plan. Under it, there were “ten single-member districts and a mayor who would be elected at large. Each council person would reside in and be elected by a majority vote of his respective district. The may- or would have no residency restriction.” 399 F.Supp. at 791 (Judge Mahon 1975).

69. Under the plaintiffs’ alternative, the 11-0 plan, “each of the eleven council members were to be elected from a district and ... the mayor would be selected by the council members themselves from one of their number.” 399 F.Supp. at 791 .

70. The Mexican-American intervenors “presented no plan as such, which in their view would alleviate their situation. Generally, they supported the single-member district concept, but testimony clearly showed that in order to have a single-member district plan in Dallas wherein Mexican-American citizens constitute a majority in a single-member district at least twenty districts would be required. Other suggestions included some form of cumulative voting for Council seats, concentric districts around the City and non-contiguous Council districts.” 399 F.Supp. at 792 .

42

71. During this period in 1975, George Allen again presented a plan to the City Council which would create 8 single-member districts, three of which would have black population in excess of 60%.

43

The City Council did not accept this plan. Accordingly, this plan was not presented to Judge Mahon, although he did hear evidence concerning it. 399 F.Supp. at 796, fn. 20 .

72. The

Lipscomb

remedy hearing began on February 5, 1975, with Judge Ma-hon’s statement that the purpose of the hearing was “to determine the constitutionality of the new proposed plan by the City of Dallas.”

73. The population variance of the 8 single-member districts under the City plan was not in issue. However, there was “objection as to the lack of precision in district boundaries.” The City “made certain changes in the district lines” and, on Feb. 8, 1975 — the final day of the remedy hearing — tendered its modified plan “to meet these objections.” 399 F.Supp. at 791, fn. 9 .

74. The demographic pattern of the eight single-member districts in the City’s reapportionment plan finally submitted to Judge Mahon (and later the subject of a

*1342

“preclearance” lawsuit under the Voting Rights Act) was as follows:

District Total Population Percent Black Percent Mexican-American

1 105,559 2.08 7.63

2 105,529 25.90 20.00

3 105,759 5.96 7.00

4 105,676 3.63 3.20

5 105,433 .26 10.60

6 105,604 73.60 7.20

7 105,353 .40 5.00

105,448 87.30 3.44

75.On February 8, 1975, at the conclusion of the

Lipscomb

remedy hearing, Judge Mahon announced in an oral opinion that he would accept the City’s mixed plan of 8 single-member districts and 3 át-large seats (including the mayor). However, Judge Mahon stated:

“I’m not saying it’s the best plan. It’s not even the plan that this Court would have drawn.

But this Court’s not in the plan-drawing business. That’s the legislative duty.” 437 U.S. at 543, fn. 7 , 98 S.Ct. at 2499, fn. 7 .

76.On February 10, 1975, the Dallas City Council passed Ordinance 14800, which provided:

“Section 2. As a result of the decision of the United States District Court for the Northern District of Texas in the case of

Albert L. Lipscomb, et al. v. Wes Wise, et al.,

CA3-4571-E, [ 399 F.Supp. 782 ] and this Ordinance enacted pursuant thereto, only the qualified voters residing within Districts 1, 2, 3, 4, 5, 6, 7 and 8 shall be eligible to vote for a candidate for Member of Council, Place Numbers 1, 2, 3, 4, 5, 6, 7 and 8, respectively. Every qualified voter of the City shall, in addition, be eligible to vote for a candidate for Place Numbers 9, 10 and 11.”

March 1975: Judge Mahon’s opinion

77. On March 25, 1975, Judge Mahon issued a written opinion which elaborated upon his earlier oral findings concerning both liability and remedy.

Lipscomb v. Wise,

399 F.Supp. 782 (N.D.Tex.1975).

78.

As to liability,

Judge

Mahon

— with

out using these exact terms

— clearly held that the black plaintiff class in

Lipscomb

had established the three “threshold” requirements that were later defined in

Thornburg v. Gingles,

478 U.S. 30 , 106 S.Ct. 2752 , 92 L.Ed.2d 25 (1986). Specifically, Judge Mahon held:

(i) That the black population of Dallas was “sufficiently large” (25% of the total population) and was “geographically compact” (93% reside in the “minority or inner-city area”) to constitute a majority in one or more single-member districts. 399 F.Supp. at 785 .

(ii) That the black population was “political cohesive,” as demonstrated both by testimony and by the analysis of voting patterns in the City Council elections discussed in his opinion.

(iii) That the white majority in Dallas votes as a bloc to enable it — in the absence of “special circumstances”

(such as the CCA endorsement of George Allen and Lucy Patterson (blacks) and Anita Martinez and Pedro Aquirre (Hispanics))

— to defeat the preferred candidate of the black citizens of Dallas. See Findings of Fact 24 (1959), 26 (1961), 28 (1963), 29-30 (1965), 37-38 (1969), 46 (1971). 399 F.Supp. at 785-87 .

79. Therefore, Judge Mahon specifically concluded: “This lesser degree of opportunity [for blacks to meaningfully participate in the election process in Dallas] is best shown by the voting pattern I have found to exist for the City:

‘Black voters, that is, those residing in the inner-city area, vote for black candidates, giving them at least a plurality, and usually a majority of their votes, and the white community, the non-minority voter tends not to vote for the black candidates.’

“This is dilution. In other words,

when all members of the City Council are elected at-large, the significance of this pattern of blacks carrying their own areas and yet losing on a city wide basis is that black voters of Dallas do have less opportunity than do the white voters to elect councilmen of their choice.”

399 F.Supp. at 790 .

80. In contrast, Judge Mahon made no such findings with respect to the Mexican-American intervenors. Instead, he stated that their motion to intervene

as to the liability issues

had been denied because:

*1343

“The testimony previously presented to this Court shows that this [Mexican-Ameriean] class represents approximately 8% of the population of the City of Dallas, the housing pattern is such that they are spread throughout the city limits of Dallas, and are not a predominant factor in any concentrated census tract groups.” 399 F.Supp. at 784 .

81.

As to remedy,

Judge Mahon recognized “that while single-member districts are not constitutionally mandated, they are definitely the preferred approach” — but that

“this preference may yield, however, where particular circumstances justify a variation.”

399 F.Supp. at 792 (emphasis added).

82. Then, Judge Mahon found two factors that “would justify such a variation” and his approval of the City’s mixed 8-3 plan: (i) a “consideration of the impact that any plan would have on the Mexican-American citizens of Dallas, intervenors in this cause,” and (ii) “the legitimate governmental interest to be served by having a city-wide viewpoint on the City Council.” 399 F.Supp. at 792 .

83. As to the first factor, Judge Mahon reasoned that Mexican-Americans would realize a greater “benefit” under the City’s 8-3 mixed system than in a pure single-member district plan

because of the existence of the CCA and its slating process for City Council elections.

Specifically, he reasoned:

(i)That “Mexican-American citizens of Dallas have suffered some restrictions of access to the political processes within the City, but that this restriction does not amount to present dilution [as in the case of blacks]” — and it “would not be alleviated by the institution of exclusive single-member district voting.”

(ii) That the “operation of white-dominated slating groups,” like the CCA, permit “Mexican-American citizens ... to operate in a ‘swing-vote’ manner and give them opportunity they might not otherwise have had” — because they must, with “lesser numbers” and “their diffuse resident patterns,” form coalitions with “either blacks or whites in order to maintain political stability.”

44

(iii) That, therefore, “Mexican-American citizens will, under the [at-large seats in the] 8-3 plan, have a heretofore unavailable flexibility and greater opportunity to participate in the political life of Dallas.” 399 F.Supp. at 792-94 .

45

84.Judge Mahon’s opinion

did not

give any consideration as to whether the “high cost of city-wide campaigning” would preclude blacks or Mexican-Americans from running successful campaigns in the three at-large districts without CCA backing. (Finding of Fact 48).

46

However, the following testimony

47

was presented to Judge Mahon on this issue:

(i) Council Member

Adlene Harrison

(white) testified that she favored the 8-3 mixed plan because she “wanted some at-large seats” realizing that Mexican-Americans don’t have “enough population ... or registered voters in any one district to insure themselves a place on the Council.” She also testified that she thought a Mexican-American candidate could win an at-large seat without the CCA endorsement — but she could not cite any instance where this had been

*1344

done, and

she acknowledged that “minority groups would be in fact taking a chance to assume that they could, in fact, have a shot at one of those three at-large seats.”

48

(ii) Council Member

George Allen

(African-Ameican) testified that he could not have won an at-large election without the support of the CCA;

that he was sure that no black or Mexican-American could be elected to an at-large seat without CCA endorsement;

that the City’s 8-3 plan would guarantee two black representatives from Districts 6 and 8, but that a Mexican-American would have to be “in the good graces of the CCA” to be elected at-large;

that the “main reason that [he] wants single-member districts that guaranteed” two black members on the City Council was because there was no “guarantee” what the CCA might do in the future;

and that, because of this uncertainty about the CCA, it was “not unreasonable for the Chícanos to want single-member districts that would guarantee brown representation” on the City Council.

49

(iii) Council Member

Pedro Aguirre

(Mexican-American) testified that Hispanics needed “some at-large spots” because no single-member district could be drawn for them; that “obviously, [he] couldn’t have been elected [at-large] without [the] support and endorsement” of the CCA; and

that no Mexican-American could be elected to a Council at-large seat without the help of the

CCA.

50

(iv) Mayor

Wes Wise

testified that Aguirre convinced him in a Council meeting that “the two

other

at-large places would give a better opportunity for a Mexican-American to be elected” to the Council; and that he felt that a

black or Mexican-American could win an at-large council seat only with the CCA support or with the endorsement of a mayor who actively supported the minority candidate

(and who “won [the mayor’s race] overwhelmingly”).

51

Accordingly, the testimony before Judge Mahon was really established that no black or Mexican-American could win an at-large seat without the endorsement and support of the CCA. This, of course, is consistent with Judge Mahon’s approval of the 8-3 mixed plan because Mexican-Americans could be represented on the City Council only with the assistance of “the CCA and other slating groups.” 399 F.Supp. at 794 .

52

85. With respect to the second factor which “justified” an exception to the “definite preference” for single-member districts, Judge Mahon stated:

(i) That “several members of the present Council and the present City Manager presented the view that having some members of the City Council elected on a city-wide basis would be desirable ... because of the need for a non-sectional viewpoint in resolving matters such as zoning, budgetary considerations, and city planning.”

(ii) That the fact for

“some need

for a city-wide interest to be maintained in the government of Dallas is admitted by plaintiffs in their presentation of the 10-1 plan.”

(iii) That this “Court believes and so finds that there is a legitimate govern

*1345

mental interest to be served by having some at-large representation on the Dallas City Council ... and that three at-large members do not render the City’s plan constitutionally infirm.” 399 F.Supp. at 794-95 .

86. However, there had been no single-member districts in Dallas since 1907, so the testimony presented to Judge Mahon on this second factor was necessarily general. It was also somewhat conflicting. In particular:

(i) City Manager

George Schrader

testified that there is a need “for some on the City Council to possess the perspective which has a political state across the breath of the entire community”; that there were “city-wide issues” in garbage, waste disposal, downtown revitalization, convention centers, libraries, transportation, water systems;

that he would not speculate on whether there was something “intrinsic in the

nature”

of a single-member district representative that caused an “unwillingness to recognize the needs of the community as a whole”;

but that “logic and experience in other cities indicates that it sure does condition the position” of district representatives.

53

(ii) Council Member

Adlene Harrison

testified that there was a need for a broader view on issues such as land use planning, zoning, bond issues; that she disagreed with many zoning decisions made by the “all at-large council”; that she thought it would be “a more implorable situation” where everyone represented a single district; but that this was “just a presumption on her part,” and you could find that “people elected from single-member districts” would be “very responsive” to city-wide issues like zoning.

54

(iii) Council Member

George Allen

(African-American) testified that “at-large people on the council [could] conceivably have a broader view of zoning,” but he didn’t know if this was a "major benefit”;

that City planning is already done “on a city-wide basis” by the City staff;

that it would be

of “extreme

public interest” to have at-large people looking at the budget process on a city-wide basis; and that he saw the at-large members “helping a single-district representative” succeed with a program that might otherwise fail.

55

(iv) Council Member

Pedro Aquirre

(Hispanic) testified that zoning cases may require at-large seats because “if it were a complete single-member district, there would be only one councilman in the hot seat” when the case came before the Council; and that at-large representatives are necessary because “I am firmly convinced that [Mexican-American] needs are going to be met only after the needs of the others have been satisfied.”

56

(v) Mayor

Wes Wise

testified that a city-wide, overall look “is absolutely essential for the mayor” in terms of budgeting, services, state and national legislation — “but I think it is less good [needed] for those other two [at-large] people.”

57

Mayor Wise also testified that “if you have to sacrifice ... the advantages of the at-large system” in having a city-wide view on the Council “in order to get the

*1346

advantages over here of the single-member district system, I ... favor the single-member district”:

“I feel and have said so to the media ... that the single-member district system is not only going to benefit the blacks and Mexican-Americans,

it is going to benefit the white Anglo-Saxon Protestant like myself of average means who will now be able to go out and wear out some shoe leather and knock on some doors and win a campaign rather than on money.

So I think it is going to have some other side advantages that people don’t even really fully recognize yet.”

58

87. With this conflicting testimony, it is not surprising that there was no discussion in Judge Mahon’s opinion concerning the exact number of at-large seats that would be required to satisfy the “need for a citywide” on the 11-person Council — except, perhaps, for the statement that the plaintiffs had “admitted” that there was

“some

need for a city-wide” view by their presentation of a 10-1 plan. Findings of Fact 68-69, 85.

88. After discussing these two factors (Findings of Fact 82-83, 85), Judge Mahon approved the City’s mixed 8-3 plan — despite “some initial concern [about] the relatively high concentration of black voters in District 6

(73.60%)

and District 8

(87.30%)”

and despite the fact

that “it is apparent that different district lines could be drawn under an 8-3 plan to give black voters a majority in three districts.

” 399 F.Supp. at 796 .

59

His opinion concludes:

“The Court is not unmindful of its role in apportionment cases. Absent particularly pressing circumstances justifying at-large voting schemes, I would not hesitate to approve only single-member districts____ In Dallas, under the factual situation presented here, neither all single-member districts or exclusive at-large voting offers the balance which is necessary so that all citizens may have equal opportunity of access to the political process. Both plans offer advantages to each minority group as well as to the white majority. The eight/three plan allows the benefits of both schemes without the potential for mischief which is present under each exclusive plan.” ( 399 F.Supp. at 797-98 ).

April 1975: first elections under 8-3 mixed system

89. On April 1, 1975, the first Dallas City Council elections were held under the 8-3 mixed plan. Two blacks and nine whites were elected to the Council.

Despite the hopes in Judge Mahon’s March 25, 1975 opinion

— that Mexican-Americans would, under the 8-3 system, have “a heretofore unavailable flexibility and greater opportunity to participate in the political life of

Dallas”

— every

Hispanic candidate was defeated in the April 1975 elections.

90. As expected, the two black candidates elected to the City Council in April 1975 were from the two predominantly black

districts

— District

6

(73.6% black) and

District 8

(87.3% black). They were the same African-Americans — George Allen and Lucy Patterson — who had been endorsed in previous Council elections by the CCA.

60

91. In

District 2

(20% Hispanic, 25.90% black), the two Mexican-American candidates together received only 36.67% of the vote — and the white candidate (Nicol) won

*1347

without a runoff with 58.2%. And, in

Place 9

(at-large), the Mexican-American incumbent (Pedro Aquirre) was, despite his CCA support, opposed by a white candidate (Gary Weber). Both local newspapers endorsed Weber. Aquirre received only 35.94% of the vote — -while Weber received 65.05% (the largest percentage in any

contested

race in the April 1975 elections.

61

92. After these results, the Mexican-American intervenors filed a “motion for further hearing” before Judge Mahon. In it, they stated:

“Intervenors would show the Court that under the approved 8-3 plan Mexican-Americans are restricted in their access from entering into the political life of Dallas. It is clear that at-large voting does not offer features which allow greater participation in the political process within Dallas for Mexican-American voters, but in fact dilutes the. vote of the Mexican-American citizen and makes it impossible for a Mexican-American to participate meaningfully in the election process. Intervenors would show the Court that the results of the election of April 1, 1975, and other additional evidence will establish that Mexican-Americans are being denied representation and do suffer from the present dilution of their voting strength and do not benefit to a significant extent from at-large voting.” 551 F.2d at 1048 (5th Cir.1977).

93. Overt racial appeals were made in the

District 1

race in the April 1975 elections. Rose Renfroe campaigned on a platform that opposed the location of any multi-family or low-income housing in this district. (See Findings of Fact 27, 51.) Her opponent, incumbent Charles Storey, who also opposed any more low-income housing in District 1, publicly condemned the raising of the low-income housing issue as a racial appeal, “a subtle way of saying that more minorities will be moving into the area.” He also accused Mrs. Renfroe of running

an anti-busing campaign.

Renfroe defeated Storey in a runoff election for District 1.

62

94.Other Dallas elections besides this one (April 1975) would involve racial appeals, as the school desegregation case—

Tasby v. Wright

-followed a frustrating, tortured path between the district court and the Fifth Circuit.

63

As Judge Barefoot Sanders described in

Tasby v. Wright,

520 F.Supp. 683, 687 (N.D.Tex.1981), shortly after he had assumed responsibility for this case:

“The DISD was no stranger to desegregation litigation when this action was initiated [in October 1970] having been involved in [five] similar lawsuits since the 1955 U.S. Supreme Court decision in

Brown II. Brown v. Board of Education,

349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955). A ‘stair-step’ (one grade per year) plan for desegregation was ordered by the federal court in 1960. Implementation began at the first grade level in the 1961-62 school year ... until 1965, when the Fifth Circuit ordered the process accelerated to include all six elementary grades as well as the twelfth grade. Dual zones were eliminated for junior high schools in 1966 and for the remaining grades ten and eleven in 1967. The ‘stair-step’ plan merely called for the elimination of racial criteria from the school system’s admission policies. The courts did not direct DISD (and DISD did not volunteer) to take affirmative action to eradicate the vestiges of the former statutory segregated system.

So, while it can fairly be said that DISD, like many another school district, moved with maximum deliberation and minimum speed to carry out the 1955 desegregation mandate of the U.S. Supreme Court, it should also be said that the federal court moved at the same pace; DISD did what the Court ordered

— no

more, no less.”

( 520 F.Supp. at 687 ).

*1348

1976: special elections & more racial appeals

95. On April 13, 1976, the 8-3 mixed plan was approved in a referendum, and it became part of the Dallas City Charter. 437 U.S. at 539, fn. 3 , 98 S.Ct. at 2496, fn. 3 .

96. On April 24, 1976, there was a special runoff election to fill vacancies on the Council for Place 11 (mayor) and for Place 9 (at-large).

64

In

Place 9,

Jesse Price campaigned against Bill Blackburn on a platform that included opposition to busing for school desegregation — and opposition to any court order requiring busing — saying he intended to “hang Blackburn’s stand on busing around his neck.” Blackburn defeated Price in the runoff with 67.13% of the vote.

65

97. In

Place 11

(mayor), Robert Folsom campaigned against Gary Weber on a platform that included support for a City Council resolution calling for a constitutional amendment to end busing for school desegregation purposes, as well as City support for private white schools as a way to prevent white flight from the City.

66

98. Folsom also distributed a leaflet charging that Weber was attempting to win the election with a “massive black turnout,” and threatening that “Garry Weber’s South Dallas Machine is going to elect the next mayor” thanks to the efforts of “professional black campaigners who will turn out unprecedented numbers of blacks voting for Weber.” The leaflet charges that Weber’s campaign had been “planting lies and rekindling old fires that could set Black/White relations back 20 years.” The same leaflet tells black voters “No one, Black or White, will benefit from the hostilities between the Races [that] Garry Weber’s hate-campaign is trying to force.” Folsom defeated Weber in the runoff with 50.64% of the vote.

67

1977 Lipscomb appeal; next elections under 8-3 plan

99. Although the plaintiffs appealed from Judge Mahon’s decision,

68

no stay was issued — so the April 2,1977 City Council elections were held under the 8-3 mixed system. Just as in 1975, two blacks and nine whites were elected to the Council.

100. Again, the two African-Americans were from the two predominately black

districts

— District

6

(Craft, the incumbent, won over four other black candidates), and

District 8

(Patterson, the incumbent, defeated one other black candidate). Another black candidate (Emerson Emory) lost in an at-large race for

Place 11

(mayor), receiving 62% of the black vote — but only 17.23% of the total vote — with the white winner (Folsom, the incumbent) receiving 70.74%.

69

101.

In these April 1977 elections, there were no Mexican-American candidates.

Just two years earlier, Judge Ma-hon’s opinion had relied heavily upon the opportunity of Mexican-Americans to work with “white-dominated slating groups”—

like the CCA

— in order to be elected to the Dallas City Council. However, the CCA “did not endorse or support candidates ... in the 1977 election.” It was defunct — and it has never been replaced by any other “slating group in Dallas.”

70

*1349

102. Circumstantial evidence supports a finding that Rose Renfroe, the incumbent in

District 1,

continued to make overt racial appeals concerning school busing in this election — just as she had done in 1975 and in her support of Folsom in his 1976 race against Weber.

71

She was defeated in a runoff by Don Hicks, who received 64.72% of the vote.

103. There was also a special election for

Place 10

(at large) on Nov. 8, 1977. The black candidate (Wilkerson) received 8.73% of the total vote; the two Mexican-American candidates (Montemayor, Medrano) together received 14.16%; and the two leading white candidates (Bartlett, Baldwin) together received 68.44%> of the total vote. Bartlett won the runoff with 56.8%>.

72

1977-78: Lipscomb

— the

reversals

104. On May 9, 1977, Judge Mahon’s decision — under which City Council elections had been held in 1975, 1976 and 1977 —was reversed by the Fifth Circuit.

Lipscomb v. Wise,

551 F.2d 1043 (5th Cir.1977). The Fifth Circuit held that the “mixed” 8-3 plan was not

per se

unconstitutional, but that there was no evidence to support Judge Mahon’s finding that the “special circumstances” concerning the Mexican-American population in Dallas warranted an exception to the “preference for single-member” districts in court-ordered reapportionment plans. Accordingly, Judge Ma-hon’s approval of the 8-3 system was reversed as “an abuse of discretion.” 551 F.2d at 1047 . In this regard, the Fifth Circuit emphasized:

“The major difficulty with the district court’s decision that a mixed plan would improve Mexican-American access to the political process is that there has never been a determination that their access has been unconstitutionally impaired. At the liability stage of the trial, there was no evidence presented concerning the voting rights of the dismissed chicano plaintiffs____

“... Shortly after the trial court judgment an election was held at which a member of the [Mexican-American] class was defeated for one of the at-large posts.

73

Thereafter, counsel for the Mexican-American intervenors filed a motion with the trial court for a further hearing as to the correctness of the trial court’s order approving the eight/three City Council ...

“Thus,

it will be seen that by pleadings filed by them, a class for whose benefit the trial court sought to act, has not only disclaimed the ‘benefit’ but also denied the basis of which it rests.”

( 551 F.2d at 1047-48 ) (emphasis added).

105. Accordingly, the Fifth Circuit “reversed and remanded with instructions for the district court to require the City to reapportion itself into an

appropriate

number of single-member districts for the purpose of holding City Council elections. Should the City fail to propose an acceptable plan, the court shall formulate its own plan.” 551 F.2d at 1049 .

74

106. Unlike Judge Mahon, the Fifth Circuit discussed the method by which the Dallas mayor was to be elected. It stated: “No showing has been made as to the City’s preference for the election of a may- or if the City is to operate with an 11 member council chosen by districts. Under the present plan, he is required to be the city-wide candidate for ‘position’ No. 11 of one of the at-large posts.

The City may provide for the election of the mayor by

*1350

general city-wide election or by election by City Council.”

551 F.2d at 1048-49 .

107. However, on August 30, 1977, the Supreme Court stayed the Fifth Circuit’s mandate, leaving Judge Mahon’s decision in effect pending the appeal before the Supreme Court. Then, on June 22, 1978—

over seven years after the Lipscomb case had first been filed

(March 10, 1971) — -the Supreme Court reversed the Fifth Circuit, holding that it erred in viewing the 8-3 system as a “court-ordered plan” instead of a “legislative plan.”

Wise v. Lipscomb,

437 U.S. 535 , 98 S.Ct. 2493 , 57 L.Ed.2d 411 (1978). The Court reasoned:

(i) in the absence of exceptional circumstances, a federal court which imposes a remedial reapportionment plan

must

use single-member districts only;

(ii) but a “legislative body,” such as a City Council, may use a mixed system— like the Dallas 8-3 plan — when it tries to remedy an at-large system which has been declared unconstitutional. ( 437 U.S. at 539-41, 543 [ 98 S.Ct. at 2496-97, 2498 ) ].

Therefore, the Supreme Court concluded that Judge Mahon was approving the 8-3 system as a “legislatively enacted plan”— although “there are some indications in the District Court’s opinion that it was striving to satisfy those rules governing federal courts when they devise their own reapportionment plan.” ( 437 U.S. at 543 , 98 S.Ct. at 2498 ).

75

108. During this appeal, the State of Texas had become subject to § 5 of the Voting Rights Act.

76

42 U.S.C. § 1973c. Accordingly, the Supreme Court remanded to the Fifth Circuit for consideration of these issues: whether § 5 of the Voting Rights Act applied to Dallas City Council elections; and, if so, the impact of this Act upon the 8-3 “legislative” system approved by Judge Mahon.

109. In view of this disposition of

Lipscomb,

the Supreme Court did not consider the plaintiffs’ claims that the Fifth Circuit “also erred in holding that the alleged effect. of all single-member districts on the representation of Mexican-American voters and the desirability of permitting some city-wide representation

did not

constitute special circumstances justifying departure from the preference for single-member districts in remedial reapportionments conducted by federal courts.” 437 U.S. at 546, fn. 9 , 98 S.Ct. at 2500, fn. 9 .

110. The case returned to the Fifth Circuit. There, the parties “consented to the entry of an order ... to the effect that section 5 of the Voting Rights Act

did apply”

to the 8-3 system adopted by the Dallas City Council, so that “preclearance” was required under the Act. Accordingly, on Nov. 6, 1978, the Fifth Circuit remanded

Lipscomb

to the district court.

Lipscomb v. Wise,

583 F.2d 212 (5th Cir.1978).

111. This meant that,

after eight years of hotly-contested litigation, the City of Dallas could not “legally” put the 8-3 system into effect until it obtained the “preclearance” required by § 5 of the Voting Rights Act.

Of course, this was somewhat academic — to say the very least — since City Council elections had been held under the 8-3 plan in 1975, in 1976 and in 1977 in accordance with Judge Mahon’s decision.

77

*1351

1978-79: the “preclearance”

112. There were two alternatives for obtaining the required “preclearance” under the Voting Rights Act. 42 U.S.C. § 1973c. The first was to obtain approval from the Attorney General. The second was to file suit in the United States District Court for the District of Columbia seeking a declaratory judgment from a three-judge court.

City of Dallas v. United States,

482 F.Supp. 183, 184 (D.D.C.1979).

113. The City of Dallas, choosing the second alternative, filed a declaratory judgment suit in the District of Columbia on Sept. 5, 1978. It sought approval of the 8-3 mixed plan adopted by the City Council on Feb. 10, 1975 (Finding of Fact 76) and approved as a Charter amendment on April 3, 1976 (Finding of Fact 95).

78

As would be expected from the controversial history of the 8-3 plan, representatives of black and Mexican-American citizens of Dallas intervened in this suit to oppose the City’s request for preclearance. 469 F.Supp. at 740-41 (three-judge court).

114. In this declaratory judgment suit, the City specifically admitted that blacks were sufficiently large and compact to constitute a majority in

at least

two of the single-member districts. Specifically, the City stipulated:

(i) that according to 1970 census data, “approximately 93% of all the black residents of Dallas are concentrated in a predominately black inner-city area.”

(ii) that “approximately 85% of Dallas’ minority residents live in council district [6 and 8] represented by minority council members.”

79

115. In addition, in this declaratory judgment action,

the City admitted that the white majority votes as a bloc to enable it to defeat the minority’s preferred candidate.

Specifically, the City stipulated:

“In Dallas City Council elections in which black candidates participated, racial bloc voting resulted in their defeat.

“Black City Council candidates who carried the innercity area by large majorities were defeated by white opponents who obtained majorities in the more populous white residential areas of the city.”

80

116. The City of Dallas filed a motion for summary judgment in this declaratory judgment suit — on the grounds that no “preclearance” was required for the 3 at-large places in the 8-3 mixed system, because these districts were unchanged from the 8-3 “citywide, at large” system held unconstitutional by Judge Mahon. 482 F.Supp. at 184 . After this motion was denied, the City — at the suggestion of the D.C. Court — began negotiations with the Attorney General concerning a “new” 8-3 plan. 482 F.Supp. at 185 .

117. The regular City Council elections were scheduled for April 1979. However, on Feb. 1, 1979, suit was filed in Dallas to enjoin these elections until the City had obtained preclearance of the 8-3 mixed plan.

Heggins v. City of Dallas,

469 F.Supp. 739 (N.D.Tex.1979). In this suit, the City conceded that it could not “hold elections for the 8 single-member places without § 5 preclearance.” However, it contended (as it had before the D.C. Court):

“...

that no preclearance is necessary for the three at-large places,

and that it may, therefore, proceed to hold elections for those three seats. Prior to

*1352

the decision in

Lipscomb v. Wise,

Dallas elected all of its eleven council members to at-large places.

The City contends that the current at-large places are unchanged from three at-large places that were in effect

before

Lipscomb v. Wise

and before November 1, 1972, and that, therefore, these three places are not subject to the Voting Rights Act.” ( 469 F.Supp. at 741-42 ) (emphasis added).

118. On Feb. 20, 1979, the Dallas three-judge court rejected this contention — and the City’s attempt to bifurcate the 8 single-member districts from the 3 at-large places — and enjoined the April 1979 City Council elections. 469 F.Supp. at 742-43 . The

Heggins

court stated:

“We feel certain that the District of Columbia court will proceed with all due speed toward resolution of the claims before it, and pending that resolution, we feel that the status quo should be maintained.” ( 469 F.Supp. at 742 ).

Despite this judicial optimism, the Dallas City Council elections would be delayed for nine months. (Findings of Fact 127, 134).

119. On August 15, 1979, the City Council passed two resolutions. In the first, the Council reaffirmed “its strong commitment to and support of the 8-3 plan of electing members” to the Dallas City Council; in the second, the City Attorney was instructed to negotiate with the Attorney General “on the subject of possible boundary negotiations which might in the opinion of the Department of Justice” meet the standards of the “Voting Rights Act.”

81

120. During the negotiations with the Attorney General,

the City Attorney was advised that the 8-3 mixed system could meet the Voting Rights Act standards “provided council boundaries are redrawn so there are 3 districts with at least 68% minority

population.”

82

121. On Sept. 5, 1979, a public hearing was held “to

receive

comments on the alternatives for reapportionment of City Council district boundaries.” Various black and Mexican-American representatives objected to the continuation of

any

at-large districts. An alternative 10-1 plan, with four minority districts of more than 65% total minority population was presented by State Representative Paul Ragsdale (African-American). MALDEF submitted a 11-0 plan, which had 4 districts with over 65% minority population (with one of these having 29.3% Hispanic and 67.73% total minority population).

83

A number of other alternatives were presented at this public hearing.

122. In support of his 10-1 plan, Representative Ragsdale stated:

“The same arguments used to break up the at-large system of voting for State Representatives, the Dallas Independent School District, and the Dallas County Community College District are applicable in the case of the City of Dallas.

There are several arguments which militate against the at-large system of voting. For one thing, it is expensive, which results in basically a media campaign, and therefore, discriminates against candidates with lesser means to run a

race.... A 10-1 plan maximizes the ability of all citizens — in accordance with their numbers — to have their views reflected on the City Council. Our citizens, under our representative form of government, deserve no less.”

84

123. After this public hearing, the City Council selected one of the plans which had been prepared by the City Attorney. It created a third minority district (besides Districts 6 and 8) by increasing the minority population of District 2 from 45.90% (25.9% black and 20% Hispanic) to 69.41% minority (45.11% black and 24.30% Hispanic).

85

*1353

124.On Sept. 19, 1979, the City submitted this “new” 8-3 mixed plan to the Attorney General for preclearance, stating that:

“The submitted changes [in the 8-3 plan] have been adopted to prevent dilution of minority voting strength and to increase minority representation on the City Council.

It is anticipated that the submitted changes will result in the election of three minority representatives to the City

Council.”

86

125.Under the 1970 Census, the racial composition of the 8-single member districts in the 8-3 plan submitted to the Attorney General was:

Percent Mexican-American District Percent Black Combined

8.40% 1 0.35% 8.75%

2 45.11 24.30 69.41

3 0.49 7.60 8.09

4 3.74 3.41 7.16

5 0.45 8.21 8.66

6 80.63 3.04 83.68

7 0.31 4.57 4.88

8 67.48 4.26 71.7

126.On Nov. 19, 1979, the Attorney General granted “preclearance” to the “new” 8-3 plan. His letter stated that “some 12 alternative plans drawn by other parties” have been considered; that “we have considered information concerning post-1970 population shifts” as well as the 1970 census; and “we have noted the changing role of slating groups in city elections as they bear on minority influence.”

87

“As a result of our investigation, we do not find support for the conclusion that the 8-3 plan now before us was adopted for the purpose of discriminating against minority groups on account of their racial or language minority status. Nor can we find that the plan adopted has the effect of discriminating against those groups since, in our view, the position of minorities is enhanced over what it was under the previously existing at-large system. See

Beer v. United States,

425 U.S. 130 [ 96 S.Ct. 1357 , 47 L.Ed.2d 629 ] (1976). The plan provides the minority community a fair opportunity to elect three members of the council and our review of more recent election results suggests that minority voters will have a reasonable expectation of influencing the election of persons to the at-large seats.” ( 482 F.Supp. at 187 ).

127. Following this preclearance, the City Council withdrew the “original” 8-3 plan, “by repealing a City ordinance, and the new [8-3] plan was enacted.” 482 F.Supp. at 184 . The City Council elections were scheduled for Jan. 19, 1980 ( 482 F.Supp. at 184 ) — a delay of almost 9 months because of the stay entered by the three-judge court in Dallas. 469 F.Supp. at 742-43 .

128. The City then moved to dismiss the declaratory judgment suit in the District of Columbia, arguing — with the support of the Attorney General — that the case was now moot. The black and Mexican-American intervenors objected, but to no avail. The D.C. Court held:

"... we determine that

the case is moot because as between the parties, the City of Dallas and the United States, there exists no

dispute____ The City of Dallas had invoked our jurisdiction to determine the legality of the first voting plan [which has been repealed]. Subsequently, during the pendency of that proceeding in this court, the City successfully obtained approval by the Attorney General of the new voting plan (see letter appended hereto). Such approval is one of the two methods provided by the Voting Rights Act for instituting new voting procedures in affected States or political subdivisions. Under the statute the Attorney General’s approval is not reviewable in this court.” ( 482 F.Supp. at 185 ).

129. The D.C. Court also noted that the “Voting Rights Act expressly provides that neither approval by a three-judge court nor the Attorney General shall bar a subsequent action to enjoin enforcement” of the

*1354

new 8-3 plan. Moreover, it showed no sympathy for the intervenors’ argument that “if they are required to bring a suit, it may take considerable time to obtain judicial evaluation of the new voting plan”— because any such delay would certainly not be the fault of the courts, but was merely “a function of the intervenor’s failure to bring an action to test the first [8-3 mixed] plan on constitutional grounds.” 482 F.Supp. at 185 .

Lipscomb: the conclusion

130.This was the conclusion of the decade of litigation over the “at-large system of electing council members in Dallas”— starting with

Lipscomb v. Jonsson

in March 1971 and ending with the D.C. Court’s opinion in February 1980. 482 F.Supp. 183 (D.D.C. Dec. 7, 1979, as amended Feb. 25, 1980). By this time, under the 8-3 mixed system:

... two African-Americans had been elected to single-member districts both in the April 1975 and April 1977 elections, but they were — as expected- — from the two predominately black districts (Districts 6 and 8);

... the only Mexican-American on the City Council at the time of Judge Ma-hon’s decision had been defeated in April 1975 for Place 10 (at-large), and no His-panic was even willing to run in the April 1977 election;

... after refusing repeated requests by blacks and Hispanics, the City Council- — at the insistence of the Justice Department — did create a third minority district by redrawing the lines of District 2 (45.11% black, 24.30% Mexican-American);

and

...

one of the two reasons stated by Judge Mahon for approval of the 8-3 “mixed system” — the “greater opportunity” for Mexican-Americans to be elected to at-large seats with CCA support — no longer existed, because the CCA had become defunct

before

the April 1977 elections.

131.However, the second reason stated by Judge Mahon — the need for some “citywide view” on the City Council — would continue to be asserted, now as

the primary basis

for the 8-3 “mixed” system. And, although there would be no more litigation until this case was filed in 1988, the controversy would continue about the three at-large seats and the lack of adequate minority representation on the Dallas City Council.

C.

The Continuing Reapportionment Controversy (1980-1989)

132.The 1980 census revealed that— when the 8-3 mixed system had been “precleared” by the Attorney General in November 1979 — the two predominately black districts had much higher minority populations than they did under the 1970 census;

District 6

was 82.61% black and 92.49% total minority, and

District 8

was 87.61% black and 91.01% total minority.

88

And,

District 2

was 76.73% total minority (instead of 69.41%), with 33.34% Mexican-American population (instead of 24.30%).

133.Specifically, the 8-3 mixed system for Dallas City Council elections had the following racial composition

based on 1980 census:

Percent District Black Percent Mexican-American Combined

1 19.78 20.91 40.68%

2 43.38 33.34 76.73

3 5.27 10.64 15.9

4 5.32 3.36 8.67

5 4.66 18.46 23.12

6 82.61 9.88 92.49

7 13.89 9.04 22.93

8 87.61 3.40 91.01

1980: the delayed

elections

89

134.On Jan. 19, 1980, Dallas held its first general City Council elections since April 1977.

90

(Findings of Fact 99-103).

*1355

Two blacks, one Hispanic, and eight whites were elected to the Council.

135.

Not a single minority candidate

— black

or Mexican-American

— ran

for any of the at-large places in these January 1980 elections.

136. The two black members were from the two predominately black

districts

— Dis

trict 6

(Elsie Faye Heggins, who ran against four other black candidates, winning a runoff with 50.21% of the vote) and

District 8

(Fred Blair, who was unopposed). Two black candidates ran in

District 1

(40.68% minority), but they received only 5.70% (Lewis) and 6.10% (Davis) of the vote — and one of the two white candidates (the incumbent, Don Hicks) won without a runoff with 64.72%.

137. In

District 2

(43% Black, 33.34% Hispanic), two Mexican-American candidates (Medrano, Hernandez) ran against a 73-year old white candidate (who polled only 14.62%). Ricardo Medrano won the runoff with 54.99% of the vote.

1981: the last elections before

reapportionment

91

138. On April 4, 1981, before the final results of the 1980 census had been received, the regularly scheduled elections for City Council were held. For the second time, two blacks, one Hispanic, and eight whites were elected to the Council.

139. There was only one minority candidate for an at-large place.. Marvin Watts, an African-American, ran against seven white candidates for

Place 11

(mayor); he received only 2.08% of the total vote — and a white candidate (Jack Evans) was elected without a runoff with 72.14%.

140. The two black members were, of course, from the two predominately black

districts

— District

6

(Heggins, facing another black candidate, was re-elected with 68.18% of the vote), and

District 8

(Blair was re-elected with 80.29% over another black candidate). In the third “minority” district,

District 2,

Ricardo Medrano (His-panic) was unopposed and was re-elected.

141. Several months after these elections, Judge Sanders rendered his decision in the Dallas school desegregation case.

Tasby v. Wright,

520 F.Supp. 683 (N.D.Tex. 1981). Basically, he held:

“Today the Court decides that vestiges of state-imposed racial segregation remain in the Dallas Independent School District (DISD). The Court holds that additional systemwide transportation is not a feasible remedy for the existing constitutional violation. The Court believes, however, that effective remedies can be fashioned and directs the parties to prepare and file desegregation plans for the Court’s consideration.” ( 520 F.Supp. at 686 ).

1981-82: the reapportionment war

142. Preliminary reports from the 1980 census indicated that the City of Dallas now had a minority population of 41.7%. (The final census showed a 41.67% minority population — 29.38% African-American and 12.29% Mexican-American. Finding of Fact 7.)

143. Using this 41.7% estimate, in June of 1981 Council Member Elsie Faye Heggins (District 6) introduced a resolution to have the City staff prepare “studies and maps” which would create four City Council “minority districts” — and to have this information distributed to all members of the Council in preparation for the reapportionment of the eight single-member districts.

92

Don Hicks (District 1) immediately moved to table, arguing that (i) the staff did not have time to do this work, and (ii) the census information was not complete in any event.

93

After heated — and sometimes acrimonious — debate, the Heggins resolution was tabled by a 6-5 vote of the Council.

144. Despite this Council vote, the City staff — as early as May 1981 — had already begun preparations for reapportionment of the single-member districts. A May 15,

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1981 memorandum from City Manager George Schrader advised the City Council that it was required “to divide the City into 8 districts of substantially equal population. Under State law, however, the City

may not take any official action using the 1980 Federal Census before Sept. 1, 1981.”

94

145. Accordingly, on Oct. 9, 1981, a lengthy report was submitted to the Council which had been prepared by “the offices of the city secretary, the city attorney, and management services” — and which contained 11 reapportionment plans “to demonstrate the effects of the 1980 census data” and to “serve as a starting point enabling members of the City Council” to request additional information from the staff in connection with “the development and selection of a final plan.” There were five groups of plans (entitled “A” through “E”) attached to this October 1981 report.

95

146. The three “Group A” plans focused “on the comments of the City Council members concerning what each believes to be important for his or her district” and attempted “to accommodate the desires of all of the City Council members to the greatest extent possible.” In substance, they proposed:

(i) the continuation of two predominately black districts — with a slight reduction in the black population and the total minority population of both

District 6

and

District 8.

96

(ii) the continuation of the third minority district' — with a more significant reduction of the total minority population in

District

2.

97

147. The two “Group B” plans attached to the Oct. 9, 1981 memorandum attempted to “create three districts with maximum black concentrations while maximizing the Spanish percentage in District 2.” Specifically:

(i) The

B-1 Plan

proposed three districts that were more than 60% black — by maintaining

Districts 6 and 8

(but with more substantial reductions in black and total minority percentages),

98

and by creating a third black district out of

District 1

(63.08% black, 68.04% total minority)— and a fourth

(District 2)

that would be 53.61% total minority (40.61% Hispanic).

(ii) Similarly, the B-2 Plan proposed three districts that were more than 60% black — although the black population percentages were slightly lower for Districts 1 and 6 than in Plan B-l — and a fourth

(District 2)

with slightly lower total minority population than in Plan B-l.

However, both of the Group B plans would have drastically altered District 1

— the

Oak Cliff District of Council Member Don Hicks

— which

was 40.68% total minority (19.78% black, 20.91% Hispanic) in the existing 8-3 system, based on using 1980 census figures.

148. The two “Group C” plans attempted “to create four districts in which the combined minority population is greater than 65%.” Under these plans,

District 2

would have a slightly increased Hispanic

population

99

— Plan

C-l

(34.77% Hispanic, 65.30% total minority),

Plan C-2

(38.31% Hispanic, 69.68% total minority) — but there would be only one district that had a black population over 57-58%.

149. There was little interest in the Group D and Group E plans attached to the

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October 1981 memorandum,

100

so the Group A, B and C plans became the focus of the reapportionment controversy.

150. As demonstrated by 7 of the 11 plans prepared by the City staff,

it was possible for the Council to create three districts with a black majority of 60-65% and a fourth “swing district” with a minority population in excess of 53%.

However, there was vehement opposition to any such change — particularly from Council Members Don Hicks

(District

1 — Oak Cliff), Max Goldblatt

(District

7 — Southeast Dallas), and Ricardo Medrano

(District 2)

— who did not “intend to have a third [black] district carved from their districts.”

101

151. On Jan. 20, 1982, a public hearing was held “for the purpose of receiving comment from the citizens of Dallas regarding adjustments” in the 8 single-member districts.

102

At this meeting:

(i) 40 people spoke in favor of the B-l Plan, which would have created a third district with a black majority;

(ii) 26 people spoke “in favor of the concept of three black districts without specifying any particular plan”;

(iii) one person spoke in favor of “an additional Hispanic district” and another person spoke “in favor of 4 black districts and 2 Hispanic districts”; and

(iv)

no one spoke in favor of the “Group A Plans,”

which would merely continue the two predominately black districts (6 and 8) and the third district (2) with a combined minority population of from 62.4% to 69.78%.

103

152.The reapportionment controversy which resulted — and which lasted from March 1981 through March 1982, as the City Council held work sessions and meetings to “debate” reapportionment — is recorded in the audio cassettes introduced in evidence.

104

Although there is no transcript of these proceedings, the City’s “preclearance” submission of March 27, 1989 contains a number of newspaper articles that report the bitterness recorded on these cassettes.

105

For example, these are examples of

some

of the acrimony and hostility that took place:

... Several blacks, including Council Member Elsie Faye Heggins, threatened “another lawsuit” if a third “safe” council seat was not created for blacks (April 22-29, 1981 articles).

... Several Council Members told “Ms. Heggins they have no intention of directing the City staff to try to create a third black council seat” and

that they knew this was “a ploy to strike down the three at-large seats”

(May 14, 1981 articles).

... Council Members “Don Hicks, Max Goldblatt and Ricardo Medrano, whose districts now surround the districts of the City’s two black Council Members,” Fred Blair and Mrs. Heggins, said

they will oppose any proposal that “tries to cut up, or destroy the present lines” of their districts

(Oct. 11, 1981 articles; Nov. 10, 1981 articles).

... After a “redistricting workshop punctuated by

sharp exchanges,”

at which

“tempers occasionally flared,”

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most of the eleven “Council Members [said] they will not support any redistricting proposal that establishes three black-majority council districts” (Feb. 24, 1982 articles).

153. Credible testimony at the trial of this case — by persons who were present at these reapportionment proceedings — established that racial tension marked these meetings and that statements like these were also made:

... Oak Cliff (District 1) had to have a white representative on the Council because “Anglos felt extremely uncomfortable being represented by blacks”;

... if District 1 did not have an Anglo member on the City Council, there would be “white flight” and “Oak Cliff would be black within two years”;

... that there could be a third black City Council member if a “qualified” black would just run for one of the at-large seats.

106

154. In early 1982, Fred Blair (District 8) and John Wiley Price (the first black County Commissioner in Dallas County) met with Mayor Jack Evans. Evans said he could not support the creation of a third black district, and that he “would much rather see an African-American run at-large.”

107

155. At a workshop on March 9, 1982, the City Council narrowed its alternatives to three plans derived from those presented by the City staff in October 1981 — Plan A-4 (modified),

108

Plan B-1 (modified) and Plan C-3.

156. At the Council meeting on March 17, 1982, the reapportionment controversy was scheduled for final vote. The audio cassettes introduced in evidence record the acrimony and racial tensions of this meeting.

109

Mayor Evans repeated several times his belief that a black could be elected to an at-large seat, usually in response to statements like these:

... a black cannot be elected at-large because a black candidate cannot raise the $200,000.00 required for an at-large race (Heggins, Blair, Price);

... it is unfair to tell us that a black can win an at-large race (Heggins);

...

it is unfair to have five Council members (including all three at-large representatives) from just two districts in North Dallas

(Heggins, Price);

... the Mayor’s A-4 Plan is a “scheme to continue to oppress blacks and in the City of Dallas and to deny them representation” (Heggins).

Mayor Evans reacted angrily that he resented these accusations and that his modified A-4 plan did not discriminate against minorities.

110

157. At this point, Ricardo Medrano (District 2) moved that the City Council vote on the three plans “at the same time, and no plan [can] be voted on separately.” The results were:

Plan A-4 (modified)

— 7 votes (all white members but Simpson)

Plan B-1 (modified)

— 2 votes (the two blacks, Blair and Heggins)

Plan C-3 (modified)

— 2 votes (Medrano, Simpson)

111

158. Then, this portion of the Council meeting ended with Mayor Evans expressing his “hopes that we will work together” —and

with Al Lipscomb, who was causing a disturbance because of the vote, being forcibly removed from the meeting by security guards).

112

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159.On March 24, 1982, the City Council passed Ordinance 17346, reapportioning the 8 single-member districts on the basis of Plan A-4 (modified). This 8-3 plan had the following racial composition based on the final 1980 census:

District Percent Black Percent Mexican-American Combined

1 20.91 20.56% 41.47%

2 31.78 33.20 64.98

3 3.27 4.90 8.17

4 6.21 2.85 9.06

5 5.74 15.51 21.25

6 74.91 10.01 84.92

7 5.42 7.57 12.99

8 87.39 3.66 91.05

160. The net result of the 1981-82 reapportionment war was this: the five white majority districts remained basically unchanged;

District 6

had its black population reduced to 74.91% from 82.61% (and its total minority population increased from 83.68% to 84.92%);

District 8

had only insignificant changes in its black and total minority population; and

District 2

had its total minority population reduced to 64.98% from 76.73% (but with little reduction in its Hispanic population, which dropped only to 33.20% from 33.34%).

As indicated above, these changes to District 2 were made with the approval of the incumbent, Ricardo Medrano.

(Findings of Fact 150, 152).

161. On March 27, 1982, the City submitted this new 8-3 plan for preclearance under § 5 of Voting Rights Act, stating that the “submitted changes maintain the opportunity for the election of not less than three minority representatives to the City Council.”

113

162. On June 25, 1982, the new 8-3 plan received preclearance from the Attorney General, by letter stating:

“The Attorney General does not interpose any objection to the change in question. However, we feel a responsibility to point out that § 5 of the Voting Rights Act expressly provides that the failure of the Attorney General to object does not bar any subsequent judicial action to enjoin the enforcement of such change.”

114

163. This timing in the approval of the new 8-3 plan was fortuitous, to say the least. Four days later, on June 29, 1982, the revised Voting Rights Act became effective; under its new § 2 standard,

115

proof of “discriminatory effects alone” of the 8-3 system — without regards to whether it was “intentionally adopted or maintained for a discriminatory purpose”— would establish that-the 8-3 system violated § 2 of the Voting Rights Act. 42 U.S.C. §§ 1973 (a) and (b).

1983: elections & the Robinson-Rucker at-large

race,

116

164. On April 2, 1983, City Council elections were held under the 1982 reapportionment. This time, two blacks, nine whites

and no Hispanics

were elected.

165. Ricardo Medrano, the Mexican-American who had won the

District 2

seat in 1980 and 1981 (Findings of Fact 137, 140), was defeated in a runoff by a white candidate (Paul Fielding), who received 52.07% of the vote to Medrano’s 47.93%. With hindsight, Medrano’s defeat was attributed to three “political blunders” he committed during the 1982 reapportionment: agreeing to the reduction of the total minority population of District 2; adding precincts to the district which Medrano thought were heavily Mexican-American, but which were not; and by alienating black voters by opposing their 1982 efforts to obtain a third black district.

117

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166. The two black members were from the two predominately black

districts

— Dis

trict 6

(Heggins, facing another black candidate, won with 86.53% of the vote) and

District 8

(Blair defeated three black and one white opponent with 81.49%). In

District 1,

one of the three white candidates (Jim Hart) won without a runoff with 57.42% of the votes — defeating one Hispanic candidate (Serna — 1.56%) and two black candidates (Giddings — 13.76%; Lewis— 1.56%).

167. In contrast to prior years, there were black candidates in each of the three at-large races. In

Place 11

(mayor), one of the seven white candidates (Starke Taylor) won without a runoff over former mayor Wes Wise with 53.65% of the vote; the two black candidates received 0.38% (Watts) and 0.32% (Wooten).

118

168. With regard to the 1983 mayor’s race, a Dallas Morning News story stated that candidate Wes Wise was “wooing” blacks and needed a large black turnout— and that aides to Mayor Taylor “say privately that they would be satisfied with 40 to 50 percent of the black vote.” In addition, a Dallas Morning News column stated that “Wise has been accused of siding with City Council Member Elsie Faye Heggins on recent municipal issues to solidify his strength in the minority community.”

119

169. In the

Place 10

at-large race, there were four white candidates and one African-American (A1 Lipscomb). Lipscomb received 11.39% of the vote; future-mayor Annette Strauss was elected without a runoff with 70.37%. In this race, there were newspaper articles which identified Strauss as a “civic leader” — but which referred to Lipscomb as a “longtime black activist” and as the “black activist ... plaintiff in the lawsuit that brought the City of Dallas single-member districts.”

120

170. In the

Place 9

at-large race, two black candidates ran against four white candidates. One of the African-Americans was the plaintiff Marvin Crenshaw;

the other was Marvin Robinson

— and

it was because of him that this 1983 at-large race was of great consequence to the black community in Dallas.

171. A meeting of African-American leaders in Dallas had been held early in 1983 with the objective of finding “a consensus candidate to run at-large out of the black community because we had continuously been informed that a black could win an at-large race with the right credentials.”

121

This group sought “one of the best candidates that we could put up, one who had been well-educated, who had [held] very high positions, who had participated in [respected] civic organizations around the City at every level.”

122

At this meeting, Marvin Robinson was selected as the “test case” for the black community.

*1361

172. Marvin Robinson was an

excellent

choice as the “consensus black candidate.” He was well-educated,

123

he was a veteran and a successful business executive,

124

and he had “paid his dues” by being

very active

in civic and communities affairs in Dallas— including service as President of the Black Chamber of Commerce, Co-Chairman of the Tri-Racial Committee in the school desegregation suit, President of the Committee of One Hundred (an organization of black business executives in Dallas), and a member of the Park Board of the City of Dallas. He was also active in the Dallas Assembly, the Dallas Alliance, the United Way and the Summer Musicals — and had served on the Executive Committee of two very important bond issues (the City Arts District and Parkland Hospital). TR. I (150, 152-54).

173. The group of African-American leaders that selected Marvin Robinson as the “consensus black candidate” in early 1983 was also realistic:

“We took a good look at our involvement in the black community and the lack of funds to run the race.

We knew that a black in this town would need $200-250,000 ¡for an at-large race]. We also knew that we lacked the capacity in the black community to raise those kind of funds.

And the only way we were going to raise those funds was to go back to those [white] individuals who we worked with and [with whom] we had tried to develop a rapport or cadre of support ...” TR. I (155).

174. However, Robinson and his supporters found out that this assistance and financial backing — which they expected from Anglo business and community leaders, and other whites they had known and worked with in a myriad of civic and community efforts

125

— was not there.

Although they went back “continuously, time and time again,” Robinson’s campaign was able to raise only $15,739

— and

“the mass of that ... came out of poor black folks’ pockets.” This $15,739, plus another $15,000 borrowed from a bank, was the total amount that Robinson had for his city-wide, at-large campaign for Place 9.

126

175. Robinson’s primary opponent in the 1983 Place 9 race was Jerry Rucker, a white candidate; Rucker was also a lawyer and he had served on the City Planning Commission and on the Zoning Ordinance Advisory Commission. He also had run a construction business in Dallas for “virtually his entire adult life.”

127

176. There were four white candidates and two black candidates in the general election for Place 9. Rucker received 45.45% of the total vote. Marvin Robinson was second with 21.23%, and the other black candidate — the plaintiff Marvin Cren

*1362

shaw — was third with 12.15%.

Robinson and Crenshaw together had received some 90% of the black vote, but only 20% of the white vote.

128

177. In the runoff on April 16, 1983, Marvin Robinson — the consensus at-large candidate of the black community — was soundly “drummed.”

Although Robinson received almost 100% of the black votes, he got only 11% of the white vote;

this translated in 31.78% of the total vote, and Jerry Rucker won with 68.22%.

178.

Since this race by Marvin Robinson in 1983, no serious black candidate has ever run for an at-large seat in the Dallas City Council elections.

Testimony at trial established that blacks are convinced that “this town is not ready ... to elect an African-American in an at-large race” — and that no “African-American in this town is going to acquire the $250,000 that he or she needs to run that kind of race.”

129

1985: council

elections

130

179. On April 6, 1985, the Dallas City Council elections were held (under the 1982 reapportionment). Again, two blacks and nine whites were elected to the Council.

180. The blacks were from the two predominately black

districts

— District

6

(Diane Ragsdale, who was unopposed), and

District 8

(A1 Lipscomb won over two black opponents with 75.02% of the vote).

181. In the

District 2

race, there was one black candidate and one Hispanic. The black (Woods) received 1.60% of the vote, and the Hispanic (May) received 10.17%. There was a runoff between two of the three white candidates — Fielding (36.96%) and Palmer (35.98%) — Lori Palmer won the runoff with 58.13% of the votes.

182. There were no minority candidates in the

Place 9

or

Place 10

at-large races. In

Place 11

(mayor), the only black candidate (Morehead) received 3.01% of the vote, and Mayor Taylor was re-elected with 50.61%. Former Council Member Max Goldblatt ran second with 45.56% — so the two leading white candidates received over 96% of the total vote.

1986: no reapportionment, but agreement on a Hispanic at-large seat

183. There had been no Mexican-American on the Dallas City Council since the lines to District 2 had been redrawn in 1982 — and since Ricardo Medrano had been defeated in the 1983 Council elections. (Findings of Fact 165, 181).

184. This led Mexican-Americans to petition the City Council for reapportionment in 1986. An ad hoc organization called “COMAR” — the Committee for Mexican-American Representation — asked that the 8-3 lines be redrawn to create a possible Hispanic district.

131

As they had before, African-Americans asked for the creation of a third black district.

185. On Oct. 29, 1986, the City Attorney sent Council Members a memorandum describing “alternative district plans that would illustrate the options the City Council might consider in determining the feasibility of establishing new district boundaries” for the April 1987 election.

132

186. Attached to this October 1986 memorandum were 7 plans which included three 65% or more black single-member districts;

133

another plan which included three 60% or more black districts; and a number of plans which would increase both the Hispanic and total minority population of District 2.

134

187.

Therefore, just as in 1982 (Finding of Fact 150), in 1986 the Dallas City Council could have drawn three districts

*1363

with a black majority of more than 60% and a fourth “swing district” with a total minority population in excess of 50%.

188. However, by a 6-5 vote, the Council decided to take no action to reapportion the 8 single-member districts in 1986. Council Member Jerry Rucker gave this explanation of why nothing was done in 1986:

Q. It was the feeling of the Council, then, that two blacks was equitable, it was fair, that there was not a need to increase black representation?

A.

Well, no, but the difference between two and three is not anywhere near the difference between zero and one.

I mean, zero and one was one that was worth doing a redistricting.

The difference between two and three [blacks] wasn’t worth the redistricting [in 1986]

There was adequate expression of the [black] viewpoint....

135

189. Credible testimony at trial

136

established that, after this Council vote, May- or Starke Taylor called a meeting of some Mexican-American leaders; that he told them he would support and endorse a Mexiean-Ameriean for one of the at-large seats in the 1987 elections; and that he would agree “to do everything he could” to see that the Hispanic candidate won, including helping the candidate get financial backing and votes from North Dallas.

137

190. Credible testimony also established that this offer of support was made by Mayor Taylor because “he felt strongly that the Hispanic community was going to sue the City. He felt that they would have a case,” and that “one of the reasons why he was supportive of a Hispanic candidate was to try to delay or prevent a Hispanic challenge to the 8-3 system.”

138

191. In the 1986 general election, John Vance — the successful candidate for Dallas County District Attorney — ran a newspaper ad with his picture next to the picture of his black opponent. (Finding of Fact 168 at fn. 112).

139

1987: council

elections

140

192. On April 4, 1987, the Dallas City Council elections were held. Two blacks, one Mexican-American and eight whites were elected.

193. Of course, the two blacks were from the predominately black districts—

District 6

(Ragsdale defeated one black and one white opponent with 78.91% of the vote), and

District 8

(Lipscomb, with 62.82%, defeated one black opponent).

194. There was no Hispanic candidate in

District 2.

Incumbent Lori Palmer was unopposed and was re-elected with 99.97% of the vote.

195. There were two black candidates in the race for

Place 11

(mayor). However, neither was a serious candidate; the plaintiff, Marvin Crenshaw, received only 0.87% of the vote, and the other black (Morehead) got only 0.09%. Annette Strauss was the leader in the general election (with 43.12%), and she defeated Fred Meyer in the runoff with 55.99% of the vote.

196. The plaintiff Roy Williams ran against two white candidates in the at-large race for

Place 9.

He received 10.21%

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of the total vote, and the incumbent Jerry Rucker was elected without a runoff with 66.58%.

197. Al Gonzalez was the sole Mexican-American candidate in the

Place 10

at-large race. (See Finding of Fact 189, 190). His opponents were four African-Americans and one 76-year old white male (Martin). Gonzalez testified that he had been very successful as co-chair of a 1985 City bond campaign; that there was “a lot of talk ... from the Hispanic community” about the need for a Mexican-American on the City Council; that he had been active in the Hispanic Chamber of Commerce; that he met with Mayor Taylor and businessman Norman Brinker about running for Place 9; that Brinker agreed “to be my chair” and “to try to raise money from the business community”; that businessman W.L. Bankston agreed to serve as his treasurer;

that he knew he couldn’t raise the money for an at-large race from the black or Hispanic communities; but that he hoped to be able to raise some “$150,000 from the Dallas establishment.”

141

198. Gonzalez did, in fact, raise over $173,000 — almost all from “the North Dallas establishment.”

142

With this support, and with no serious white opponent, Gonzalez won the 1987 Place 10 race without a runoff. He received 57.59% of the vote; the white candidate (Martin) received 10.89%; and the four black candidates split the remaining votes. (Of these, Verna Thomas was the leader with 10.72% of the vote.)

199. However, Gonzalez served only one term on the Dallas City Council. Apparently because of health and economic reasons, he decided not to run for re-election in 1979 — and he received criticism from the Hispanic community when he refused to endorse a Mexican-American either for Place 9 or for a single-member district.

143

1988: racial tension, crisis & litigation

200. In early 1988, following a long-period of complaints by minorities over the “deadly force policy” of the Dallas Police Department and the powers of the Police Review Board, two Dallas police officers were shot and killed within a two-week period. The Chief of Police, after the death of the two officers, accused the two black City Council Members (Lipscomb, Ragsdale) of creating an atmosphere of hate and hostility in the City which fostered violence.

144

As this racial tension was described later:

“In early 1988, Dallas experienced a chain of events that devastated the city. The anguish which accompanied the loss of life- — of both citizens and police — made it clear that racial tensions were high and that without some method to openly address those tensions, our City was in danger of continued crisis.” (Pls. Exh. 29, p. 1).

145

201. Pettis Norman — a Dallas businessman, a community leader, and an African-American — gave this description of conditions in Dallas at this time: “severe problems, racial problems, police-community relations problems, [a] community in my estimate coming loose at the seams ...

that’s when “the City really became very angry and hostile and it seemed to split along racial lines.”

146

202. This caused Norman to contact Mayor Annette Strauss and to suggest that a commission should “look at the issues that gave rise” to this crisis:

“... It was my feeling at that time that the police shooting was just a symptom of a much deeper problem. And I thought that as a City we must, once and

*1365

for all, come to grips with what gave rise to those problems, look at the underlying issues:

the issue of minority representation,

the issue of economic participation, the issue of education, the issue of social participation.”

203. Within days of this call from Pettis Norman, Mayor Strauss appointed the

“Dallas

Together” commission to “deal with the difficult task of finding ways to reduce the racial tensions in our community” and to “break down barriers of prejudice, racism and classes.”

She charged this commission “with the task of bringing Dallas together

by identifying the root causes of the racial tensions being experienced in our City” — and “to develop action recommendations which would address the causes, not just the symptoms, of these tensions.” By March of 1988,

“Dallas Together”

had been formed — with some 65 “African-Americans, Hispanics, American Indi

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