Chen v. City of Houston

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20440

EDWARD CHEN, ET AL.,

Plaintiffs,

EDWARD CHEN; JON TAYLOR; EDWARD BLUM;

BARBARA L. THOMAS; AL VERA; KENNETH M. POWERS;

JAMES WHITE; HERSCHEL SMITH; BILL WIENER;

BERNARD LOEBE; CHESTER WRYE; EDWARD ROBERT,

Plaintiffs-Appellants,

versus

CITY OF HOUSTON; BOB LANIER, Honorable; HELEN HUEY,

Honorable; MICHAEL J. YARBROUGH, Honorable;

MARTHA J. WONG, Honorable; JEW DON BONEY, Honorable;

ROB TODD, Honorable; RAY F. DRISCOLL, Honorable;

JOHN KELLEY, Honorable; FELIX FRAGA, Honorable;

JOHN CASTILLO, Honorable; GRACIE GUZMAN SAENZ,

Honorable; JOE ROACH, Honorable; ORLANDO SANCHEZ,

Honorable; CHRIS BELL, Honorable; JUDSON W.

ROBINSON, III, Honorable,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Texas

March 9, 2000

Before GARWOOD, DUHÉ and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiffs-appellants, residents of the City of Houston, filed

this suit claiming that the City of Houston and the individual

members of its City Council (collectively, the City) had violated

the Fourteenth Amendment when they created the single member

districts used to elect nine of the fifteen members of the Council.

They claim that the City’s 1997 redistricting violated the

principle of one-person, one-vote, and that the districts created

constituted a racial gerrymander impermissible under Shaw v. Reno,

113 S.Ct. 2816 (1993). The district court granted summary judgment

for the City. We affirm.

Facts and Proceedings Below

The City is governed by a fifteen-member City Council,

comprised of the Mayor, elected at large, five council members

elected at-large, and nine council members selected through single-

member districts (Districts A through I). The City is required to

redistrict the single member districts every two years, and does so

through ordinances. In the wake of the 1990 census, the City

drafted a new districting plan. The Department of Justice refused

preclearance, and the City responded by drafting an alternative

plan that created two districts with weak majorities of Hispanic

residents. This new plan received preclearance. Although due to

a subsequently reversed district court decision the new precleared

plan was not used in the 1991 elections, see Campos v. City of

Houston, 968 F.2d 446,452 (5th Cir. 1992), the form of that 1991

2

plan was substantially followed in the 1993 and 1995

redistrictings. Neither of these plans was challenged on Shaw v.

Reno grounds, although the City did face litigation from plaintiffs

claiming that the City was required to create additional districts

with Hispanic majorities. See Campos v. City of Houston, 113 F.3d

544 (5th Cir. 1997) (affirming Morris v. city of Houston, 894 F.

Supp. 1062 (S.D. Tex. 1995) granting summary judgment in favor of

the City).

In December of 1996, the City of Houston annexed an area to

the far northeast of the City known as Kingwood. Kingwood had a

population of around 40,000, and some adjustment in the City’s

district boundaries for the 1997 scheduled redistricting was thus

required to avoid unbalancing the population of the districts. The

City drafted a plan placing Kingwood, and the surrounding area that

had previously been a part of District B, into District E. Like

prior City redistrictings, this was conducted in part by using a

computer program that contained racial and ethnic data at the level

of voting precincts. After a debate that included the plaintiffs’

lawyer in this case, the Council adopted this plan by ordinance on

April 9, 1997. The plan contained a maximum population deviation,

when measured by total population, of 8.63%. Measured by total

population, two of its districts had African-American majorities

while two others had Hispanic majorities. It received preclearance

from the Justice Department on July 7, 1997.

3

The plaintiffs launched this challenge to the 1997 districts

on April 9, 1997--the same day the ordinance was adopted--claiming,

among other things, that the districts constituted an impermissible

racial gerrymander and violated the principle of one-person, one-

vote.1 On August 15, 1997, the plaintiffs moved for a preliminary

injunction. This motion was denied on October 3, 1997. On March 2,

1998, the City filed five separate motions for summary judgment.

The district court granted all five motions and issued final

judgment in favor of the City on May 7, 1998. Chen v. City of

Houston, 9 F.Supp.2d 745 (S.D. Tex. 1998). This appeal, limited to

the one-person, one-vote and racial gerrymander issues, followed.

Discussion

The plaintiffs maintain that the district court erred in

granting summary judgment for the City. They argue that they

produced enough circumstantial and direct evidence of the

predominance of race in the City’s districting decision to allow a

reasonable jury to find in their favor. They also claim that the

district court erred as a matter of law when it measured the City’s

compliance with the one-person, one-vote requirement using total

population rather than figures that accurately reflected the

distribution of potentially eligible voters in the City. Though

1

Plaintiffs also contended that the plan violated

constitutional requirements regarding ballot secrecy, the right to

petition for redress of grievances, the right to freely assemble,

and the right of political association. None of these claims is

raised on appeal.

4

the issue is extremely close and difficult, after careful review,

we have concluded that the plaintiffs failed to meet their

evidentiary burden on the Shaw claim and summary judgment was

appropriate. We also hold that the use of total population to

track the size of the districts does not, under these

circumstances, violate the Equal Protection Clause.

I. Standard of Review

We review a motion for summary judgment by applying the same

standard as that appropriate for the court below, and in doing so

we interpret the evidence in the light most favorable to the

nonmovant. Summary judgment is appropriate when the nonmovant

fails to demonstrate that there is sufficient summary judgment

evidence to allow a reasonable fact finder to find in its favor on

all essential issues as to which it would bear the burden of proof

at trial. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th

Cir. 1995). However, this review must be understood in the context

of the courts’ traditional reluctance to interfere with the

delicate and politically charged area of legislative redistricting.

See Reynolds v. Sims, 84 S.Ct. 1362, 1394 (1964) (“legislative

reapportionment is primarily a matter for legislative consideration

and determination”); Hunt v. Cromartie, 119 S.Ct. 1545, 1552

(1999) (legislature has the benefit of presumption of good faith

when it conducts districting). The Court has clearly indicated

that this presumption may impact the assessment of the propriety of

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summary judgment in a suit challenging districts as racial

gerrymanders. See Miller v. Johnson, 115 S.Ct. 2475, 2488 (1995)

(sensitive nature of districting should be considered “when

assessing under the Federal Rules of Civil Procedure the adequacy

of a plaintiff’s showing at the various stages of litigation and

determining whether to permit discovery or trial to proceed”).

In this Shaw challenge, the plaintiffs bear the burden of

proving that race was the predominant factor in the City’s

districting decisions. See Bush v. Vera, 116 S.Ct. 1941, 1951

(1996). If the plaintiffs can demonstrate that race predominated

so that “race for its own sake, and not other districting

principles, was the legislature’s dominant and controlling

rationale in drawing its district lines,” the districts will be

subject to strict scrutiny. See Miller, 115 S.Ct. at 2486. For a

majority of the Supreme Court, the mere fact that race was given

some consideration in the districting process, and even the fact

that minority-majority districts were intentionally created, does

not alone suffice in all circumstances to trigger strict scrutiny.

See Shaw v. Hunt, 116 S.Ct. 1894, 1900 (1996) (“Shaw II”); Clark v.

Calhoun County, 88 F.3d 1393, 1404 n.2 (5th Cir. 1996) (identifying

O’Connor, Rehnquist and Bush dissenters as supporting, with Kennedy

reserving the question); Theriot v. Parish of Jefferson, 185 F.3d

477, 488 (5th Cir. 1999). And in the eyes of the author of Shaw,

the plaintiffs’ burden in establishing racial predominance is a

6

heavy one:

“To invoke strict scrutiny, a plaintiff must show that

the State has relied on race in substantial disregard of

customary and traditional districting practices.

. . . .

[A]pplication of the Court’s standard helps achieve

Shaw’s basic objective of making extreme instances of

gerrymandering subject to meaningful judicial review.”

Miller, 115 S.Ct. at 2497 (O’Connor, concurring)

(emphasis added).

Plaintiffs nevertheless argue that summary judgment is

disfavored in Shaw cases. They first argue that the question of

the City’s intent is inherently a fact-intensive inquiry that is

unsuitable for summary judgment, relying on a recent Supreme Court

reversal of a grant of summary judgment in a districting case. See

Cromartie. This ignores, however, the fact that in Cromartie the

district court had granted summary judgment for the plaintiff. The

Court took care to stress that summary judgment was inappropriate

not only because of the factual nature of the intent requirement,

but also because the nonmovant did not bear the burden of proof on

the issue. See id. at 1552 (“Summary judgment in favor of the party

with the burden of persuasion, however, is inappropriate when the

evidence is susceptible of different interpretations or inferences

by the trier of fact.”) (emphasis added). The Court also relied on

the traditional presumption that the legislature acted in good

faith while districting. Id. Here, neither of these factors are

present. The plaintiffs here bear the burden of persuasion, and

7

the presumption of legislative integrity adds to, rather than

lessens, their burden facing summary judgment.

The plaintiffs next argue that summary judgment is

inappropriate because the case is one of mixed motives--while the

City has proffered justifications for its actions grounded in

traditional districting principles, it has also conceded that race

was a factor in its decisions. The plaintiffs argue that the Court

has indicated that a more searching inquiry is needed in such

cases, and summary judgment is thus inappropriate. Bush v. Vera,

116 S.Ct. 1941, 1952 (1996) ( in a mixed motive case a “careful

review is, therefore, necessary to determine whether these

districts are subject to strict scrutiny”). This position

misconstrues Bush. The Bush court made this statement to

distinguish mixed motives cases in which the districting body

presented credible evidence of alternative justifications from

those in which no valid traditional districting purpose was given

and racial intent was obvious. See id. (distinguishing with cf.

citation mixed motive case from Miller); Miller, 115 S.Ct. at 2485

(noting that district court had found evidence of predominance of

race was overwhelming “and practically stipulated by the parties

involved”). Far from indicating that summary judgment should be

disfavored, the discussion the plaintiffs highlight demonstrates

the gravity with which the court approaches facially valid defenses

proffered by the legislature in the districting area. The City of

8

Houston’s presentation of valid evidence of nonracial intent, which

transforms the case into one of mixed motives, advances rather than

hinders its case for summary judgment. We will review the district

court’s grant of summary judgment using the traditional criteria,

and take into account both the presumption in favor of a

legislature’s good faith and a plaintiff’s burden of proof.

II. Circumstantial Evidence of Racial Motivation–The Appearance of

the Districts

A plaintiff may demonstrate that race predominated in a

districting decision by introducing circumstantial evidence of the

district’s shape and demographics. See Shaw II, 116 S.Ct. at 1900

(1996). The shape alone of some districts may be so bizarre and

irregular that their creation may only be interpreted as “an effort

to segregate the races for purposes of voting, without regard for

traditional districting principles.” Shaw, 113 S.Ct. at 2824;

Cromartie, at 1549 n.3 (some highly bizarre districts give rise to

inference that race predominated more strongly than the inference

that factors such as politics created the distortion). When shape

alone is not determinative, plaintiffs may still prove their

circumstantial case by demonstrating that the districts are

sufficiently bizarre in relation to racial demographics and

population densities. See Miller, 115 S.Ct. at 2489. The

objective case against a district may also be affected by an

analysis of whether the district adheres to traditional districting

principles other than compactness, such as political considerations

9

and fidelity to administrative boundaries. See Bush, 116 S.Ct. at

971.

In a very general sense, Houston’s nine single member council

districts can be described as being arranged like pieces of a pie,

each district radiating out from the center to the edge of town.

The two exceptions are District H, which does not touch the city’s

external borders due to a thin bridge between two halves of

District B, and District E, which does not approach the city

center. Were the City a congressional district carved out of the

surrounding suburbs, its own shape would likely provide ample

fodder for a Shaw claim. The City engulfs independent incorporated

areas, leaving two holes in its west half. It also includes three

detached “islands” to the north of the City proper--two of them

quite large--that are only tenuously connected to the “mainland” by

narrow and unpopulated corridors. In addition, it includes several

peninsulas jutting out into the countryside, the most outlandish of

which extends in a snakelike fashion eastward out of District E

between the IH-10 Freeway and the La Porte Highway. In short, as

a glance at the map will readily confirm, the City has vastly

irregular borders and does not even remotely approach a

mathematical ideal of compactness.

But plaintiffs do not challenge the shape of the City of

Houston, and the City is not in fact a congressional district. The

City’s highly irregular borders are simply a given that the Council

10

was forced to deal with as best it could in crafting the districts

challenged here. Because of the constraint imposed by the City’s

external borders, Houston’s city council districts will never enjoy

the pleasing symmetry of, say, Nebraska or Kansas (to say nothing

of Colorado or Wyoming). The City’s various peninsulas and

protuberances, and in particular its archipelago of detached

islands, have to be placed somewhere. While this might at first

glance leave particular districts open to charges of being

noncompact, these breaches of that ideal are unavoidable under the

circumstances. Recognizing this, when drafting its guidelines for

the redistricting, the city’s geographic goal embraced functional

as well as purely spacial compactness considerations.2

This rather obvious point seems to have escaped both the

plaintiffs and their expert witnesses. The plaintiffs take care to

lift segments of the City’s districts and compare them to elements

of Shaw, Reno, and Miller, but fail to point out this context.

Thus, for example, the plaintiffs argue that the City’s districting

2

Functional compactness is an inherently nebulous term drawn

from a district court decision summarily affirmed by the Supreme

Court. See DeWitt v. Wilson, 856 F.Supp. 1409 (E.D. Cal. 1994),

summarily aff’d, 115 S.Ct. 2637 (1995). However, as Justice

Kennedy had been at pains to highlight, summary affirmance is not

an endorsement of a lower court’s reasoning, see Bush, 116 S.Ct. at

1971 (Kennedy, concurring), and the concept as described in DeWitt

seems to us open to abuse. However, regardless of its merits when

applied to an ordinary districting decision, functional compactness

as applied here merely signals acceptance of reality. Contrary to

plaintiffs’ assertions, the fact that the City chose to use this

term does not indicate that they had abandoned traditional

districting principles.

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plan used narrow, unpopulated connectors to link District B with

the Houston Airport area, and that District E has a snaking

protuberance extending far to the east under the challenged plan.

While this is surely correct, and leads to an immediate analogy to

the Shaw district, it is absolutely irrelevant. Were Houston to

purge race utterly from its districting process by handing over the

task to a computer programmed to maximize purely spacial

compactness, these deviations would still be present. The same

error infected the expert opinion relied on by plaintiffs to

demonstrate lack of compactness and bizarre shape. Plaintiffs’

expert, Dr. Maggiotto, performed the type of mathematical analysis

cited with approval in several cases and concluded that the City’s

districts were not compact.3 However, Dr. Maggiotto failed to take

into account that substantial deviation from absolute mathematical

compactness was inherent in the City’s current form. Accordingly,

we reject his conclusion. Even on a motion for summary judgment,

we are not required to take heed of an ill-reasoned expert opinion.

See Matsushita Electric Industrial Co. V. Zenith Radio Corp., 106

3

The mathematical models generally used attempt to quantify

departures from compactness by, for example, drawing a circle

around the district’s center or connecting the district’s borders

with an imaginary string. The district’s deviation from this

benchmark is then analyzed. Such techniques may or may not be

probative when applied to areas in which external boundaries play

a minor role. However, they certainly would need adjustment before

being accepted when applied to a case such a Houston, or for that

matter possibly Rhode Island. If not, the report will reflect

massive deviations from compactness caused by factors beyond the

legislature’s control.

12

S.Ct. 1348, 1360 n.19 (1986).

This general failure of the plaintiffs does not, however,

foreclose their case. They point to several districts which have

borders that deviate from the Euclidean ideal in a manner not

entirely traceable to the City’s external borders. In particular,

they highlight districts B, H, I, and E.4 District B, which has an

African-American majority, consists of one “island” around the

Houston airport, and two distinct areas on the “mainland” that are

divided by District H and are connected only by a thin strip of

land along H’s northern border. The eastern half of the District

B plunges at one point into District I, and also has its pattern

broken by the intrusion of an arm of District H. District H, while

possessing a highly compact substantially rectangular core, has two

“arms” extending to the west and southeast. The southeast arm

curls around the borders of districts B and I in an ungainly

4

Plaintiffs also challenge districts C, D and A. District D

is, on the whole, overwhelmingly compact and regular. While the

district does taper sharply to the north before widening again near

its apex, this feature hardly detracts from its overall

cohesiveness. District C has regular borders with District D. Its

irregularities occur in its borders with districts G and F. Like

C itself, G and F are “white” “Anglo” districts (G is 79% “Anglo;”

F is 41.74% “Anglo,” 12.49% “Asian,” 25.36% “Hispanic” and 4.68%

“Black”); and the plaintiffs have never explained how these

irregularities can be understood as a racial gerrymander--they have

not shown that the areas affected had any special racial

significance. On this record, all that the distortions in these

districts show is that deviations from compactness may occur in

racially innocuous contexts. Once the shape of the City is taken

into account, deviations from compactness in District A arise only

from the intrusion of an arm of District H, and thus the question

of District A merges into the inquiry into District H’s shape and

demographics.

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fashion and terminates in a small, uneven projection extending a

short distance back to the west, into District B. The far more

regular western arm of District H extends for a fair distance into

District A, and at one point tapers sharply to merely point

continuity before expanding again. District I by comparison is far

more compact, although its eastern and western sections are

separated to a certain extent by District B. District E consists

of a southeastern portion that would be fairly compact but for the

City’s borders. However, it also includes the large island in the

Lake Houston area to the extreme northeast of the city, with which

it shares a connection only by a narrow eight-mile corridor. The

nature of this connection cannot be helped, as it is a product of

the City borders. As the plaintiffs stress, however, the Lake

Houston island is closer as the crow flies to Districts B and I

than to the balance of District E. In previous plans, the portion

of this island then within the City was in fact placed in District

B.

Certainly, these four districts--B, H, I and E--are not

perfectly compact. And since District B is a predominantly

African-American district, Districts H and I contain Hispanic

majorities, and District E is mainly white or “Anglo,” the shape of

these districts is not so regular as to preclude the plaintiffs

from showing that race predominated in the drawing of a portion of

some of the extremities of these districts. But these districts

are not the type of sprawling monstrosities that have previously

14

been found to violate Shaw by the Supreme Court. Indeed, Bush v.

Vera discussed districts that substantially overlapped with the

contested districts H, I and B. A quick review of the map in Bush

will demonstrate that the City was far more faithful to the ideal

of compactness than the Texas Legislature was in drafting the Bush

plan. In Bush, legislators attempting to create Houston area seats

for both Blacks and Hispanics effected this goal by selecting

block-sized packets of Hispanic or African-American voters and

linking them each into their respective district. The end result

created two of the three least regular districts in the country,

comparable to a jigsaw puzzle in which the pieces could not be

removed. See Bush, 116 S.Ct. at 1958. In Bush, in the area at

issue here, an already somewhat ungainly tentacle of the African-

American district contained uneven veins of loosely interconnected

Hispanic blocks that were placed in, and attached tenuously to, the

Hispanic district. Not only does the City’s districting of the

same area fail to even approach that level of non-compactness, the

record indicates that the Council specifically rejected a proposal

by one of its members to redraw its districts to mimic the plan

rejected in Bush on the grounds of noncompactness. In addition, we

note that the City successfully resisted pressure from private

litigants to draft a plan containing four majority-minority

districts--something that almost certainly would have created a

more bizarre plan. See Campos, 113 F.3d 544. Race was clearly not

15

the only factor driving the City’s districting, because it avoided

these extremes.

While we certainly do not mean to suggest that the extremes of

Bush or Shaw are the minimum threshold for a successful suit, we

simply cannot find that the challenged shape of the districts here

offers adequate evidence that race predominated in the districting.

This is especially true since some of the specific departures from

compactness that the plaintiffs highlight are not as dramatic as

they might initially appear. First, the plaintiffs attempt to paint

the odd southeastern arm of District H as an attempt to maximize

Hispanic numbers in H while avoiding the inclusion of African-

Americans. But this argument ignores the fact that District H’s

arm borders not only “Black” District B, but also District I--the

other majority Hispanic district in Houston. Had the City’s sole

real concern been maintaining the racial purity of these districts,

that goal could have facially just as easily been accomplished by

placing H’s southeastern arm in District I, in exchange for the

placement of District I’s northwestern corner in District H. This

configuration would have appeared far more compact and regular,

since the arm of H blends naturally into the north of I. And since

the relevant borders of the arm itself would not have altered, the

African-American population of B would have been unaltered and the

percentage of Hispanics in both H and I would have remained roughly

equivalent. Careful demographic analysis of the populations in

16

these disputed areas might disprove this hypothesis, but the

plaintiffs failed to even attempt to provide such data. The

evidence does not tie the particularly unusual feature of H’s

borders to race to the exclusion of any other real concerns.

Second, the usage of a narrow connector to link the two

sections of District B separated by District H is also not as

facially objectionable as it first appears. The plaintiffs argue

that District B’s odd shape is explained by the City’s desire to

carve out a Hispanic majority for District H, and continuity in B

was accordingly sacrificed, with the narrow connector a mere token

concession to the principle. However, when the area of District B

as a whole, including the dead space not included in the City, is

taken into account, this picture is far from clear. Because a

large section of District B is a detached island, B is in some

respects missing its center. The geographical heart of the

district is located outside the City limits. The northern island

of B and its two mainland halves would constitute a facially

unobjectionable compact body if the intervening unincorporated

territory were included. If one takes this into account, and views

District B as an attempt to reflect a coherent geographical

neighborhood in the north of the City that happens to be broken up

by unincorporated dead space, the outline of the district becomes

much less offensive. Rather than being a racial subterfuge, the

strip of territory connecting the incorporated halves of B can be

properly seen as marking the central border of a coherent and

17

relatively compact district whose outline is only clouded by the

City’s irregular borders.

Lastly, the presence of the detached Lake Houston area in

District E offers less support for the plaintiff than it otherwise

might. Concededly, the placement of this area leads to the

creation of an ungainly district that sprawls from the northern to

the southern extremity of the City. And this northeastern island

is closer to District B, so it would seem to do violence to the

compactness concept to put it anywhere else. However, this must be

placed in the context of the City’s most unusual outline. When a

districting body has the opportunity to create truly compact

districts and chooses not to, the harm is obvious. But when, as

here, spacial compactness is simply impossible, further departure

from the principle seems less jarring. Wherever the island was

placed, its representative would have to travel several miles

outside of the City proper, and voters in that district would have

had the odd sensation of being thrown together with an area with

which they shared only a technical connection. Given that the

City’s design had already decisively severed the island from its

neighbor, its placement in a district that was a few miles farther

away seems less offensive than it would otherwise. A judicial

analogy may serve to clarify this point. We would find it odd

indeed if Congress decided to place Washington State within the

realm of this Circuit when the opportunity to keep it within the

Ninth Circuit was present. But it is far less troublesome that

18

Puerto Rico has been assigned to the First Circuit rather than the

Eleventh (or the Fourth). The placement of Kingwood and its

environs is discussed in more detail below, but facially we find

that its separation mitigates to a large extent the effect of its

placement in District E.

In short, when viewed properly, the geographic boundaries here

do not in and of themselves make out a strong circumstantial case

under Shaw. That does not end our inquiry, however. As Miller

indicated, a district that is not facially outrageous may be

objectively revealed as a gerrymander by linking its shape to

demographics and other factors. In Miller, the Court conceded that

the district’s shape, while hardly perfect, was not sufficient

standing alone to lead to the conclusion that it was bizarre in a

Shaw sense. It then turned to a closer analysis of the geography

in light of the district’s demographics. It noted that the

district’s shape became far more troublesome once it was recognized

that the core of the district was relatively unpopulated, while the

carefully drawn exterior borders reached out to engulf urban

African-American population centers. Viewed in light of this

evidence, a shape that initially merely raised eyebrows was

revealed to present overwhelming circumstantial evidence of a

constitutional violation. See Miller, 115 S.Ct. at 2489 (“Although

by comparison with other districts the geometric shape of the

Eleventh District may not seem bizarre on its face, when its shape

19

is considered in conjunction with its racial and population

densities, the story of racial gerrymandering seen by the District

Court becomes much clearer.”).

Here, as in Miller, we are presented with districts in which

deviations from the compactness ideal are present but are not

overwhelming. But unlike in Miller, the plaintiffs have failed to

present us with specific demographic data that would clarify the

racial nature of these distortions. The plaintiff’s expert, Dr.

Weber, merely produced demographic data covering the districts as

a whole. He did not give us a demographic analysis of the specific

features--the arms of H, the connector section in B, and the

northeast island in E--that are at issue in this case. His report

did not show that, for example, the arms of District H contain most

of the district’s population, and H’s compact core is relatively

unpopulated. Nor was there even data demonstrating that the

western arm of H is designed to capture a specific pocket of

Hispanics in order to maintain Hispanic supremacy in the district.

Based on a map of Hispanic population dispersion in the record, it

appears this arm includes several areas without, and excludes some

areas with, high ratios of Hispanics. The general, over-broad data

Dr. Weber used supports only his conclusion that these districts

could be made more heterogenous. And this is hardly relevant--of

course if one solely focused on increasing racial heterogeneity one

could improve this factor, just as one could increase homogeneity

20

by adopting the pattern rejected in Bush. But districters are not

bound--or allowed--to sacrifice traditional districting concerns to

meeting quotas of diversity, just as they are not allowed to do so

in order to meet quotas of racial concentration.

Plaintiffs also argue that the fact that the number of

racially homogenous precincts increased in the 1997 plan

demonstrates that the City’s districting was predominantly linked

to race. Standing alone, however, this fact does nothing to

support the plaintiffs’ case. For reasons of their own,

populations occasionally shift within urban areas. If members of

one racial group chose to move out of certain areas, the numbers of

racially homogenous precincts would increase. However, this

phenomenon would not be tied to the actions of the districting

parties–they could keep the borders of the districts static and the

same effect would be seen. Indeed, according to the plaintiffs’

version of events this is precisely what occurred--they criticize

the 1997 plan for substantially maintaining prior boundaries.

Without tying this evidence to specific choices by the City, and in

particular to the discrete noncompact elements of the plan that

they challenge, this evidence fails to aid the plaintiffs’ case.

Ultimately, the plaintiffs failed to demonstrate by use of

demographics, as was done in Miller, that the specific departures

from compactness that it challenges are the product of race rather

than other factors.

21

However, compactness is not the only traditional districting

principle. Other factors, such as the protection of political

incumbents, the maintenance of administrative units, and the

reflection of communities of interest, play a part in the

districting process. By showing that the design of a district

violates these other traditional districting principles, the

plaintiffs support their circumstantial case.5 The districts

clearly adhered to at least one traditional districting principle

by maintaining the integrity of the relevant administrative unit,

voting precincts (although as discussed below plaintiffs argue that

these units are themselves tainted). However, the plaintiffs argue

that the districts do not serve the traditional districting

principle of reflecting communities of interest. In the more

egregious examples of gerrymandering, the violation of this

traditional principle will be facially obvious. Thus the district

challenged in Shaw could be safely assumed not to have been driven

by communities of interest, since it “winds in snakelike fashion

through tobacco country, financial centers, and manufacturing

areas” in an attempt to gather up “enclaves of black

neighborhoods”and “even towns are divided.” Shaw, 113 S.Ct. at

2821.

5

City council elections are at least formally nonpartisan.

Perhaps because of this, neither party stresses the traditional

districting principles of general, jurisdiction-wide political

gerrymandering.

22

But when presented with closer questions, the Court has

focused on the specific features of a district that cause it to

depart from compactness in assessing whether they are unjustifiable

on traditional grounds. Thus in Bush, where the State attempted to

justify its decision-making on the analogous traditional ground of

partisan politics--and there was indeed a correlation with politics

when the districts were looked at as a whole--the Court found it

significant that “the maps reveal that political considerations

were subordinated to racial classification in the drawing of many

of the most extreme and bizarre district lines.” Bush, 116 S.Ct.

at 1957. The fact that the State was willing, in the course of

extending a noncompact tentacle engulfing a pocket of African-

American voters, to include a large number of Republican voter

tabulation districts in a congressional district ostensibly

designed to maximize Democratic power was clear evidence of the

subordination of politics to race. Id. And in Miller, the

demographic data was heavily reinforced by an analysis of how

specific choices violated communities of interest. Because the

challenged district reached out to include African-American pockets

in several entirely separate urban communities, and linked them

together with a sparsely populated and wholly rural core, the

“social, political and economic makeup of the Eleventh District

tells a tale of disparity, not community.” Miller, 115 S.Ct. at

2484.

23

Here, the plaintiffs have failed to link the specific

departures from compactness that they highlight to the violation of

traditional districting principles. They first claim that several

neighborhoods were split in the 1997 plan. But the City introduced

evidence that more neighborhoods were reunited than were split by

the plan, and the plaintiffs have not challenged this assertion.

Moreover, the plaintiffs failed to show where the allegedly split

neighborhoods were. While it may be unfortunate that a

predominantly white neighborhood was split between two white

districts, the existence of such a districting faux pas may well

have nothing to do with the racial issues that concern us here.

The plaintiffs’ evidence of neighborhood splitting is not helpful

to their case.

Plaintiffs also tendered the opinion of Dr. Maggiotto, who

analyzed various purportedly relevant statistical indicators of

communities of interest.6 His report claims that, in the City as

a whole, race varies less within the districts than do his chosen

6

We note some unease with the categories deployed in the study.

Here, we are particularly troubled by Dr. Maggiotto’s reliance on

the category of “industry of employment.” To expect that any large

district will be characterized by a single, or a few, industries of

employment is problematic, since we have generally left behind the

era of mill town and mining towns. And a mailroom clerk in a bank

will not necessarily enjoy a community of interest with its lending

officers. An area such as Silicon Valley may be an exception to

this, and the category may be highly relevant when analyzing

congressional districts to quantify urban and rural areas. See

Miller, 115 S.Ct. at 2484, 2490. But applied to Houston, this

seems a remarkably unprobative tool. We note this only in passing,

since Dr. Maggiotto’s report is not on point in any event.

24

indices of community. This evidence, it is argued, demonstrates

that race predominated in the City’s districting. However, the

plaintiffs again use too blunt a statistical tool. Socio-economic

variation within districts is almost unavoidable, particularly

when, as here, the constituent districting units are fairly large--

approaching 200,000 persons. Not many, if any, rectangles of this

size randomly deposited on a map of Houston could be expected to

capture an essentially homogenous socio-economic group. At least

when relatively large districts are involved, the mere existence of

socio-economic variations within the district is not probative. To

provide valid circumstantial evidence of the predominance of race

in the City’s districting, then, Dr. Maggiotto had to tie his data

to specific districting decisions, or the plaintiffs had to place

his data in context by showing that the variations from available

normal compactness were likely caused by racial factors. This they

failed to do. They did not show--or even claim--that, for example,

the southeastern arm of District H extends outward to reach a

pocket of wealthy Hispanics who share nothing other than race with

the bulk of the district, the way that the Atlanta extremity of the

Miller district shared no commonality with the district’s rural

core other than race. Nor did they show that the western arm of H

is designed to reach a pocket of Hispanics at the cost of including

on the way neighborhoods that share nothing with the rest of that

district, the way that Texas reached out to a pocket of African-

25

Americans at the cost of including Republican districts in Bush.

Indeed, the plaintiffs never analyzed or even referred to the

socio-economic composition of the specific areas created by the

City’s departure from geographical compactness, relying instead on

broad statistics covering the entire area. See Bush, 116 S.Ct. at

1957 n.* (criticizing dissent for relying on statistics showing

political orientation for district as a whole, rather than

concentrating on border segments). Had they done so, perhaps our

decision today might have been different. But bearing in mind that

it was the plaintiffs’ burden to produce evidence that race

predominated, and also remembering the presumption in favor of

legislative integrity, we cannot say that the shape and

demographics of the districts here provided adequate circumstantial

evidence of the predominance of race to prevent summary judgment.

III. Direct Evidence

Plaintiffs also argue that they have sufficient direct

evidence that the City’s districting was predominantly driven by

race. They focus on two major points. First, they argue that the

major decision made during the 1997 districting–that the newly

annexed area of Kingwood should be placed in District E rather than

District B--was predominantly influenced by race. Second, they

argue that the 1997 plan substantially maintained the borders of

previous plans, and that those borders were set by a process in

26

which race--specifically, the desire to create two black and two

Hispanic single member districts--predominated. The City concedes,

as it must, that race--in the form of a desire to comply with the

Voting Rights Act--was a factor in all the plans. But as we have

stated before, a majority of the Supreme Court does not believe

that the mere presence of race in the mix of decision making

factors , and even the desire to craft majority-minority districts,

does not alone automatically trigger strict scrutiny. See Clark,

88 F.3d at 1404 n.2; Theriot, 185 F.3d at 488.

Before touching on plaintiffs’ most heavily pressed intent

evidence, we briefly dispense with their argument that racial

intent can be inferred from the City’s use of precinct lines.

Plaintiffs assail the district lines because they hew to precinct

lines. Conformity to such administrative boundaries is ordinarily

seen as a virtue, not a vice, in the districting process. See

Bush, 116 S.Ct. at 1953 (noting maintenance of some county lines

showed traditional factors were not entirely ignored). And

plaintiffs have not identified--and there does not appear to be--a

larger, more race-neutral, administrative unit that could have been

practically deployed. Cf. Miller, 115 S.Ct. at 2490 (noting that

plan split several counties, and thus violated traditional

districting principles–use of precincts could not mitigate this

fact in congressional districting). But the plaintiffs stress that

the City had access to racial data on the precinct level. They

27

attempt to analogize this situation to Bush, where the State used

a computer system that had racial data available on the block

level. The fact that the plan ultimately adopted split precincts

and used block units instead was found to offer compelling proof

that race has predominated in the districting. But the key factor

in Bush was not the mere availability of racial data. Rather, it

was the abandonment of a traditional districting unit, the

precinct. Since this step violated traditional districting

principles and caused substantial administrative problems, and

since given the fact the only additional precision the computer

provided at the block level was racial, the obvious inference was

that race drove the decision. See Bush, 116 S.Ct. at 1959. Here,

in contrast, the City adhered to the traditional--and apparently

the only--administrative boundaries readily available. The

plaintiffs complain that this is irrelevant, since the size of the

precincts was deliberately shrunk to allow more precise racial

gerrymandering. However, the City of Houston does not set precinct

size, and the plaintiffs have not tied the changes in precinct

sizes to any actions of the City.

A. Kingwood

The major change made by the City in 1997 was driven by the

City’s decision to annex Kingwood, an overwhelmingly white (Anglo)

planned community with a population of around 40,000 people that is

attached to the detached Lake Houston area. The decision to annex

28

Kingwood is itself not before this Court. Rather, the plaintiffs

complain that Kingwood--and with it the rest of the northeastern

island around Lake Houston-- was placed in District E. Previously,

this island had been attached to District B. They claim that they

have direct evidence that race predominated in this decision--

specifically, that the City’s overwhelming motivation in doing so

was avoidance of potential section 5 retrogression liability.

Because Kingwood has a large population, and because District B

was close to the one-person, one-vote population limit, placing

Kingwood in B would have forced the City to move areas on the

borders of B into the surrounding districts. And because the only

district adjacent to B with a white (Anglo) majority--A--was

already relatively overpopulated, moving areas from B to A would

have in turn created more spillover effects, resulting in the

disruptive necessity of redrawing several districts. Placement of

spillover from B into Districts H or I would initially seem more

attractive, since those districts were underpopulated. However,

the addition of African-American voters displaced from B would

seemingly have eliminated the Hispanic majorities in either or both

of these districts. The City believed that this might have

triggered retrogression concerns under section 5 of the Voting

Rights Act.7 Placement in District E, by comparison, allowed for

7

Although we do not reach the question of strict scrutiny, we

note that there is evidence in the record indicating that Hispanics

do not constitute a majority of the citizen voting age population

in either of the two nominally Hispanic districts. Citizen voting

29

the smooth integration of Kingwood. Spillover and one-person, one-

vote concerns were minimized, with only relatively minor border

changes made necessary.

The evidence clearly indicates that the City’s decision to

place Kingwood in District E was partially driven by the fear of

retrogression. Its section 5 filings and the statements of both

the drafter of the plan and the council members involved

establishes this, and the City does not contest it. Indeed, it

argues that this concern would allow it to survive strict scrutiny

review. And to a certain extent--as discussed above, the issue is

not as pressing when a detached island is concerned--compactness

was sacrificed in the placement of Kingwood. Kingwood is closer to

District B than it is to District E. However, a review of the

record indicates that the Council had before it at the time it made

its decision to place Kingwood in District E two other legitimate

grounds for justifying its decision. First, the City wanted to

preserve communities of interest. Second, it wanted to minimize

disruption in the run-up to the expected major redrawing of

districts following the 2000 census. On this record, we cannot say

that there has been an adequate showing that race predominated over

age population is the proper measure under section 2 of the Voting

Rights Act. See Campos, 113 F.3d at 548. Conceptual difficulties

are presented in evaluating retrogression under section 5 when no

minority-majority districts are present to act as a baseline. See

Reno v. Bossier Parish School Board, 117 S.Ct., 1491, 1503-04

(1996) (Thomas, concurring).

30

these concerns.

The most powerful alternative justification for the City’s

actions is the nature of Kingwood and it greater community of

interest overlap with portions of District E. The Court has noted

that concern about communities of interest is a valid traditional

districting tool that may serve to deflect an inference that race

predominated in districting. See Bush, 116 S.Ct. at 1954 (evidence

that “district lines were drawn in part on the basis of evidence

(other than racial data) of where communities of interest existed

might weaken a plaintiff’s claim that race predominated in the

drawing of district lines.”). Here, transcripts of the series of

council debates that led to the final vote on the districting plan

demonstrate that members of the Council discussed and evaluated

data that indicated that Kingwood’s communities of interest

overlapped with District E, but were wildly at variance with

District B. The fact that this material was available to the

Council at the time they were deliberating on it serves to

distinguish this case from others in which alternative

justifications have been raised after the fact and only

hypothetically motivated the districting body. See Shaw II, 116

S.Ct. at 1902 n.4 (purported justification must be actual purpose

in adopting plan and supported in the evidence); Bush, 116 S.Ct. at

1955 (disregarding community of interest justification because data

was not before the legislature in an organized fashion).

31

In the Council debates, members of the Council referred to

both anecdotal and statistical evidence demonstrating that the

average income and quality of housing in Kingwood were much higher

that those found in District B, while the percentage of persons on

public relief and the occurrence of illiteracy was much smaller.

Moreover, the members of the Council did not limit themselves to

general discussions of socioeconomic indicators. They pointed to

specific factors that demonstrated that District B’s community

concerns varied from those in Kingwood. Because Kingwood is a

planned community, it has excellent infrastructure. In comparison,

the infrastructure in District B was referred to as among the worst

in the City. This would raise the concern that the residents of

Kingwood’s desire and need for municipal improvements would diverge

from those of other residents of District B. It was also stated

that Kingwood had privatized several municipal services, and paid

for services using regressive user fees rather than more

progressive property taxation. This difference would obviously

lead to a divergence between the two areas’ approaches to services

and taxation.8 In comparison, District E was said to be far more

congruent with Kingwood than District B. Its infrastructure and

average income were much closer to Kingwood’s. It also contained

planned communities that shared Kingwood’s special concerns

8

We note that although this discussion was couched in terms of

communities of interest, and the City chooses to defend it as such,

there are significant overtones of political as well as community

justification in the debates.

32

regarding services and taxation. In light of the greater

similarity between the two areas, in the eyes of the members voting

for the plan it made sense to place Kingwood in District E.

Significantly, opponents of the plan--and two Council members,

as well as the plaintiffs’ lawyer in this case, spoke out in some

depth against it before the vote--never challenged these

assumptions. At no point were the Council members’

characterization of Kingwood’s socio-economic status,

infrastructure, and services called into question in any way. The

closest an opponent of the plan came to undermining the majority’s

community of interest assumptions was a discourse by one of the

members who voted against the plan. He argued that communities of

interest were inherently linked to geography, and thus could not

bind Kingwood to District E. In its strong form, this statement

would make communities of interest a mere subset of geographic

compactness. In its weak form, it is generally correct and a

useful observation to guard against abuses of the community of

interest rationale. Here, however, this reasoning is inapplicable.

Since Kingwood was separated from the main body of both Districts

B and E, it was never likely to share a sense of geographic

neighborliness with either district. The question was not one of

placing Kingwood in either District E or an adjacent community

linked in the eyes of the populace with Kingwood. Instead, the

issue was which of two geographically isolated areas Kingwood and

its surrounds should be shoehorned into–a district in which it had

33

nothing in common or one with which it shared at least some points

of community concern.

Nor have the plaintiffs pointed on their appeal to any

evidence that undermines the community of interest justification.

As noted above, their arguments and evidence regarding communities

of interest are fatally flawed by the broad level of generality

they adopt. Here, this weakness is especially glaring. Plaintiffs

have not presented data about Kingwood at all, let alone introduced

evidence that undermines the arguments made by proponents of the

plan at the time. Since Dr. Maggiotto did not separate out

Kingwood, his data cannot be used to undermine the City’s

justification here--there is no evidence that factors such as

occupations or educational level create a significant point of

commonality between Kingwood and District B that mitigates the

divide created by raw income and other factors. Indeed, Dr.

Maggiotto’s evidence largely confirms the City’s analysis. It

shows that District B was the second poorest district in the City,

while District E was the second richest, and contains the lowest

variation of income. At most, plaintiffs have shown that all of

District E is not exactly congruent with Kingwood. They have not

shown, and have never claimed, that Kingwood was more similar in

regard to the factors discussed to District B than it was to

District E. And they never attempted to introduce, by expert

opinion or otherwise, evidence tending to show that this lack of

similarity was overcome by the presence of commonalities in

34

nonquantifiable indicia of communities of interest.9 In short,

this is not a case where a decision is justified by a “mere

recitation of purported communities of interest” unproven by facts

in the record. Cf. Miller, 115 S.Ct. at 2490.

Further support for the City’s position is provided by the

special nature of the decision of where to place Kingwood. Not

only was the council presented with the awkward task of placing a

disconnected, newly-acquired parcel of land into a settled

districting scheme, it also did so against the looming background

of the upcoming census. As a result of the 2000 census, the City

will in the near future receive significantly better data about its

population. A report prepared for the Council by a local

university professor, Dr. Alford, indicated that the City would be

required to engage in a major overhaul of its districts in light of

this data, and that a similar effort in 1997 based on soon-to-be

obsolete census figures would be inefficient. The City evidently

has followed a practice of confining major changes to the

districting that follows the census. See Campos v. City of

Houston, 968 F.2d 446, 449 (5th Cir. 1992) (discussing replacement

of old plan “used during the 1980s” in wake of 1990 census). In

9

Had there been meaningful evidence to that effect it might

well have been difficult to refute for summary judgment purposes.

Because of the inherently subjective nature of the concept, it

would seem that reasonable people might disagree as to what

constitutes a community. We thus caution against general over-

reliance on the communities of interest factor.

35

light of this, it is hardly surprising that the City would be

reluctant to place Kingwood in an area which would require major

alterations of the district plan. Several Council members spoke to

this effect. By placing Kingwood in District E, the City minimized

the spillover effect mandated by one-person, one-vote concerns, and

the corresponding mass redrawing of districts that would ensue.

Under the special--if not wholly unique--situation created here by

a major annexation located so soon before the next census, this

would seem a valid concern.10

The plaintiffs attempt to undermine this evidence by arguing,

in essence, that the Council’s debates were mere smoke and mirrors

concocted in anticipation of precisely this lawsuit. Certainly,

the debates evidence an intense awareness of the possibility that

the districting would be subject to a Shaw suit. The first day of

the debate began with legal counsel explaining the nuances of

Miller and Bush in great detail to the Council. However, this

record does not support a conclusion that the whole debate was

10

We note that this conclusion was strongly reinforced in the

eyes of several Council members by the plaintiffs’ failure to

draft an alternative plan. While the drawing of a flawless

alternative is not necessary to mount a Shaw suit, and we recognize

the difficulties private litigants may have in doing so, it would

certainly have helped under the circumstances. Faced with a choice

between a comprehensive plan that was supported by several

independent justifications and the plaintiffs’ response--a map of

the City showing Kingwood and its environs in District B, with no

indication of the boundary shifts that would follow--it would not

be surprising if the Council members imagined a worst-case scenario

in regards to disruption (or the possible effects on their own

district).

36

essentially scripted. The voluminous testimony exhibits meaningful

disputation, and several proponents of the plan used language and

took positions that are not consistent at all with the hypothesis

that the supporters of the plan were carefully coached. Given the

presumption in favor of legislative good faith granted in this

area, we cannot say on this record that the mere fact that the

Council was aware of the meaningful possibility of this litigation

suffices to create a fact issue as to their statements being mere

pretexts for concealed racial motivation. We cannot say that a

fact issue has been created regarding the predominance of race in

the placement of Kingwood. The decision was independently

justified by several factors besides race at the time it was

adopted, and the force of the traditional concern that was

sacrificed--compactness--was diminished by the context of placement

of a detached island.

B. Continuation of a racially motivated districting structure

Plaintiffs also contend that the City violated Shaw by failing

to make substantial changes in a districting structure that was

originally designed in a manner that race predominated over

traditional districting concerns. The sins of past Councils, and

the Department of Justice (DOJ), thus are claimed to haunt the

current Council’s asserted ratification of their work. The

district court summarily rejected this argument, reasoning that the

constitutionality of the prior plans had never been challenged, and

37

the intent behind their creation was thus not properly before the

court. This would appear to have been overly hasty. In the

context of Voting Rights Act suits, evidence that impermissible

racial intent had tainted the plan upon which the challenged plan

was based has been allowed, even when enough time has elapsed for

a substantial degree of familiarity and political reliance to

emerge. See Garza v. County of Los Angeles, 918 F.2d 763, 768-69

(9th Cir. 1990), cert denied 111 S.Ct. 681 (1991). The mere

passage of time cannot extinguish entirely the taint of racial

discrimination. See Hunter v. Underwood, 105 S.Ct. 1916 (1985)

(discriminatory intent behind 1901 disenfranchisement provision

coupled with continued discriminatory impact relied on to

invalidate statute). And in a context like the one before us,

where the City redistricts relatively frequently, adoption of the

City’s position would seem problematic because it would give

potential challengers an incentive to launch more frequent

lawsuits. If the potential plaintiffs did not sue, they might find

that the passage of other plans had sanitized the intent embodied

in the prior plan.

We first note that while race clearly played an important role

in the earlier districting efforts, the quality of evidence

introduced by the plaintiffs in regard to the earlier efforts (as

well as respecting the 1997 ordinance) falls far short of that

introduced in the cases examined by the Supreme Court. As

38

discussed above, the objective, circumstantial evidence of the

predominance of race is far weaker than in those cases. As for

direct evidence, in the Shaw cases not only was the end product of

DOJ intervention a monstrosity that massively violated traditional

districting principles, but the State also openly stated in its

section 5 filings that race was its dominant concern rather than

just a factor. See Shaw II, 116 S.Ct. 1901 (preclearance

submission announced creation of minority districts was State’s

“overriding purpose”). A similar direct admission of intent was

present in Bush. See Bush, 116 S.Ct. at 1957 (testimony of state

officials in related litigation claimed that race was the primary

consideration in districting). And in Miller, where--as here--the

district’s shape was not itself extremely bizarre, the evidence

that race trumped other concerns was conclusive. There, the DOJ

rejected proposed plans not once, but twice, and ultimately made it

clear to the State that it would only accept a result that mirrored

a plan proposed by a third party, the ACLU. Ultimately a plan

designed around this framework was adopted, as legislators who

voted in its favor testified,11 simply because the State felt it had

11

Here, in contrast, the plaintiffs have introduced the

affidavits of two members of the Council who were opposed to the

plan. The affidavits do not purport to relate incriminating

conversations or statements made by proponents of the plan that

would serve to demonstrate the majority’s intent--they merely state

the dissident Council Members’ personal opinions. And their

opinion that race predominated, while no doubt deeply held, cannot

demonstrate the impermissible intent of the majority.

39

no other choice. Obviously, the ACLU lawyer who drew up the

outlines of the plan challenged in Miller could have no firm

understanding of, or respect for, the subtleties of traditional

districting. See Abrams, 117 S.Ct. at 1933 (State “adopted the

Justice Department’s entirely race-focused approach to

redistricting”); Johnson v. Miller, 864 F.Supp. 1354, 1368 (S.D.

Ga. 1994) (lower court discusses role of ACLU drafter). The

inference was thus automatic that race had not only predominated

over, but had indeed almost entirely extinguished, traditional

districting concerns.

Here, in contrast, the only evidence that the plaintiffs

produced is the raw history of DOJ intervention, which contains no

brazen admission that race predominated and no details regarding a

pattern of DOJ pressure.12 Plaintiffs relied on the fact that in

1991 the City’s original plan was denied preclearance, and that

while the plan the City drafted in response creating additional

concentrations of minorities was never implemented, it formed the

template for the 1993, 1995, and 1997 districtings. Based solely

on these facts and the section 5 filings that accompanied the plans

(and demographic evidence that, as we discussed above, is

12

One piece of evidence that might have proven extremely helpful

for the plaintiffs’ case in this regard would be transcripts of

Council debates surrounding the adoption of the prior plans. While

the 1997 debate is in the record, the earlier ones are not. Had

those debates been as open and detailed as the 1997 record, they

perhaps could have proven decisive against summary disposition

here.

40

insufficient to sustain plaintiffs’ case), the plaintiffs’ expert

Dr. Weber opined that race had predominated in all of the City’s

districting since 1991. Certainly, this material establishes that

race was a factor in prior districtings, and that the form of those

districts was largely reenacted in 1997. It also establishes an

intention on the part of the City to establish minority-majority

districts. And, a glance at the district maps verifies that the

City’s original plan was more compact than the ones subsequently

adopted.

But the City has always conceded these points, and as we

discussed above the sacrifice in compactness was not extreme. And

this Court has interpreted the Supreme Court’s current position to

include a majority in favor of Justice O’Connor’s statement in Bush

that the intentional creation of minority-majority districts will

not in and of itself trigger strict scrutiny. See Bush, 116 S.Ct.

at 1951; Clark, 88 F.3d at 1404 n.2; Theriot, 185 F.3d at 488. The

plaintiffs’ burden was thus to show that race predominated over

traditional districting concerns, not merely that the City

attempted to craft minority-majority districts and that there was

some but not massive reduction of one such factor--compactness.

Here, all that has been demonstrated is that the DOJ aggressively

forced a consciousness of race and the Voting Rights Act upon the

City. The City then abandoned its initial plan--one presumably

grounded firmly in traditional districting principles–and

41

ultimately adopted a system that met the DOJ’s requirements. Were

districting an exact science, in which the application of

traditional districting principles always produced one objectively

optimal solution, this would perhaps settle the question--

abandonment of the optimal traditional plan would demonstrate

subordination. But districting is hardly a science. It would seem

obvious to us that there is more than one way to draw a district so

that it can reasonably be described as meaningfully adhering to

traditional principles, even if not to the same extent or degree as

some other hypothetical district.

If, in the wake of the DOJ’s intervention, the City had

returned to the problem and properly considered race as a factor

alongside traditional districting principles, and the result they

reached had satisfied the DOJ without substantially abandoning

those principles, race would not automatically have predominated.

For example, the City could have returned to the drawing board and

generated a plan that increased the recognition of communities of

interest and satisfied the DOJ’s racial concerns.13 The fact that

13

Presumably, there is a platonic ideal form covering each of

the traditional districting principles, and they will not always

overlap. For example, adherence to administrative boundaries will

by its very nature subvert mathematical compactness, since these

units are not uniform. When a factor is legitimately raised, it

will always in a sense subordinate other factors--the raising of

political concerns will interfere with compactness or communities

of interest or race. If, after a plan was laboriously crafted, a

Council member objected on the grounds that it severed his

residence from his district, and changes were then made, this

rejection and alteration of the plan would show that political

concerns were a factor. But the fact that a finished plan was

42

compactness was somewhat lessened in the process would not

establish that strict scrutiny was required, because race might not

have predominated over communities of interest. Thus abandonment

of an original plan by itself does not demonstrate that race

predominated--the adopted plan may have also been the product of

and substantially consistent with traditional districting

principles. The plaintiffs failed to offer any evidence that this

did not in fact occur. As discussed above, the plaintiffs failed

to show specific areas in which communities of interest were

subordinated to race, and they never claimed that the original plan

was a more adequate reflection of that traditional districting

principle than those that followed. The plaintiffs’ expert, Dr.

Weber, conceded that he did not take into account the City’s desire

to reflect communities of interest, since he believes that the

criteria used to measure this concept are themselves closely

correlated with race.

While the rabid extremes of the DOJ conduct in Miller should

hardly stand as a minimum litmus test in such matters, it would

seem to us that a plaintiff is required to do more than merely

demonstrate that the DOJ had somewhat effective input in the

process to trigger strict scrutiny. “It is not Justice Department

rejected would not in and of itself show that this political input

predominated. One or more other factors would surely be

sacrificed, but not only the political concern that drove it but

also other factors might be advanced. Ultimate approval of the

change might be based not only on the grounds that led to it being

proposed, but also because of the other interests it advanced.

43

interference per se that is the concern, but rather the fact that

Justice Department pressure led the State to act based on an

overriding concern with race.” Abrams, 117 S.Ct. at 1934. And

that is all the plaintiffs have really done here. The DOJ will

almost always have this kind of input into the districting

decisions of jurisdictions covered under section 5. At least in

those jurisdictions, then, accepting the plaintiffs’ minimal

showing here would render Justice O’Connor’s allowance for the

creation of minority-majority districts of merely academic

interest. In the process, such a rule would in practice narrow

what is already a difficult passage through the Scylla of the

Voting Rights Act and the Charybdis of Shaw nearly to the vanishing

point–virtually every decision the jurisdiction made would run

aground on the rocks of litigation. Here, for example, the City

would have surely run into trouble had it disregarded the DOJ’s

suggestion regarding the creation of more minority concentrations.

But by the mere fact of heeding these objections, plaintiffs claim,

the City automatically exposed itself to a lawsuit triable under

strict scrutiny. DOJ’s overreaching will occasionally inflict this

dilemma in any event--to exacerbate the problem by making it an

ironclad rule would seem inadvisable.

Given the fact that the plaintiffs bore the burden of proof on

this issue, and the presumption in favor of the Council’s good

faith, the plaintiffs needed to undercut the hypothesis that the

44

City’s plans were independently substantially justified by

traditional districting factors. They failed to do so. An obvious

mechanism would be to use circumstantial evidence based on the

districts’ shape and demographics to shore up the direct evidence

of intent. But as discussed above, the plaintiffs’ circumstantial

evidence is inadequate to allow a finding that race predominated.

Nor did the plaintiffs point to adequate direct evidence that the

compliance with the DOJ’s desires was the predominate, driving

force behind the plan, rather than merely one factor, along with

traditional ones, in the overall equation. Cf., e.g., Abrams, 117

S.Ct. at 1934 (discussing direct evidence from drafter of plan that

preceded the one challenged in Miller that he viewed draft

including two majority-minority districts, that it was viewed as

ridiculous and not making sense, and going on to note testimony of

legislators that indicated that all other considerations yielded to

DOJ desire to maximize minority districts).

And in any case, while the district court erred in

categorically and totally dismissing evidence of intent garnered

from prior plans, it was correct to point out that the state of

mind involved in the prior plans is not of itself what is precisely

and directly the ultimate issue before the Court in this case. We

have noted in a different context that while under Hunter the

discriminatory intent of the original drafter may carry forward

despite subsequent judicial invalidation of the most obviously

45

discriminatory provisions, intervening reenactment with meaningful

alterations may render the current law valid. See Cotton v.

Fordice, 157 F.3d 388, 391 (5th Cir. 1988) (while

disenfranchisement constitutional provision originated in attempt

to discriminate, subsequent reenactment with alterations approved

by voters added categories of crimes originally excluded because

they were not considered “Black” crimes and subtracted a less

serious offense that had been considered a “Black” crime). We do

not suggest that the changes implemented in 1993, 1995, and 1997 to

the original framework were as dramatic as those in Cotton.

However, that case broadly stands for the important point that when

a plan is reenacted--as opposed to merely remaining on the books

like the provision in Hunter--the state of mind of the reenacting

body must also be considered.

Here, the passage of time lent an additional element to the

Council’s intent. Maintenance of established district lines is

itself a traditional districting principle, and the City included

it in its guidelines for the 1997 revision. And the adopted plan

minimized the changes in district boundaries. Standing alone, that

would not matter much here--the mere passage of six years cannot

have hallowed the current districts with much familiarity or

tradition. But in the context of the approaching census, this

principle would seem to have some validity. As discussed above,

the City had before it when it voted on the plan information

46

indicating that a radical revision of its boundaries (for its soon

to follow elections) will be necessary in light of the 2000 census.

What the district court characterized as a “scorched-earth”

redrawing of the districts--what Dr. Weber’s views would have

logically required to purge all taint of DOJ interference–would

have little to recommend it under the circumstances. Such ground-

up revisions are difficult to implement, and as one Council member

argued, can be “wholly disruptive toward the political and

neighborhood relationships we have established in the city.” This

fact hardly justifies the “freezing“ of district lines in the

manner the district court seemed to endorse. However, it does

caution against wholesale alteration based on out-of-date census

figures when the process will in any case have to be done in the

immediate future. In the context of close proximity to the census

(with new elections soon to follow), we think that residual doubt

as to the appropriateness of summary judgment is extinguished by

the fact that the City had valid reasons to adhere to its prior

borders distinct from the grounds which led to their adoption.

Thus, although the issue on appeal is extremely close, we

ultimately conclude that the district court correctly dismissed the

plaintiffs’ Shaw claim. On this record, we cannot say that

plaintiffs have carried their burden and made a sufficient showing,

either circumstantially or directly, to sustain a finding that race

predominated in the districting. We stress that our decision here

47

rests largely on the evidentiary shortcomings in the plaintiffs’

case. We would also add that in our analysis of the direct intent

evidence we relied on the rapid approach of the census, and the

City’s expectation that a major overhaul of districts (and soon to

follow elections) will occur at that time. Our opinion here cannot

be read as a conclusive endorsement of these districts’

constitutional status, since on better showing by the plaintiffs

the result might well have been different. Nor can it be viewed as

an open invitation to the City to maintain the current boundaries

and overall structure in the redistricting that follows the 2000

census. See Campos v. City of Houston, 113 F.3d 544, 548 (5th Cir.

1997) (clarifying proper standard of measurement under section 2);

id. at 545 (discussing pattern of election results); United States

v. City of Houston, 800 F.Supp. 504, 508 (S.D. Tex. 1992) (Jones,

J.) (discussing election results and question of safe versus

marginal districts in the retrogression context).

IV. One Person, One Vote

Plaintiffs also contend that the votes of residents of several

districts were devalued by the City’s deliberate undersizing of

minority voting districts. The heart of this one-person, one-vote

claim is that the City, despite being aware that it contained

pockets with extremely high ratios of noncitizens, improperly

crafted its districts to equalize total population rather than

citizen voting age population (CVAP). The plaintiffs argue that

48

when total population is obviously an imperfect proxy for potential

voters, the City is constitutionally required to use a more

accurate measurement of voters. And using CVAP figures, it is

clear that several Houston districts fall outside the ten percent

threshold established as a safe-harbor for population variance in

municipal election districts. The district court rejected this

claim, and for slightly different reasons we agree.

The Equal Protection Clause requires that representatives to

an elected body be drawn from voting districts of substantially

equal population. Reynolds v. Sims, 84 S.Ct. 1362 (1964).14 This

guarantee extends to local elections. See Avery v. Midland County,

88 S.Ct. 1114 (1968). However, because state and local elections

are not subject to the explicit commands of the Constitution

regarding federal elections, they are not held to a standard of

absolute population equity. See Brown v. Thompson, 103 S.Ct. 2690,

2695-96 (1983) (state must make only a good faith effort to ensure

population equity and may balance population against other

legitimate concerns). If the maximum variation between districts

14

See, e.g., id. at 1385 “. . . the Equal Protection Clause

requires that the seats in both houses of a bicameral state

legislature must be apportioned on a population basis. Simply

stated, an individual’s right to vote for state legislators is

unconstitutionally impaired when its weight is in a substantial

fashion diluted when compared with votes of citizens living in

other parts of the state,” and 1390 “the Equal Protection Clause

requires that a state make an honest and good faith effort to

construct districts, in both houses of its legislature, as nearly

of equal population as is practicable.”

49

exceeds a certain threshold, the state will be required to justify

the variance by invoking such concerns. Mahan v. Howell, 93 S.Ct.

987 (1973) (16.4% variation justified by constraints of political

subdivision lines). However, below a certain threshold the

plaintiff has failed to establish a prima facie case and the

districting body will not be required to justify minor variations.

See Gaffney v. Cummings, 93 S.Ct. 2321, 2330 (1973). The Court has

indicated that this threshold is ten percent. See, e.g., Connor v.

Finch, 97 S.Ct. 1828, 1833 (1977) (setting threshold at ten

percent). Here, the maximum variation between the City’s districts

was found by the district court to be 8.63% when measured by total

population, and the plaintiffs have never claimed that using this

population base the variation exceeds 10%. The plaintiffs would

thus appear to have failed to make out a prima facie case.15

15

The plaintiffs complain that three of the four minority

districts are undersized relative to a hypothetical ideal district.

Three minority districts are indeed undersized, and one of them is

the smallest district in the City. The City concedes that this is

the case, and also concedes that this fact is at least partially

traceable to concerns that the 1990 census undercounted minorities.

At the time the basic outlines of the districts were constructed,

the City claims that it believed that there might be a revision of

the census, and thus predominantly minority districts were

undersized to prevent them from later being viewed as oversized.

Based on the limited information in the record and the City’s

statement, it appears clear that this undersizing was not based on

any scientific measurement designed to correct for perceived flaws

in the census. Nor was it applied equally to the minority

population--only minorities living in certain districts were

affected. Had it been shown that the City’s districts breached the

ten percent threshold when either of these manipulations were

removed or when they were applied properly to all minorities in the

City, the City’s hasty and unscientific methods to adjust the

50

The plaintiffs argue, however, that the City’s districts do

shatter the ten percent threshold once the proper measurement of

voters in utilized. They argue that they have thus made out a

prima facie case of vote dilution. Plaintiffs contend that data

available to the City indicated that areas with concentrated

Hispanic populations had an extremely high number of noncitizens.

They argue that given this well-known fact, the City should have

recognized that total population would not serve as a meaningful

proxy for potentially eligible voters--areas with concentrations of

Hispanics would have a far larger population than potentially

eligible voters. By nevertheless continuing to use total

population, the City devalued the votes of residents in districts

that did not contain concentrations of Hispanic voters. They argue

that when measured against the proper standard, the City’s

districts displayed a maximum variance well in excess of the

allowable ten percent. We have had cause before to note the high

number of Hispanic residents of Houston who are not citizens. See

Campos v. City of Houston, 113 F.3d 544, 547 (5th Cir. 1997)

(census figures indicate 45.8% of adult Hispanics in City are

census might well have created a violation. However, plaintiffs

have not shown, or even claimed, that this is the case. And even

if the ten percent de minimis threshold is not viewed as an

absolute bar, we cannot say on this sparse record that a reasonable

fact finder could find that the City’s decisions here evidenced the

“bad faith, arbitrariness, or invidious discrimination” courts have

required in cases involving variations under ten percent. See Daly

v. Hunt, 93 F.3d 1212, 1220-21 (4th Cir. 1996).

51

noncitizens). And the plaintiffs have produced data that appears

to clearly show that when the CVAP of Houston districts is

compared, the maximum variance indeed exceeds the ten percent

threshold. If the City were required by the Equal Protection

Clause to use CVAP rather than total population in crafting its

districts, then, summary judgment for the city would have been

inappropriate. However, while this is a close question, we find

that the choice of population figures is a choice left to the

political process. Houston did not violate the Equal Protection

Clause.

Plaintiffs’ argument is straightforward. A Reynolds claim is,

after all, a “‘one person, one vote’” claim. See Reynolds, 84

S.Ct. at 1380 (quoting Gray v. Sanders, 83 S.Ct. 801, 809 (1963)).

Since the inquiry focuses on the dilution of votes, it would be

improper to allow the votes of two adult citizens to be weighed

equally with the vote of a single adult citizen merely because the

latter happened to live in proximity to a noncitizen ineligible to

vote.16 Plaintiffs concede that under many, if not most,

16

Clearly, the United States Constitution does not forbid the

states from restricting the franchise to citizens. See, e.g.,

Sugarman v. Dougall, 93 S.Ct. 2842, 2851 (“This Court has never

held that aleins have a constitutional right to vote or to hold

high public office under the Equal Protection Clause. Indeed,

implicit in many of this Court’s voting rights decisions is the

notion that citizenship is a permissible criterion for limiting

such rights”); id. at 2851 n.13 (“In congressional debates leading

to the adoption of the Fourteenth Amendment, there is clear

evidence that Congress not only knew that as a matter of local

practice aliens had not been granted the right to vote, but that

52

circumstances this distinction will be irrelevant--generally, the

ineligible to vote or to register to do so (whether felons, minors,

or noncitizens) can be assumed to be evenly distributed throughout

the area to be districted, and the usage of total population is

thus an acceptable surrogate for measuring potential voters. When,

however, a districting body knows that large numbers of those

ineligible to vote are disproportionately concentrated in certain

areas, it can no longer in good faith use total population as a

proxy for potential voters. Instead, it is obligated to deploy a

more sophisticated measurement, such as CVAP.

Two circuit courts have addressed this issue. The Ninth

under the amendment they did not receive a constitutional right of

suffrage or a constitutional right to participate in the political

process of state government, and that, indeed, the right to vote

and the concomitant right of participation in the political process

were matters of local law.”). See also Foley v. Connelie, 98 S.Ct.

1067 at 1070 (1978) (“. . . we have recognized ‘a state’s

historical power to exclude aliens from participation in its

democtractic political institutions’ . . . as a part of the

sovereign’s obligation ‘to preserve the basic conception of a

policial community,’” quoting Dougall, 93 S.Ct. at 2850). The

voting rights protections of the Fifteenth, Nineteenth, Twenty-

Fourth and Twenty-Sixth Amendments are restricted to “citizens,” as

is section 2 of the Voting Rights Act, 42 U.S.C. § 1973. The

protection of the Fourteenth Amendment’s Privileges And Immunities

Clause, which has been said to embrace “the right to vote for

national officers,” Twining v. New Jersey, 29 S.Ct. 14, 19 (1908),

is limited to “citizens.” And, the congressional representation

penalty of section 2 of the Fourteenth Amendment is brought into

play only by denial of voting rights (except for rebellion or

other crime) to adult, male inhabitants who are “citizens.”

On the other hand, we are also aware of no provision of the

Constitution which expressly or by clear implication prohibits the

states from extending the franchise to lawfully resident aliens.

53

Circuit has found that total population is not only a permissible

method to measure population when known significant concentrations

of those not eligible to vote exist, but has also suggested that

its usage may be required under the Equal Protection Clause in some

circumstances. See Garza v. County of Los Angeles, 918 F.2d 763,

775 (9th Cir. 1990), cert denied, 111 S.Ct. 681 (1991) (approving

court ordered plan using total population and opining that use of

CVAP “would constitute a denial of equal protection to these

Hispanic plaintiffs”). The Fourth Circuit, confronting the

analogous issue of districting when persons below the voting age

were unevenly distributed, has stated that the choice between total

population or a measurement of potential voters is left to the

legislative body. In doing so, it implicitly rejected the Ninth

Circuit’s contention that a districting body might be required by

the Equal Protection Clause to use total population as a baseline.

See Daly v. Hunt, 93 F.3d 1212, 1227 (4th Cir. 1996) (remanding on

other grounds). However, in a powerful dissent in Garza, Judge

Kozinski concluded that, at least when the plan is court ordered,

the Constitution requires the use of a measurement that accurately

tracks potential voters. See Garza, 918 F.2d at 785.

The Supreme Court has from the beginning of this line of cases

been somewhat evasive in regard to which population must be

equalized. See Reynolds, 84 S.Ct. at 1390 (state should attempt to

apportion “so that each [districting unit] has an identical number

54

of residents, or citizens, or voters”). However, it has also

indicated with some clarity that the choice has political overtones

that caution against judicial intrusion. See Burns v. Richardson,

86 S.Ct. 1286, 1297 (1966) (state not required to use total

population figures, since the choice of measurement “involves

choices about the nature of representation with which we have been

shown no constitutionally founded reason to interfere”). The

debate does indeed involve questions about the nature of

representative democracy. As Judge Kozinski’s dissent recognizes,

and the Daly opinion outlines, there is nothing inherent in the

concept of representative democracy that requires the embrace of

the plaintiffs’ position.

The choice presented is, in Judge Kozinski’s terms, one

between electoral equality and representational equality. While

for the most part obscured by the happy coincidence that eligible

voters will frequently track the total population evenly--in which

case either measurement would produce similar results, and total

population will probably be used since it is easier to gather--this

is a fundamental and difficult question. If total population

figures are used in an area in which potentially eligible voters

are unevenly distributed, the result will necessarily devalue the

votes of individuals in the area with a higher percentage of

potentially eligible voters. The large populations in the other

district will leverage the votes of the smaller number of eligible

55

voters there. However, if a more carefully calibrated measurement

is embraced in order to serve this principle of individual

electoral equality, the area with the smaller number of voters will

find itself relatively disadvantaged. Despite the fact that it has

a larger population--and thus perhaps a greater need for government

services than the other community--it will find that its political

power does not adequately reflect its size. In addition, it could

be argued that because the representative chosen from such a

district will have a larger number of constituents, the ability of

her constituents--whether or not they are potential voters--to

petition and voice their opinions will be proportionately reduced.

See Garza, 918 F.2d at 775. But see Daly, 93 F.3d at 1226-27 &

n.12 (expressing doubt regarding validity of equal access

argument). If one accepts the principle of representational

equality--that representatives are chosen by a district’s voters,

but should represent all persons resident therein--these results

may be unacceptable. The choice between these two models is

stark, and because it is rarely encountered, historical and legal

guidance is sparse.

Judge Kozinski makes a powerful case that the general tenor of

the Court’s opinions mandates protection of the individual

potential voter. Certainly, to take just a few examples contained

in Judge Kozinski’s comprehensive summary, there is ample language

in the opinions that strongly implies that it is the right of the

56

individual potential voter that must be protected. See, e.g.,

Reynolds, 84 S.Ct. at 1384 (“the Equal Protection Clause guarantees

the opportunity for equal participation by all voters in the

election of state legislators. Diluting the weight of votes

because of place of residence impairs basic constitutional rights

under the Fourteenth Amendment . . . . To the extent that a

citizen’s right to vote is debased, he is that much less a citizen

. . . . the basic principle of representative government remains,

and must remain, unchanged--the weight of a citizen’s vote cannot

be made to depend on where he lives”); Gaffney, 93 S.Ct. at 2328

(noting that among the variations that made absolute fidelity to

population equality impossible was the gap between total population

and potential voters, and stating that “if it is the weight of a

person’s vote that matters, total population...may not accurately

reflect that body of voters”).

But as Judge Kozinski admits, and as the Daly court

highlights, other language can be found that implies that

representational equality is the ideal. See, e.g., Mahan, 93 S.Ct.

at 983 (“the basic constitutional principle [is] equality of

population among the districts”). While it does appear that the

numerical weight of references is on the side of electoral

equality, it is difficult to attach controlling significance to

this fact, since in almost all cases the Court was dealing with

situations in which total population was presumptively an

57

acceptable proxy for potentially eligible voters. Under such

circumstances, we would expect to find the terms used

interchangeably, with perhaps a slight bias toward the more

historically resonant phrase--unquestionably, one-person, one-vote.

Support for this interpretation is provided by the fact that some

of the language Judge Kozinski relies on is contradicted by

statements within the same opinion. See Reynolds, 84 S.Ct. at 1385

(“We hold that, as a basic constitutional standard, the Equal

Protection Clause requires that the seats . . . must be apportioned

on a population basis”); Westberry v. Sanders, 84 S.Ct. 526, 530

(1964) (“To say that a vote is worth more in one district than in

another would . . . run counter to our fundamental ideas of

democratic government”); id. at 535 (“our Constitution’s plain

objective of making equal representation for equal numbers of

people the fundamental goal for the House of Representatives”).

While fully recognizing the force of Judge Kozinski’s argument, we

think that the cases he cites are not decisive, given the strong

possibility that much of the language he relies on may be traceable

to the use of terms interchangeably in a context where their

meaning does not diverge.

Instead, we turn to Burns, where the Court directly confronted

an actual differential between the concepts. We read Burns as

compelling rejection of the Garza majority view that the Equal

Protection Clause mandates inclusion of aliens in the population

58

base of electoral districts against which the equality requirements

of Reynolds are applied. Burns states:

“Neither in Reynolds v. Sims nor in any other decision

has this court suggested that the States are required to

include aliens, transients, short-term or temporary

residents, or persons denied the vote for conviction of

crime in the apportionment base by which their

legislators are distributed and against which compliance

with the Equal Protection Clause is to be measured. The

decision to include or exclude any such group involves

choices about the nature of representation with which we

have been shown no constitutionally founded reason to

interfere. Unless a choice is one the constitution

forbids, [citation] the resulting apportionment base

offends no constitutional bar, and compliance with the

rule established in Reynolds v. Sims is to be measured

thereby.

. . . .

Hawaii’s special population problems might well have

led it to conclude that state citizen population rather

than total population should be the basis for

comparison.” Id. at 1296-97 (footnote omitted).

For this reason, we believe the district court erred to the extent

it relied on the Garza majority dicta.17 Judge Kozinski argues that

17

Our conclusion in this regard is also strengthened by the fact

that, as observed in note 16, supra, the constitution does not

preclude states from denying the franchise to aliens while it

explicitly protects “citizens” from such denial on diverse

specified grounds. Moreover, the Equal Protection Clause has been

construed to in most cases preclude the denial of the franchise to

citizens by means of property ownership or similar qualifications

for voting. See, e.g., Kramer v. Union Free School District, 89

S.Ct. 1886, 1889 (1969) (“close scrutiny . . . is applicable to

statutes denying the franchise to citizens who are otherwise

qualified by residence and age;” second emphasis added , footnote

omitted). In these circumstances, it is, at the very least,

counter-intuitive to say that the Equal Protection Clause mandates

that the right of citizens to vote be diluted to the extent

necessary to prevent dilution of a representational right,

unmentioned in the Constitution, of aliens who have no right to

59

Burns should be determinative for electoral equality, since there

the Court allowed a plan that used an even more nuanced measure of

voting strength--registered voters. But we are reluctant to read

Burns’ allowance of such a measure into a command in the face of

what appears to us to be a clear statement to the contrary in the

same opinion--that the choice between measurements “involves

choices about the nature of representation with which we have been

shown no constitutionally founded reason to interfere”. Burns at

1297.

We also note that the drafters of the Fourteenth Amendment, on

which Reynolds itself rests, do appear to have debated this

question, and rejected a proposal rooted in--among other things--

the principle of electoral equality. On December 5, 1865,

Representative Stevens introduced a constitutional amendment which

apportioned congressional representation among the states

“according to their respective legal voters; and for this purpose

none shall be named as legal voters who are not either natural-born

citizens or naturalized foreigners.” See Joseph T. 60 Sneed III,

Footprints on the Rocks of The Mountain: An Account of the

Fourteenth Amendment at 35 (1997) (Footprints). Debates over the

precise basis for apportionment of Congress among the states proved

a contentious issue throughout the process that led to the creation

of section 2 of the Amendment. The overriding question driving

vote.

60

this debate was the issue of how to deal with the denial of the

franchise to African-Americans. However, as the inclusion of a

citizenship provision indicates, an undercurrent of this debate was

the recognition by many representatives that aliens were unevenly

distributed throughout the country. In addition, several western

states contained an overabundance of males, which, as women were

generally not eligible to vote, would disadvantage them relative to

settled eastern areas in which the genders were balanced if total

population rather than eligible voters were used. Some of the

debate over whether to base apportionment on potential voters,

citizens, or population can be tied to this issue.18

To be sure, the overall context in which the amendment was

drafted prevents any firm conclusion being drawn as to the framer’s

intent regarding the question before us. However, we find it is of

some significance that the proponents of the Fourteenth Amendment

had a meaningful debate on the question, which cannot be said to

18

See Footprints at 103-104 (noting proposals to use citizenship

as a benchmark faced opposition from northern states with large

alien populations that might imperil passage); 145 (relating speech

of Senator Hendricks on February 16, 1866, in which he claimed

opposition of New England to proposal to use eligible voters rather

than total population was grounded in part in the relative

preponderance of women in those states); 415 (reviewing debate on

proposed language of section 2 basing representation on

citizenship, in which representative from New England argued its

omission of 2.1 million unnaturalized foreigners would unjustly

weaken the North, while proponent argued that a citizen of

Massachusetts should not “be entitled to vote on behalf of

unnaturalized foreigners who happened to live in Massachusetts”).

61

have been definitively resolved.19 While the final version of

section 2 provided generally for the use of total population

figures for purposes of allocating the federal House of

Representatives among the states, it also included a mechanism to

insure that egregious departures from the principle of electoral

equality--the disenfranchisement of adult male “citizens”--would be

penalized. Bearing in mind that analogies drawn from the federal

system are not always applicable to the states, see Reynolds, 84

S.Ct. at 1386-89, we have some difficulty in reading the Equal

Protection Clause to require the adoption of a particular theory of

political equality.20

19

The evidence suggests that proponents of absolute electoral

equality compromised this principle in order to assure passage of

the amendment. See Footprints at 415 (noting that Sherman stated

that while he preferred a provision that would be based on male

citizens, the time had come to unite around a common proposal and

he would yield to the decision of the Republican caucus); Reynolds

at 1399, 1402 (Harlan J. dissenting).

It would thus be difficult to read the eventual passage of the

total citizen provision as an endorsement by a majority of the

Congress of representational equality, even putting aside the

electoral equality provisions of the second section of section 2.

20

Under Article I, section 2, of the Constitution, the number of

representatives which each state would have in the United States

House of Representatives was determined on the basis of “the whole

number of free persons” (“excluding Indians not taxed”) plus “three

fifths of all other persons” (“but each State shall have at least

one Representative”). Voting qualifications were whatever was

specified by each state for the most numerous branch of its

legislature. With ratification of the Thirteenth Amendment on

December 6, 1865, all were “free persons,” so the former slave

states would presumably have increased representation in Congress

despite still denying the vote to African-Americans. This problem,

which faced Congress in late 1865 and the first part of 1866, could

62

While hardly determinative, our review of the history of the

amendment cautions against judicial intrusion in this sphere--

either for or against either particular theory of political

equality. Given this, and given the Court’s failure, on our

be addressed in different ways. Denial of the right to vote on

grounds of race could be expressly proscribed. That route was

taken in the Fifteenth Amendment, but not in the Fourteenth.

Representation in the federal House could be allocated among the

states on the basis of the number of potentially eligible voters.

That choice, too, was rejected. The solution ultimately adopted in

the Fourteenth Amendment was to retain the existing structure of

Article 1, section 2–including the right of the states to prescribe

voting qualifications and the entitlement of each state to at least

one Representative–while eliminating the “three fifths” clause and

providing for a proportional reduction in the federal House

representational base of any state to the extent “the right to

vote” (in federal or most state elections) was “denied” (except for

rebellion or other crime) to adult male “citizens” of the state.

The essential focus of the debates was on two matters: allocating

representation of the states in the United States House of

Representatives, and the right of African-Americans to vote. It

was not on any general representational as opposed to electoral

equality theory of government. Both Footprints and Justice

Harlan’s dissent in Reynolds make plain that the intent of the

framers of the Fourteenth Amendment, as reflected in its

legislative history, was to continue to leave electoral and

representational rights in the control of the states to the same

extent as they had been before the Civil War except that a state’s

representation in the federal House of Representatives would be

subject to reduction on account of denial by it of “the right to

vote” of its adult, male “citizens.” While the majestic and open-

ended generality of the Equal Protection Clause must be assumed to

have justified Reynolds’ failure to accord controlling significance

to this legislative history, that majestic generality casts no

meaningful light whatever on whether the states were thereby

commanded to chose undiluted representational equality over

undiluted electoral equality, or vice versa, where one or the other

must be diluted, or were essentially left as free to make that

choice as they had previously been.

Plaintiffs make no argument that state law or the Houston City

Charter mandates use of CVA population.

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reading, to speak clearly to such a vital question, we see no

justification to depart from the position of Daly. We reject the

conclusions of both the dissent in Garza and any reading of the

majority opinion in that case that would mandate the use of total

population figures on equal protection grounds. We thus conclude

that the district court correctly determined that the plaintiffs

failed to create an issue of genuine material fact in respect to

the City’s adherence to the one-person, one-vote principle.

Conclusion

The record is not such as to sustain a finding that race

predominated in the City’s decision-making. While the plaintiffs

were able to point to bits and pieces of the City’s plan that might

have created a valid Shaw claim, they failed to produce evidence

that would have surmounted the summary judgment threshold. The

propriety under the Equal Protection Clause of using total

population rather than a measure of potential voters also presents

a close question. But in face of the lack of more definitive

guidance from the Supreme Court, we conclude that this eminently

political question has been left to the political process.

For the reasons stated, the judgement of the district court is

AFFIRMED.

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