League of United Latin American Citizens, Council No. 4434 v. Clements

TABLE OF CONTENTS

I. Facts . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Motion to Remand . . . . . . . . . . . . . . . . . . . . 9

A. The Authority of the Texas Attorney General . . . . . 10

B. Other Motions . . . . . . . . . . . . . . . . . . . . 18

C. The Intervenors . . . . . . . . . . . . . . . . . . . 20

D. Consent Decrees . . . . . . . . . . . . . . . . . . . 24

E. Chisom v. Edwards . . . . . . . . . . . . . . . . . . 29

F. Federalism . . . . . . . . . . . . . . . . . . . . . 32

III. Racial Bloc Voting . . . . . . . . . . . . . . . . . . . 32

A. Whitcomb v. Chavis and White v. Register . . . . . . 38

B. The 1982 Amendments . . . . . . . . . . . . . . . . . 46

C. Thornburg v. Gingles . . . . . . . . . . . . . . . . 49

D. Partisan Politics . . . . . . . . . . . . . . . . . . 57

E. Two Objections . . . . . . . . . . . . . . . . . . . 64

IV. Other Legal Errors Affecting the Vote Dilution Inquiry . 71

A. Cohesiveness of Different Minority Groups . . . . . . 71

B. Relevance of Small Number of Minority Lawyers . . . . 75

C. Past Discrimination . . . . . . . . . . . . . . . . . 77

V. Texas' Linkage Interest . . . . . . . . . . . . . . . . 83

A. The Structure of Texas District Courts . . . . . . . 84

B. The Role of Function Under § 2 . . . . . . . . . . . 85

C. Weight of State's Interest is Matter of Law . . . . . 90

D. Determining the Weight of the Linkage Interest . . . 92

E. Other Means to Accommodate the Linkage Interest . . . 102

F. Balancing the State's Interest . . . . . . . . . . . 105

VI. Application of Law to Each County . . . . . . . . . . . 106

A. Dallas County . . . . . . . . . . . . . . . . . . . . 107

B. Harris County . . . . . . . . . . . . . . . . . . . . 115

C. Tarrant County . . . . . . . . . . . . . . . . . . . 125

D. Travis County . . . . . . . . . . . . . . . . . . . . 130

E. Bexar County . . . . . . . . . . . . . . . . . . . . 135

F. Jefferson County . . . . . . . . . . . . . . . . . . 138

G. Midland County . . . . . . . . . . . . . . . . . . . 141

H. Lubbock County . . . . . . . . . . . . . . . . . . . 143

I. Ector County . . . . . . . . . . . . . . . . . . . . 145

VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . 147

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-8014

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

COUNCIL NO. 4434,

Plaintiffs-Appellees,

and

JESSE OLIVER, ET AL.,

Intervening Plaintiffs-

Appellees,

versus

WILLIAM P. CLEMENTS, Etc.

Defendants,

JIM MATTOX, ET AL.,

Defendants-Appellees-

Appellants,

versus

JUDGE F. HAROLD ENTZ, Etc.,

JUDGE SHAROLYN WOOD, Etc., and

GEORGE S. BAYOUD, JR., Etc.,

Defendants-Appellants,

and

TOM RICKHOFF, SUSAN D. REED, JOHN J.

SPECIA, JR., SID L. HARLE, SHARON

MACRAE and MICHAEL P. PEDAN, Bexar

County, Texas State District Judges,

Appellants.

Appeal From the United States District Court

for the Western District of Texas

(August 23, 1993)

Before POLITZ, Chief Judge, KING, JOHNSON, GARWOOD, JOLLY,

HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, and

DeMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Over the past fifty years, the steady march of civil rights

has been to New Orleans and this court. It continues but the

demands have changed. Relatively clear lines of legality and

morality have become more difficult to locate as demands for

outcomes have followed the cutting away of obstacles to full

participation. With our diverse ethnic makeup, this demand for

results in voting has surfaced profound questions of a democratic

political order such as the limits on rearranging state structures

to alter election outcomes, and majority rule at the ballot box and

even in legislative halls, questions Congress has provoked but not

answered. All this can make a simple voting rights case seem

difficult, certainly so with state judges elected on a partisan

ballot. Today our difficulties of fitting the Act to the unique

features of the state judiciary and sorting out racial and partisan

voting are large but the merits of the claims are easily grasped.

As we will explain, there is a background to the debate on the

large issues that must not be obscured. The evidence of any

dilution of minority voting power is marginal at best. We are not

persuaded that a violation of the Voting Rights Act has been proved

and we reverse.

I. Facts

On July 11, 1988, ten individual voters and the League of

United Latin American Citizens sued in federal district court

alleging that Texas' system of electing state trial judges violated

§ 2 of the Voting Rights Act and the Fourteenth and Fifteenth

2

Amendments in several Texas counties.1 They sued the Governor of

Texas,2 the Attorney General, the Secretary of State, and the Chief

Justice of the Supreme Court as chair of the Judicial Districts

Board. Because this board is responsible for reapportioning the

judicial districts, the suit also named each of its members as

defendants. On March 12, 1989, the district court granted the

motions to intervene of the Houston Lawyers' Association, the

Legislative Black Caucus, and two Texas district court judges, in

their individual capacities--Sharolyn Wood, 127th District Court in

Harris County, and Harold Entz, 194th District Court in Dallas

County.

As they have throughout Texas history, Texas voters elect

their trial judges in county-wide elections. A voter may vote for

all of the trial courts of general jurisdiction in her county. At

the same time, each trial court is a distinct court, such as the

134th judicial district court of Dallas County, with county-wide

jurisdiction and its own history of incumbents. A candidate runs

for a particular court. Plaintiffs contend that electing trial

judges county-wide violates § 2 of the Voting Rights Act by

impermissibly diluting the voting power of Hispanics and blacks.

Plaintiffs proceed on behalf of language and ethnic minorities in

different combinations in different counties. Depending on the

1

Plaintiffs originally challenged the election of district

judges in 44 counties, but by trial, winnowed their targets to

the following nine urban counties: Harris County, Dallas County,

Travis County, Tarrant County, Jefferson County, Ector County,

Bexar County, Midland County, and Lubbock County.

2

Plaintiffs early in the case dismissed the Governor.

3

county--more specifically, the numbers--they argue that Hispanic

voters, black voters, or the combination of both Hispanic and black

voters "have less opportunity than other members of the electorate

to participate in the political process and elect representatives

of their choice." Plaintiffs aimed their constitutional challenge

at Article 5, § 7a(i) of the Texas Constitution, which precludes

the creation of judicial districts smaller than a county absent

approval by a majority of the voters in that county. They argued

that this limitation on the power to redistrict of the Judicial

Districts Board, chaired by defendant Chief Justice Phillips, was

enacted with discriminatory intent.

On November 8, 1989, the district court found county-wide

elections violated § 2 in all nine counties, enjoined future

elections, divided the nine counties into electoral subdistricts,

and ordered a nonpartisan election for May 5, 1990, with any runoff

to be held on June 2. The district court rejected the

constitutional arguments, finding that plaintiffs had failed to

prove that Texas instituted or maintained the electoral system with

discriminatory intent.3 Intervenors Judge Wood and Judge Entz

appealed. Unhappy with nonpartisan elections ordered by the

district court, the Texas Attorney General first moved the court to

alter its interim plan. After the court denied the motion, the

3

This ruling was not appealed.

4

Attorney General filed a notice of appeal.4 We stayed the district

court's order pending appeal.

In our first effort in this case, a panel held that the Act

covers judicial elections but concluded that electing district

judges in county-wide elections in Texas did not violate § 2.

League of United Latin American Citizens v. Clements, 902 F.2d 293

(5th Cir. 1990) ("LULAC I"). We considered the history of judicial

elections in Texas and the office of district judge--the court of

general jurisdiction. We held that Texas had a special interest in

linking the jurisdictional and electoral bases of the trial courts,

an interest accented by unwavering support throughout Texas

history. Finding no truly informing analogues for resolving such

an attack on at-large voting supported by a state interest unique

to this judicial office, we looked to the weighing constructs

familiar to the Act. We concluded that, as a matter of law, the

state interest linking jurisdiction and electoral base outweighed

its potentially dilutive effect. LULAC I, 902 F.2d at 308.

A majority of this court sua sponte ordered reconsideration of

the panel decision en banc. League of United Latin American

Citizens v. Clements, 914 F.2d 620 (5th Cir. 1990) ("LULAC II").

The en banc court held by a 7-6 vote that § 2 of the Act did not

4

Former Secretary of State George S. Bayoud, Jr., a named

party defendant, objected to the Attorney General's decision not

to appeal immediately. Bayoud took the position that as chief

elections officer of the State of Texas, he was the Attorney

General's client and the Attorney General must represent his

interests. Bayoud obtained independent counsel and filed a

notice of appeal himself.

5

apply to judicial elections, rejecting the contrary view of the

panel.

Houston Lawyers' Association, as intervenor, and LULAC

petitioned for certiorari. The Supreme Court granted both

petitions, consolidated them, and reversed, holding that the Voting

Rights Act applies to state judicial elections. Houston Lawyers'

Ass'n v. Attorney General, U.S. , 111 S.Ct. 2376 (1991).

The Supreme Court also held that Texas has a special interest in

linking the electoral and jurisdictional bases of district judges.

Id. at , 111 S.Ct. at 2381. The Court did not agree, however,

that this state interest outweighed its dilutive effect in all

cases, as a matter of law. Rather, the Court held that balancing

is a case-specific enterprise, struck by inquiry into the totality

of the circumstances. Justice Stevens explained that the state

interest in linkage was to be weighed in deciding "whether a § 2

violation occurred." Id. Justice Stevens made plain that

assessing the linkage interest is part of the determination of

liability and not remedy alone. The Court effectively came down

between the "goes only to remedy" view of the Department of Justice

and the "matter of law" view of the concurring opinion in LULAC II.

On remand, the en banc court in turn remanded to the panel.

On January 27, 1993, a majority of the panel affirmed the district

court's findings in eight of the nine counties. The panel

concluded that plaintiffs failed only in Travis County, a

Democratic stronghold. League of United Latin American Citizens v.

Clements, 986 F.2d 728 (5th Cir. 1993) (LULAC III). For a second

6

time, this court decided, on its own motion, to hear the case en

banc.

Although the panel opinion had been vacated, General Morales

urged a legislative solution to reforming judicial elections. He

submitted a plan to the legislature calling for the election of

judges from single-member districts in all Texas counties with

populations over 100,000. Recognizing that the Texas Constitution

mandates the current system of electing trial judges, see Tex.

Const. Art. 5, §§ 7, 7a(i), Morales asked the legislature to submit

a constitutional amendment to the voters to implement his plan and

urged them to do so in time to moot the LULAC lawsuit. Doubting

the necessary legislative support for an amendment, the Governor,

the Lieutenant Governor, and minority lawmakers urged Morales to

achieve the same result through settlement. Morales drafted an

agreement providing for the election of the vast majority of judges

in the nine urban counties by subdistricts. Democratic officials

who were parties to the suit quickly agreed. But Morales could not

obtain the agreement of Chief Justice Phillips, nor the district

judges, Judge Wood and Judge Entz.

When a proposed resolution approving the "agreement" reached

the floor of the Senate there was no quorum because all but two of

the thirteen Republican senators walked out. The Senate later

reconvened as a Committee of the Whole, not in formal session, and

voting along party lines, adopted a resolution expressing its

"sentiment" in support of a federal decree. Voting in the House

also followed party lines. Nothing with the force of law could be

7

obtained from the legislature. When the dust settled, the only

legislative action was this expression of sentiment in support of

a federal decree, and that from a Senate convened in a Committee of

the Whole. Failing to obtain any positive enactment from the

legislature, Morales requested that we remand to the district court

for a hearing and entry of his proposed "consent" decree.

By the decree, 152 judges would run in districts smaller than

a county, while 22 would continue to be elected at-large. District

boundaries would mirror state representative districts in Dallas,

Harris, Bexar, and Jefferson counties. Justice of the peace

districts would be used in Tarrant County. In Lubbock, Ector, and

Midland counties, judges would run from the existing commissioners

court districts. Anticipating the question of how the case can be

settled without the agreement of the district court judges, the

plan allows Judges Wood and Entz to be elected in a county-wide

election. The stated purpose was to deny the defendant district

judges standing to object.

Chief Justice Phillips, Judge Wood, and Judge Entz object to

the proposed decree and oppose the motion to remand. In addition,

three former Chief Justices of Texas, Joe R. Greenhill, Robert W.

Calvert, and John L. Hill, are before us as amici objecting to

remand--and denying the authority of the Attorney General to bind

the State. Judges Wood and Entz have moved to realign General

Morales with the plaintiffs, and allow their assumption of the

8

defense of the current system.5 Judge Wood has also moved to

disqualify the Texas Attorney General as counsel for the State.

When settlement negotiations began, Chief Justice Phillips obtained

independent counsel.6 General Morales responded by moving to

disqualify Phillips' counsel. Finally, immediately after oral

argument, plaintiffs filed a notice of nonsuit of Chief Justice

Phillips and the Texas Judicial Districts Board.

II. Motion to Remand

We are asked to remand to the district court for entry of a

consent decree, although some of the parties wish to proceed with

the appeal. The Attorney General argues that these non-consenting

parties are no obstacle. Chief Justice Phillips, General Morales

argues, was sued in his official capacity as chair of the Judicial

Districts Board and the Attorney General is the exclusive lawyer

for the State of Texas. On its face, this is not a remarkable

contention. However, General Morales also maintains that in his

role as lawyer for the State, he need not represent the State's

policymakers; he can ignore them and impose his own views. That is

remarkable. The force of this contention is that the Attorney

General is the sole arbiter of State policy when the State's

interest is in litigation. This argument is put forward despite

the fact that it leaves his scrambling for legislative support

5

Judge Wood also filed a motion to strike the Attorney

General's Notice of Action Toward Settlement, which we denied

before oral argument.

6

We granted Chief Justice Phillips' motion requesting that

he be allocated time at oral argument.

9

wholly inexplicable; under his presently claimed power, the

Attorney General did not need to have the "settlement" adopted by

statute. In any event, Texas law does not sanction his actions.

Nor are we persuaded that Defendant-Intervenors, Judges Entz and

Wood, lack standing to object to a proposed consent decree that

will allow them to run county-wide. We deny the motion to remand.

A. The Authority of the Texas Attorney General

General Morales is not the first Texas Attorney General to

have staked such a claim of authority. We rejected a similar

effort in Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) (en banc).

Baker challenged Texas' anti-sodomy statute, suing Holt, the Dallas

City Attorney, and Wade, the Dallas County District Attorney. The

district court certified a defendant class of officials responsible

for enforcing the statute, with Holt and Wade as representatives,

and the Attorney General of Texas intervened on behalf of the

State. After the district court declared the statute

unconstitutional, Danny E. Hill, Potter County's district attorney,

filed a notice of appeal, concerned that the Attorney General might

decide not to appeal. Hill was a member of the class, but was not

a named defendant and had not sought to intervene. Hill's concern

was realized when the Attorney General appealed but then withdrew

the notice. After failing to persuade the Texas Supreme Court to

order the Attorney General to pursue the appeal and unable to

obtain leave to intervene from the district court, Hill asked this

court for leave to intervene on appeal. We granted this request,

explaining:

10

[Hill] would be seriously prejudiced were he not allowed

to intervene, whereas allowing the appeal to proceed

would prejudice no one. As a state official empowered by

Texas law to enforce criminal laws, his interest and its

impairment by the district court's judgment cannot be

questioned. . . .

In this case where the district court has rejected

binding Supreme Court authority, the circuit court is

entitled to conclude as a matter of law that those

interests were inadequately represented by those who

failed to pursue the appeal and that the state officer

seeking to intervene was a proper party to do so.

Id. at 292.

Attorney General Mattox made a considered decision to accept

the district court's declaration of unconstitutionality. That was

a basic policy choice. Baker's relevant instruction lies in the

fact that Attorney General Mattox's decision did not control.

Baker rejected the very power claimed by this Attorney General.

The power he would exercise cannot be squared with Baker.

That Attorney General Mattox decided to accept the ruling of

the district court and Morales reaches for a similar result by a

"settlement" fails to distinguish our holding in Baker. It does

not respond to our holding that the Attorney General cannot bind

state officials, his clients, to his own policy preferences. It is

asserted that Hill as a district attorney, one of hundreds in

Texas, was charged with the duty of enforcing the statute held

unconstitutional. The law enforcement responsibility of a district

attorney and that of the Chief Justice as chair of the

redistricting board, however, do not differ in relevant ways.

Indeed, that the Chief Justice may defend the suit is an a fortiori

case under Baker. After all, his judicial duties aside, the Chief

Justice's enforcement responsibilities under the redistricting

11

provisions of state law are statewide. A district attorney's

duties, however, run only to the county line. See Crane v. Texas,

766 F.2d 193 (5th Cir. 1985).

The Texas Constitution requires the Chief Justice to supervise

the state district courts. Article 5, § 7a established the

Judicial Districts Board and made the Chief Justice its chair.

Tex. Const. Art. 5, § 7a(a) and (b). The constitution charges the

Board with the duty of reapportioning the judicial districts as the

need arises. Id. § 7a(f). Among other things, the Board is

required to consider a district's case load and population in its

reapportionment decisions. Tex. Gov't Code Ann. § 24.945 (Vernon

1988). Of special importance to this case, the Board may not

create districts smaller than a county without a general election.

Tex. Const. Art. 5, § 7a(i); Tex. Gov't Code Ann. § 24.945(e)

(Vernon 1988). A redistricting plan may not be proposed or adopted

even in anticipation of such an election. Id. Indeed the district

court denied leave to intervene in this suit to Midland County

concluding it was not a real party in interest. A panel of this

court agreed, observing that, unlike the Judicial Districts Board,

the county lacked "the power to re-shape judicial districts."

LULAC v. Clements, 884 F.2d 185, 187 (5th Cir. 1989). Given the

Chief Justice's role as chair of the Board and his state

constitutional duties to manage state judicial districts and the

efficiency of the courts, his contention that he has the authority

to defend this lawsuit if the Attorney General will not is

compelling. If a district attorney has a sufficient interest in

12

protecting the laws he is duty-bound to enforce, we are persuaded

that the Chief Justice as chairman of the Judicial Districts Board

has a sufficient interest in protecting the current district court

system.7

The concerns raised by the Baker dissent are not present here.

The dissent was troubled by the fact that Hill was neither a named

defendant nor a class representative, had never sought to intervene

in the district court, and was not a named party when he filed his

appeal. 769 F.2d at 294-95 (Rubin, J., dissenting). Here, Chief

Justice Phillips has been a named defendant from the outset.

The state courts have had little occasion to face such a bold

claim of authority. The few Texas cases that have grappled with

the Attorney General's authority offer him little comfort. Morales

points to Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1991), but in

Terrazas, General Morales also failed in an effort to "settle" a

legislative reapportionment case. Following the 1990 census,

plaintiffs sued various state and county officials to prevent the

use of the new census in reapportioning the legislature, because it

allegedly undercounted minorities. The legislature proceeded with

reapportionment and plaintiffs also challenged the resulting plans.

General Morales defended the legislature's plans, lost at trial,

and appealed directly to the Texas Supreme Court. Then, Morales

7

The dissent argues that Chief Justice Phillips was joined

solely as a jurisdictional party for Eleventh Amendment purposes.

Even if that were true, and it is not, see supra page 4, it would

not answer the real question: if the State of Texas is the real

party in interest, does the Attorney General possess exclusive

authority to choose whether the State's interests will be

asserted on appeal? In Baker, we answered in the negative.

13

agreed with the plaintiffs to settle the senate reapportionment

challenge. The agreement included a redistricting plan that was

submitted to the trial court and promptly accepted by it.

Thereafter, five individuals, not parties to the suit, requested

the Supreme Court of Texas to direct the trial court to vacate its

judgments reconfiguring the senatorial districts, order the

Attorney General to rescind the agreement, and direct the Secretary

of State to withdraw submission of the plan for preclearance.

A plurality directed the trial court to vacate its judgments,

but refused relief against the Attorney General. Four justices

held that the trial court erred by failing to weigh all affected

interests before entering the proposed decree. In Justice Hecht's

words, "a district court cannot order a reapportionment plan for

the State based on nothing more than an agreement of the Governor,

the Attorney General, and a few citizens." Id. at 714.8 Indeed a

majority believed the Attorney General's "discretion includes the

authority to propose a settlement agreement in an action attacking

the constitutionality of a reapportionment statute." Id. at 722

(Hecht, J.) (emphasis supplied).

In approving of the Attorney General's conduct, however, the

plurality noted that he acted "on behalf of the state

defendants[,]" giving him the authority "for his clients and even

on his own, to suggest possible remedies . . . [and] to negotiate

a settlement." Id. (Hecht, J.) (emphasis added). "To hold that he

8

Justice Gonzalez joined section II.A. of the plurality

opinion regarding the entry of redistricting relief.

14

did not would be to give him less authority than any party or any

other attorney participating in the case." Id. (emphasis added).

The Attorney General acts as counsel for state officials who are

his clients.

Terrazas recognizes that the Attorney General represents

officials. It does not follow that by doing so, the Attorney

General steps into their shoes and assumes the policymaking roles

of those officials, against whom specific relief is sought. We

need not and do not decide the authority of the Attorney General

when an official is named in his official capacity only to join the

State. Plaintiff sought specific relief against the Judicial

Districts Board chaired by defendant Chief Justice Phillips. The

petitioners who objected to the settlement in Terrazas were not

even parties to the suit. The Attorney General's power to settle

for his clients is certainly no less than that of other lawyers,

but Terrazas does not say that it is any greater. No lawyer may

forge a settlement agreement over the express objection of his

client. Here, to the extent that Morales represents the Chief

Justice in the Justice's defense of his constitutionally assigned

task, he may not ignore him. As Justice Wallace put it for the

Texas Supreme Court in Public Utility Commission of Texas v. Cofer,

754 S.W.2d 121, 125 (Tex. 1988):

We emphasize that when a statute confers a right upon the

attorney general to represent an agency, it imposes a

corollary duty, and the agency has every right to expect

the same diligent and faithful representation as any

other "client."

15

See also Hill v. Lower Colo. River Auth., 568 S.W.2d 473, 478 (Tex.

Civ. App.--Austin 1978, writ ref'd n.r.e.) (rejecting an attempt by

the attorney general to sue the Texas Water Rights Commission "in

an effort to substitute his views for that of a lawfully

constituted State administrative agency"); Charles Scribner's Sons

v. Marrs, 262 S.W. 722, 729 (Tex. 1924) (although attorney general

had authority to represent the State Superintendent of Education,

he did not have authority "to elect for the state to accept or

reject a contract for text-books that is voidable," a decision for

the Board of Education).

The Texas legislature has also recognized that the Attorney

General represents the State but does not make its policies. "An

admission, agreement, or waiver made by the attorney general in an

action or suit to which the state is a party does not prejudice the

rights of the state." Tex. Gov't Code Ann. § 402.004 (Vernon

1988); see also State v. Reagan County Purchasing Co., 186 S.W.2d

128, 135 (Tex. Civ. App.--El Paso 1944, writ ref'd w.o.m.) ("acts

beyond the scope of [Attorney General's] delegated power are not

binding on the State"). If the Texas Attorney General could make

policy for the State, this provision would be superfluous, for he

could never violate it. He would in effect be the State. When

faced with this statute before, we appropriately noted that "Texas

has been at particular pains to attempt to circumscribe the power

16

of the attorney general to make admissions on its behalf." United

States v. Texas, 680 F.2d 356, 368 n.17 (5th Cir. 1982).9

9

Because the office of Attorney General is rooted in the

common law, many states, including Texas, refer to their Attorney

General's common law powers. E.g. Martinez v. State, 753 S.W.2d

165, 179 (Tex. App.--Beaumont 1988, writ ref'd). Thus, there is

some value to looking at how other states have dealt with the

issue we face today. In Tice v. Department of Transportation,

312 S.E.2d 241, 246 (N.C. Ct. App. 1984), the North Carolina

court held "that the Attorney General . . . is bound by the

traditional rule governing the attorney-client relationship, and

cannot enter a consent judgment without the consent of the entity

represented." In Georgia, the Attorney General may not "bind his

client by settlement for less than the full sum claimed, unless

express authority be given by the client." State v. Southwestern

R.R., 66 Ga. 403, 407 (1881). The North Dakota Attorney

General's power to represent state departments and officers

does not mean that the attorney general, standing in the

position of an attorney to a client, who happens to be an

officer of the government, steps into the shoes of such

client in wholly directing the defense and the legal steps

to be taken in opposition or contrary to the wishes and

demands of his client or the officer or department

concerned.

State ex rel. Amerland v. Hagan, 175 N.W. 372, 374 (N.D. 1919),

overruled on other grounds, Benson v. North Dakota Workmen's

Compensation Bureau, 283 N.W.2d 96 (N.D. 1979). According to the

Mississippi Supreme Court,

The unique position of the Attorney General requires

that when his views differ from or he finds himself at odds

with an agency, then he must allow the assigned counsel or a

specially appointed counsel to represent the agency

unfettered and uninfluenced by the Attorney General's

personal opinion.

State ex rel. Allain v. Mississippi Public Serv. Comm'n, 418 So.

2d 779, 784 (Miss. 1982); see also Frazier v. State by and

through Pittman, 504 So. 2d 675, 691 (Miss. 1987) (where attorney

general refuses to represent state agency, agency is entitled to

its own lawyer and court may retain jurisdiction and entertain

the suit). Arizona does not permit its Attorney General to

appeal a decision against the wishes of the state agency he

represents. Santa Rita Mining Co. v. Department of Property

Valuation, 530 P.2d 360 (Ariz. 1975). Finally, the authority of

the Attorney General of Illinois does not permit him to waive the

rights of his client. Cook County v. Patka, 405 N.E.2d 1376,

17

Stated another way, the Attorney General's right to represent

state officials or state agencies cannot be gainsaid, see Hill v.

Texas Water Quality Bd., 568 S.W.2d 738, 741 (Tex. Civ. App.--

Austin 1978, writ ref'd n.r.e.); Morris v. Smiley, 378 S.W.2d 149,

152 (Tex. Civ. App.--Austin 1964, writ ref'd n.r.e.), but he must

in fact represent them. He cannot ignore his clients and bind the

State against their wishes.10 This is not to say that the Chief

Justice is the sole arbiter. Both he and the Attorney General are

named parties to this suit, and each has the right to be heard in

this case. The Attorney General's authority does not allow him to

"close either the mouth of [Phillips] or the ears of the courts,

when there are complaints that the Attorney General or his

assistants are not in fact fulfilling their duty." Cofer, 754

S.W.2d at 125.

B. Other Motions

We deny the Attorney General's motion to disqualify Phillips'

counsel. We also deny plaintiffs' attempt to nonsuit the Texas

Judicial Districts Board, including its chair, Chief Justice

Phillips. The motion was filed immediately after oral arguments

before the en banc court on May 24, 1993. Rule 41(a) governs

1380 (Ill. App. 1980).

10

Professor Fiss has recognized the problem raised by

Attorney General Morales' actions in this case. "We are left to

wonder, for example, whether the attorney general should be able

to bind all state officials, some of whom are elected and thus

have an independent mandate from the people, or even whether the

incumbent attorney general should be able to bind his

successors." Owen M. Fiss, Against Settlement, 93 Yale L.J.

1073, 1079 (1984).

18

voluntary dismissals and provides that a plaintiff may dismiss an

action without order of the court in two circumstances. The

plaintiff must either file the notice of dismissal before the

adverse party serves its answer or summary judgment motion,

whichever occurs first, or file a stipulation of dismissal signed

by all parties who have appeared in the case. Fed.R.Civ.P.

41(a)(1). The notice of nonsuit comes almost five years after the

defendants have answered, and none of the defendant-aligned parties

has signed the motion. Plaintiffs have no unilateral right to

dismiss the Chief Justice and Judicial Districts Board. We will

not permit plaintiffs to seek injunctive relief against the office

held by Chief Justice Phillips for almost five years and then

dismiss him when he declines to settle. See Davis v. Huskipower

Outdoor Equipment Corp., 936 F.2d 193, 199 (5th Cir. 1991)

(affirming refusal to dismiss defendant more than a year after the

case was removed to federal court); Radiant Technology Corp. v.

Electrovert USA Corp., 122 F.R.D. 201 (N.D. Tex. 1988) (motion to

voluntarily dismiss under Rule 41 should be denied when plaintiff

seeks to circumvent an expected adverse result).

We deny the motion of the district judges as Defendant-

Intervenors to realign General Morales with plaintiffs. Morales'

efforts to settle the case do not require this measure. He is

entitled to take a position in settlement negotiations that is

different from his trial posture. However, if the Attorney General

changes his views on the merits of the case, realigning him with

the plaintiffs may be appropriate. Cf. Delchamps, Inc. v. Alabama

19

State Milk Control Bd., 324 F. Supp. 117, 118 (M.D. Ala. 1971)

(allowing Alabama Attorney General, who like the Texas Attorney

General took an oath to defend both state and federal law, to

realign himself with plaintiffs to challenge the federal

constitutionality of a state law). We also deny Judge Wood's

motion to disqualify General Morales as counsel for the State.

While we have rejected his claimed power to bind against their will

state officials he is charged to represent, he is nonetheless their

counsel.

C. The Intervenors

The Attorney General may represent state officials in their

official capacities, but there is no contention that General

Morales represents Judges Wood and Entz.11 They have intervened in

their personal capacities and have elected to obtain their own

counsel.12 As we earlier observed, the proposed consent decree

11

After trial, certain Bexar County district judges also

sought to intervene as defendants, and we have before us an

appeal from the denial of their motion. A motion to intervene

under Rule 24 must be timely. Fed.R.Civ.P. 24(a), (b); Jones v.

Caddo Parish School Bd., 735 F.2d 923, 926 (5th Cir. 1984) (en

banc). Although the district court did not expressly state that

their motion was untimely, it was well within the district

court's discretion to deny the motion on this ground.

12

Because we find that the judges' standing in their

individual capacities survives the settlement agreement, we are

not required to address the ability of Texas district court

judges to represent themselves in their official capacities. It

appears, however, that Texas law permits them to do so. Tex.

Gov't Code § 74.141, titled Defense of Judges provides:

The attorney general shall defend a state district judge, a

presiding judge of an administrative region, or an active,

retired, or former judge assigned under this chapter in any

action or suit in any court in which the judge is a

defendant because of his office as judge if the judge

20

would allow Judge Wood and Judge Entz to continue to run county-

wide. General Morales urges that they therefore lack standing to

either prosecute the suit or object to the proposed decree.

To this point, the standing of the intervening parties has not

been questioned. To the contrary, the intervenors played an

important role at trial and have since taken the lead. After the

federal district judge's ruling in favor of plaintiffs, the notice

of appeal was first filed by Judges Wood and Entz, not by the

Attorney General. Only the district judge's adherence to

nonpartisan elections prodded the Attorney General to appeal. The

Houston Lawyers' Association intervened by the same order as the

intervening judges and carried the appeal from our first en banc

decision to the United States Supreme Court.13 Even now, no one

questions the earlier uncontested standing of the intervenors; nor

could they. Wood and Entz intervened in part to protect their

tenure as elected judges. The district court found that they were

illegally elected.

Of course, these intervenors must satisfy Article III to

appeal on their own. Diamond v. Charles, 476 U.S. 54, 68 (1986);

Didrickson v. United States Department of the Interior, 982 F.2d

requests the attorney general's assistance in the defense of

the suit.

(emphasis added).

13

"Since an intervenor is bound by future orders, it may

appeal from an appealable order unless the intervention has been

specifically limited to forbid it." Matter of First Colonial

Corp., 544 F.2d 1291, 1298 (5th Cir. 1977). There is obviously

no such limitation on the intervenors' right to appeal in this

case.

21

1332, 1337-39 (9th Cir. 1992); United States v. Western Elec. Co.,

900 F.2d 283 (D.C. Cir. 1990). A case or controversy between the

State and plaintiffs remains. The parties have a right to a

determination of that appeal, unless they consent to a remand. See

Wheeler v. American Home Products Corp., 582 F.2d 891, 896 (5th

Cir. 1977) ("once intervention has been allowed, the original

parties may not stipulate away the rights of the intervenor"); see

also Sheffield v. Itawamba County Bd. of Supervisors, 439 F.2d 35,

36 (5th Cir. 1971) ("having instituted a public lawsuit to secure

rectification for a constitutional wrong of wide dimension,

[plaintiffs] cannot privately determine its destiny"). Put another

way, the proposed settlement does not deprive this court of its

jurisdiction to hear the appeal independently perfected by Judges

Wood and Entz, an appeal from a decision that declared their

elections illegal.

Even assuming the proposed settlement foreclosed the

intervening judges' standing to protect their tenure, Wood and Entz

would still have a sufficient stake in the litigation to satisfy

the Constitution. In an earlier opinion in this case we said

[a]sserting interests both as a Texas voter and as a

sitting Texas district judge, Judge Sharolyn Wood moved

to intervene on the side of the defendant--the state.

The court allowed her to intervene in her personal

capacity, permitting Dallas County District Judge Harold

Entz to do so as well.

League of United Latin American Citizens v. Clements, 923 F.2d 365,

367 (5th Cir. 1991)(emphasis added). In the district court, Judge

Entz moved to intervene as a defendant to defend on his interests

as a judge, a lawyer, and a registered voter in and citizen of

22

Dallas County. The court's order granting intervention in his

individual capacity encompasses all of these interests.

Thus, the proponents of remand view the judges' intervention

too narrowly, for Wood and Entz also have standing as voters. The

settlement agreement would deprive voters of the right to vote for

all judges with general jurisdiction over their county. The

Eleventh Circuit recently confronted a similar situation. Meek v.

Metropolitan Dade County, 985 F.2d 1471 (11th Cir. 1993), was a

voting rights challenge to the at-large election of county

commissioners in Dade County, Florida. As here, individual voters

challenged a liability finding that elected officials would not

contest on appeal. Swann and Sampson were Dade County residents

and voters. The district court denied them leave to intervene

before trial. In a second request for leave to intervene, Swann

and Sampson sought to preserve their right to appeal in the event

of an adverse judgment and a decision by defendants not to appeal.

The court found the at-large system illegal and, as feared, the

County Commission decided not to appeal. When the district court

denied their third motion to intervene, Swann and Sampson appealed.

Our sister court held that the district court abused its

discretion in denying the intervention and affirmed the district

court on the merits. The court held that the voters had standing,

a sufficient interest both to intervene and carry the appeal when

the state agency declined to do so. In its view, if the court were

to deny standing to these voters, it "would be forced to conclude

that most of the plaintiffs also lack standing, a conclusion

23

foreclosed by the many cases in which individual voters have been

permitted to challenge election practices." Id. at 1480 (citing

Whitcomb v. Chavis, 403 U.S. 124 (1971); Baker v. Carr, 369 U.S.

186 (1962)). We agree that the standing of voters in a voting

rights case cannot be gainsaid. See also O'Hair v. White, 675 F.2d

680, 688-90 (5th Cir. 1982) (en banc); Henderson v. Fort Worth

Independent School Dist., 526 F.2d 286, 288-90 (5th Cir. 1976).14

D. Consent Decrees

Even if all of the litigants were in accord, it does not

follow that the federal court must do their bidding. The proposal

is not to dismiss the lawsuit, but to employ the injunctive power

of the federal court to achieve a result that the Attorney General

and plaintiffs were not able to achieve through the political

process. The entry of a consent decree is more than a matter of

agreement among litigants. It is a "judicial act." United States

v. Swift & Co., 286 U.S. 106, 115 (1932). "[W]hen [the court] has

rendered a consent judgment it has made an adjudication." Kaspar

Wire Works, Inc. v. Leco Eng'g & Machine, Inc., 575 F.2d 530, 538-

39 (5th Cir. 1978) (quoting 1B James W. Moore et al., Moore's

Federal Practice ¶ 0.409[5]). Courts must exercise equitable

discretion before accepting litigants' invitation to perform the

judicial act.

14

Our conclusion that Defendant-Intervenors continue to have

standing in their individual capacities to defend the current

method of electing trial judges makes it unnecessary for us to

consider their motion to modify their intervention to enable them

to do so.

24

A consent decree must arise from the pleaded case and further

the objectives of the law upon which the complaint is based. See

Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478

U.S. 501, 525, 106 S. Ct. 3063, 3077 (1986). When presented with

a proposed judgment, the court "must not merely sign on the line

provided by the parties." United States v. City of Miami, 664 F.2d

435, 440 (5th Cir. 1981) (en banc) (Rubin, J.).

Because the consent decree does not merely validate a

compromise but, by virtue of its injunctive provisions,

reaches into the future and has continuing effect, its

terms require more careful scrutiny. Even when it

affects only the parties, the court should, therefore,

examine it carefully to ascertain not only that it is a

fair settlement but also that it does not put the court's

sanction on and power behind a decree that violates

Constitution, statute, or jurisprudence. . . . If the

decree also affects third parties, the court must be

satisfied that the effect on them is neither unreasonable

nor proscribed.

Id. at 441 (Rubin, J.) (emphasis added); see also Overton v. City

of Austin, 748 F.2d 941, 952-53 (5th Cir. 1984); Williams v. City

of New Orleans, 729 F.2d 1554, 1559 (5th Cir. 1984) (en banc)

(Williams, J.).

The emphasized passage makes a critical point. A proposed

consent decree is generally--as here--a request for the court to

exercise its equitable powers. It involves the court's sanction

and power and is not a tool bending without question to the

litigants' will. As Justice Harlan wrote, "parties cannot, by

giving each other consideration, purchase from a court of equity a

25

continuing injunction." System Federation No. 91, Ry. Employees'

Dep't, AFL-CIO v. Wright, 364 U.S. 642, 651 (1961).15

We have recognized that when fewer than all litigants forge a

consent decree, issues affecting other parties remain to be

adjudicated. City of Miami, 664 F.2d at 440 (Rubin, J.). As

eleven judges recognized in the same case, our preferences for

settlement and accord are insufficient to justify the imposition of

a decree that infringes upon the rights of third parties. See id.

at 451 (Gee, J., concurring and dissenting). A consent decree

"cannot dispose of the valid claims of nonconsenting intervenors;

if properly raised, these claims remain and may be litigated by the

intervenor." Local 93, 478 U.S. at 529, 106 S. Ct. at 3079.

Courts must be especially cautious when parties seek to

achieve by consent decree what they cannot achieve by their own

authority. Consent is not enough when litigants seek to grant

themselves powers they do not hold outside of court. People Who

Care v. Rockford Bd. of Educ., 961 F.2d 1335, 1337 (7th Cir. 1992).

For example, a local government may not use a consent decree to

avoid a state law requiring a referendum before the issuance of

construction bonds. Dunn v. Carey, 808 F.2d 555, 560 (7th Cir.

1986).

We expressed our concern regarding the risks attending consent

decrees in Overton v. City of Austin, 748 F.2d 941 (5th Cir. 1984).

In that case, plaintiffs and the city attorney, acting for the city

15

In the same passage, Wright reminds us that "authority to

adopt a consent decree comes only from the statute which the

decree is intended to enforce." 364 U.S. at 651.

26

council, proposed a decree substituting single-member council

districts for the at-large council established by the city charter.

A dissenting council member maintained that the council lacked the

authority to change the existing scheme without a city-wide

referendum. Id. at 947 n.5. In the district court, several black

voters sought to intervene as defendants on the ground that

subdistricting would curtail their voting power. Id. at 944. The

plaintiffs petitioned for a writ of mandamus to compel the district

court to implement the proposed decree without further

consideration. We refused to issue the writ. In doing so, Overton

recognized the danger of manipulation faced by federal courts. We

may be asked to effectuate substantive results that government

officials are not empowered to bring about themselves. Id. at 956.

The risk can be realized in many ways, but is palpable where

sharply divided state officials would draw the federal courts into

a partisan political battle.

Our job is to decide a case or controversy. The parties'

high-strung rhetoric does not fully obscure the reality that a live

controversy yet exists. By declining to remand this case, we do

not slow one whit any march for change in Texas. Its elected

leaders are always free to pursue whatever scheme they think best,

through the normal political process. Texas links the jurisdiction

and electoral bases of its district judges and the still-contested

question for this court is its legality.

The procedural posture of this case when the request to remand

to the district court was heard is important. The issues in this

27

case were well known to the entire court. The case had been fully

tried and its appeal had twice been before a panel of this court

and was before the en banc court a second time. The issues had

been fully aired in the panel majority and dissenting opinion when

this court vacated the panel opinion. In sum, we are asked to

remand to the district court to consider entry of a "consent"

decree and to decide whether it would "put the court's sanction on

and power behind a decree that violates Constitution, statute, or

jurisprudence." City of Miami, 664 F.2d at 441 (Rubin, J.). More

precisely put, any federal decree must be a tailored remedial

response to illegality. Cf. Shaw v. Reno, 113 S.Ct. 2816 (1993).

We are asked to remand for this determination although we are not

persuaded that there is any illegality.

It is not a matter of our withholding announcement of our

decision. We could not, in any event, remand without correcting

the district court's misapprehensions of law, found even by our

dissenting colleagues. Significant legal errors infected the trial

court's earlier judgment, including its refusal to consider the

effect of partisan voting, its finding of liability in Travis

County now undefended, its selective aggregation of language and

ethnic minorities, its refusal to accord weight to the State's

linkage interest in the totality of the circumstances, and finally,

its heavy reliance upon historical societal discrimination without

bringing this history home to this case. We cannot escape this

error-correcting task--and when it is done, there is no case. The

amicus United States agrees with our conclusion that, once the

28

proper legal standards are determined, the record presents no

factual issue that needs revisiting. It follows that the proposed

consent decree cannot respond to sufficiently identified

illegality--because the record demonstrates that there is none.

E. Chisom v. Edwards

Finally, the parties urging remand point to Chisom v. Edwards,

970 F.2d 1408 (5th Cir. 1992), where we remanded a voting rights

case for the district court to enter a consent decree. That case

challenged the method of electing Louisiana's Supreme Court

Justices. Chisom v. Roemer, 111 S. Ct. 2354, 2358 (1991). Our

remand in Chisom, however, resulted from different circumstances.

First, all parties joined the motion to remand, as we were

careful to point out in our order:

The Joint Motion to Remand to Effectuate Settlement filed

by all parties is hereby granted; and this case is

remanded to the United States District Court for the

Eastern District of Louisiana for the limited purpose of

effectuating a settlement. Jurisdiction of the appeals

is hereby retained. Upon notification that a consent

judgment has been entered by the district court, the

appeals will be dismissed. We express no opinion, of

course, on the settlement or judgment.

Chisom, 970 F.2d at 1409 (emphasis added). As we have discussed,

the same is not true here.16

16

For the same reason, Supreme Court authority does not

require a remand. In Turnock v. Ragsdale, 493 U.S. 987 (1989),

the Court granted the parties' joint motion to defer further

proceedings for the parties to submit a proposed consent decree

to the district court. Unlike the case before us, the joint

motion in Turnock was a true joint motion; there were no

objections. See Ragsdale v. Turnock, 941 F.2d 501, 503 (7th Cir.

1991) (recounting procedural history). In spite of its label,

the Attorney General's motion is far from being a joint motion.

29

Second, the parties in Chisom came to this court asking for

remand carrying a duly enacted state law with them. They did not

seek to invoke the preemptive force of the federal law. The decree

in Chisom was agreed to by all parties and adopted into law by the

state legislature. The consent decree did not set aside any state

laws--and not by accident. It was carefully crafted to that end.

In Louisiana, the legislature can create more supreme court

districts with a two-thirds vote from both houses. La. Const. Art

5, § 4.17 Article 5, § 3 of the Louisiana Constitution fixes the

number of supreme court justices at seven and establishes that each

shall serve a ten-year term.18 Because the state wished to create

the Orleans district without upsetting the terms of the sitting

justices, Louisiana had to temporarily expand the supreme court to

eight members.19

17

Art. 5, § 4 provides:

The state shall be divided into at least six supreme court

districts, and at least one judge shall be elected from

each. The districts and the number of judges assigned to

each on the effective date of this constitution are

retained, subject to change by law enacted by two-thirds of

the elected members of each house of the legislature.

18

Art. 5, § 3 provides:

The supreme court shall be composed of a chief justice and

six associate justices, four of whom must concur to render

judgment. The term of a supreme court judge shall be ten

years.

19

Louisiana's first effort to create an eighth position, and

thereby resolve the Chisom litigation, came in 1989 in the form

of a proposed constitutional amendment. However, the voters

rejected the proposal. See La. Const. Art. 5, §§ 4, 35,

Historical Notes.

30

While § 3 limits the size of the supreme court to seven

justices, Art. 5, § 5(A) permits the Louisiana Supreme Court to

"assign a sitting or retired judge to any court." La. Const. Art.

5, § 5(A). The legislature therefore created an additional place

for a judge on the Court of Appeal for the Fourth Circuit, who,

upon election, would be assigned to the supreme court to serve, in

reality, as the eighth justice. See La. Rev. Stat. Ann. § 13:312.4

(West Supp. 1993). This temporary judgeship was to expire with a

vacancy on the supreme court from the first district. The vacancy

would be filled by an election in the newly created seventh

district comprised of Orleans Parish. La. Rev. Stat. Ann.

§ 13:101.1 (West Supp. 1993). Both of these provisions were

contained in Act 512 which, after receiving the required two-thirds

vote in both houses of the legislature, became law on June 22,

1992. Official Journal of the Proceedings of the Senate of the

State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official

Journal of the Proceedings of the House of the State of Louisiana,

18th Reg. Sess. at 31 (June 16, 1992). The Louisiana Legislature

provided that Act 512 would not go into effect unless the federal

court entered a consent decree in Chisom. La. Rev. Stat. Ann.

§ 13:101.l (West Supp. 1993).

The Texas Legislature refused to take positive action, and the

settlement agreement attempts to avoid constitutional requirements.

The Texas Constitution requires that judges be elected from

districts no smaller than a county, absent a majority vote by the

31

citizens of that county. Tex. Const. Art. 5, §§ 7, 7a(i).20 The

settlement agreement is not contingent on approval by the voters of

each county. The legislature has not proposed a constitutional

amendment. It has made no laws.

F. Federalism

Then we have all sides claiming the high ground of federalism.

Some of the assertions are creative. The suggestion that state

political groups, unable to muster sufficient political force to

change the system, can by "agreement" enlist the preemptive power

of the federal court to achieve the same end stands federalism on

its head. Of course, we defer to legislative will and state

decision. Here, the "decision" to which we are asked to defer is

a decision by a political faction that the federal court should

order the state to change its system. We do not share this curious

view of federalism.

20

Art. 5, § 7 provides:

The state shall be divided into judicial districts,

with each district having one or more judges as may be

provided by law or by this Constitution. . . .

Art. 5, § 7a(i) provides:

The legislature, the Judicial Districts Board, or the

Legislative Redistricting Board may not redistrict the

judicial districts to provide for any judicial district

smaller in size than an entire county except as provided by

this section. Judicial districts smaller in size than the

entire county may be created subsequent to a general

election where a majority of the persons voting on the

proposition adopt the proposition "to allow the division of

County into judicial districts composed of parts of

County." No redistricting plan may be proposed or

adopted by the legislature, the Judicial Districts board, or

the Legislative Redistricting Board in anticipation of a

future action by the voters of any county.

32

III. Racial Bloc Voting

As amended, § 2 of the Voting Rights Act prohibits states from

imposing or applying any "standard, practice, or procedure . . .

which results in a denial or abridgement of the right of any

citizen of the United States to vote on account of race or color."

A minority group may establish a violation of this provision by

proving "that its members have less opportunity than other members

of the electorate to participate in the political process and to

elect representatives of their choice."21 Congress intended "to

make clear that proof of discriminatory intent is not required to

establish a violation of Section 2" by "restor[ing] the legal

21

Section 2 reads in full:

(a) No voting qualification or prerequisite to voting or

standard, practice, or procedure shall be imposed or applied

by any State or political subdivision in a manner which

results in a denial or abridgement of the right of any

citizen of the United States to vote on account of race or

color, or in contravention of the guarantees set forth in

section 4(f)(2), as provided in subsection (b) of this

section.

(b) A violation of subsection (a) is established if, based

on the totality of the circumstances, it is shown that the

political processes leading to nomination or election in the

State or political subdivision are not equally open to

participation by members of a class of citizens protected by

subsection (a) of this section in that its members have less

opportunity than other members of the electorate to

participate in the political process and to elect

representatives of their choice. The extent to which

members of a protected class have been elected to office in

the State or political subdivision is one circumstance which

may be considered: Provided, That nothing in this section

establishes a right to have members of a protected class

elected in numbers equal to their proportion in the

population.

42 U.S.C. § 1973.

33

standards" which prevailed in constitutional voting discrimination

cases prior to Mobile v. Bolden, 446 U.S. 55 (1980). S. Rep. 417

at 2, reprinted in 1982 U.S. Code Cong. & Admin. News at 206.

Specifically, the 1982 amendments "codify" the "results test"

articulated in White v. Regester, 412 U.S. 755 (1973). Id.

Section 2 claims brought against multimember schemes are

governed by the framework established in Thornburg v. Gingles, 478

U.S. 30 (1986). Under Gingles, plaintiffs challenging an at-large

system on behalf of a protected class of citizens must demonstrate

that (1) the group is sufficiently large and geographically compact

to constitute a majority in a single-member district; (2) it is

politically cohesive; and (3) the white majority votes sufficiently

as a bloc to enable it usually to defeat the minority's preferred

candidate. Growe v. Emison, 113 S.Ct. 1075, 1084 (1993); Gingles,

478 U.S. at 50-51. Satisfaction of these three "preconditions,"

Voinovich v. Quilter, 113 S.Ct. 1149, 1157 (1993), is necessary,

Gingles, 478 U.S. at 50, but not sufficient to establish liability

under § 2. Chisom v. Roemer, 111 S.Ct. 2354, 2365 (1991); Citizens

for Better Gov't v. City of Westwego, 946 F.2d 1109, 1116 (5th Cir.

1991) (Westwego III). Plaintiffs must also show that, under the

"totality of circumstances," they do not possess the same

opportunities to participate in the political process and elect

representatives of their choice enjoyed by other voters. Courts

34

are guided in this second inquiry by the so-called Zimmer factors

listed in the Senate Report.22

22

The Senate Report indicates that "[t]ypical factors

include":

1. the extent of any history of official discrimination

in the state or political subdivision that touched the

right of the members of the minority group to register,

to vote, or otherwise to participate in the democratic

process;

2. the extent to which voting in the elections of the state

or political subdivision is racially polarized;

3. the extent to which the state or political subdivision

has used unusually large election districts, majority vote

requirements, anti-single shot provisions, or other voting

practices or procedures that may enhance the opportunity for

discrimination against the minority group;

4. if there is a candidate slating process, whether the

members of the minority group have been denied access to

that process;

5. the extent to which members of the minority group in the

state or political subdivision bear the effects of

discrimination in such areas as education, employment and

health, which hinder their ability to participate

effectively in the political process;

6. whether political campaigns have been characterized by

overt or subtle racial appeals;

7. the extent to which members of the minority group have

been elected to public office in the jurisdiction.

Additional factors that in some cases have had probative value as

part of plaintiffs' evidence to establish a violation are:

whether there is a significant lack of responsiveness

on the part of elected officials to the particularized

needs of the members of the minority group.

whether the policy underlying the state or political

subdivision's use of such voting qualification,

prerequisite to voting, or standard, practice or

procedure is tenuous.

35

A central issue here, one that divided the panel and one over

which the parties vigorously disagree, concerns Gingles' white bloc

voting inquiry and the closely related Zimmer factor directing

courts to examine "the extent to which voting . . . is racially

polarized." S. Rep. 417 at 29, reprinted in 1982 U.S. Code Cong.

& Admin. News at 206. As the Court in Gingles held, the question

here is not whether white residents tend to vote as a bloc, but

whether such bloc voting is "legally significant." Gingles, 478

U.S. at 55; Salas v. Southwest Texas Jr. College Dist., 964 F.2d

1542, 1553 (5th Cir. 1992). In finding a violation of § 2 in each

of the nine challenged counties, the district court held that

plaintiffs need only demonstrate that whites and blacks generally

support different candidates to establish legally significant white

bloc voting. Because "it is the difference between choices made by

blacks and whites alone . . . that is the central inquiry of § 2,"

the court excluded evidence tending to prove that these divergent

voting patterns were attributable to factors other than race as

"irrelevant" and "legally [in]competent."

On appeal, defendants contend that the district court erred in

refusing to consider the nonracial causes of voting preferences

they offered at trial. Unless the tendency among minorities and

whites to support different candidates, and the accompanying losses

S. Rep. 417 at 28-29, reprinted in 1982 U.S. Code Cong. & Admin.

News at 206-07. These factors are derived from our decision in

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff'd sub nom

East Carroll Parish School Board v. Marshall, 424 U.S. 636

(1976), as well as White. See S. Rep. 417 at 28 n.113, reprinted

in 1982 U.S. Code Cong. & Admin. News at 206 n.113.

36

by minority groups at the polls, are somehow tied to race,

defendants argue, plaintiffs' attempt to establish legally

significant white bloc voting, and thus their vote dilution claim

under § 2, must fail. When the record indisputably proves that

partisan affiliation, not race, best explains the divergent voting

patterns among minority and white citizens in the contested

counties, defendants conclude, the district court's judgment must

be reversed.

We agree. The scope of the Voting Rights Act is indeed quite

broad, but its rigorous protections, as the text of § 2 suggests,

extend only to defeats experienced by voters "on account of race or

color." Without an inquiry into the circumstances underlying

unfavorable election returns, courts lack the tools to discern

results that are in any sense "discriminatory," and any distinction

between deprivation and mere losses at the polls becomes untenable.

In holding that the failure of minority-preferred candidates to

receive support from a majority of whites on a regular basis,

without more, sufficed to prove legally significant racial bloc

voting, the district court loosed § 2 from its racial tether and

fused illegal vote dilution and political defeat. In so doing, the

district court ignored controlling authorities: Whitcomb v.

Chavis, 403 U.S. 124 (1971), which established a clean divide

between actionable vote dilution and "political defeat at the

polls"; the 1982 amendments, enacted to restore a remedy in cases

"where a combination of public activity and private discrimination

have joined to make it virtually impossible for minorities to play

37

a meaningful role in the electoral process," Hearings on the Voting

Rights Act Before the Subcomm. on the Constitution of the Senate

Comm. of the Judiciary, 97th Cong., 2d Sess. 1367-68 (statement of

Prof. Drew Days) (emphasis added); and Thornburg v. Gingles, 478

U.S. 30 (1986), where a majority of the Justices rejected the very

test employed by the district court as a standard crafted to shield

political minorities from the vicissitudes of "interest-group

politics rather than a rule hedging against racial discrimination."

Id. at 83 (White, J., concurring); id. at 101 (O'Connor, J., joined

by Burger, C.J., Powell and Rehnquist, JJ., concurring). We must

correct these errors.

A. Whitcomb v. Chavis and White v. Regester

The Senate Report indicates that the 1982 amendments to § 2

were intended to "codify" the results test as employed in White and

Whitcomb. See S. Rep. 417 at 2, 20-23, 32-33, reprinted in 1982

U.S. Code Cong. & Admin. News at 197-201, 210-11; Gingles, 478 U.S.

at 97 (O'Connor, J., concurring) ("In enacting § 2, Congress

codified the 'results' test this Court had employed, as an

interpretation of the Fourteenth Amendment, in White and

Whitcomb"); Jones v. City of Lubbock, 727 F.2d 364, 379 (5th Cir.

1984) (the amended § 2 "codifies pre-Bolden voting dilution law").

Consequently, "it is to Whitcomb and White that we should look in

the first instance in determining how great an impairment of

minority voting strength is required to establish vote dilution in

violation of § 2." Gingles, 478 U.S. at 97 (O'Connor, J.,

concurring).

38

In Whitcomb, black citizens residing in one part of Marion

County, referred to as the "ghetto" by the Court, claimed that the

county's at-large method of electing members to the state

legislature unconstitutionally diluted their votes. The "[s]trong

differences" between "ghetto" residents and adjacent communities

"in terms of housing conditions, income and educational levels,

rates of unemployment, juvenile crime, and welfare assistance," 403

U.S. at 132,23 correlated closely with voting patterns in the

county. "Ghetto" residents "voted heavily Democratic," but since

the county's more affluent white majority consistently voted

Republican, black-preferred candidates were defeated in four of the

five elections between 1960 and 1968. Id. at 150. The Whitcomb

Court recognized that the at-large electoral scheme caused the

"voting power of ghetto residents [to be] 'cancelled out,'" id. at

153, but held that this result by itself did not provide grounds

for relief. Noting that blacks enjoyed full access to the

political process,24 the Court reasoned that "had the Democrats won

23

See also Chavis v. Whitcomb, 305 F. Supp. 1364, 1376-81

(S.D. Ind. 1969).

24

The Court stated:

We have discovered nothing in the record or in the

court's findings indicating that poor Negroes were not

allowed to register or vote, to choose the political

party they desired to support, to participate in its

affairs or to be equally represented on those occasions

when legislative candidates were chosen. Nor did the

evidence purport to show or the court find that

inhabitants of the ghetto were regularly excluded from

the slates of both major parties, thus denying them the

chance of occupying legislative seats.

Id. at 149-50.

39

all of the elections or even most of them, the ghetto would have no

justifiable complaints about representation." Id. at 152. For

this reason, the Court concluded that the "failure of the ghetto to

have legislative seats in proportion to its population emerges more

as a function of losing elections than of built-in bias against

poor Negroes." Id. at 153.

The Whitcomb Court was reluctant to view the plaintiffs'

claims of vote dilution as anything more than "a euphemism for

political defeat at the polls," id., for, absent evidence of a lack

of access to the political system, there was no principle by which

the Court could distinguish the "ghetto's" claims and those of

other unsuccessful political groups:

[A]re poor Negroes of the ghetto any more under-

represented than poor ghetto whites who also voted

Democratic and lost, or any more discriminated against

than other interest groups or voters in Marion County

with allegiance to the Democratic Party, or, conversely,

any less represented than Republican areas or voters in

years of Republican defeat? We think not. The mere fact

that one interest group or another concerned with the

outcome of Marion County elections has found itself

outvoted and without legislative seats of its own

provides no basis for invoking constitutional remedies

where, as here, there is no indication that this segment

of the population is being denied access to the political

system.

Id. at 154-55. To grant relief to black residents in this case,

the Court held, "would make it difficult to reject claims of

Democrats, Republicans, or members of any political organization in

Marion County who live in what would be safe districts in a single-

member district system but who in one year or another, or year

after year, are submerged in a multimember district vote." Id. at

156.

40

The Court's assertion that plaintiffs' racial vote dilution

claim was indistinguishable from complaints which might be brought

by any unsuccessful interest group hinged on its determination that

"ghetto" residents did not suffer from a lack of access to the

political process. Despite the presence of vast disparities in

virtually every significant measure of socioeconomic status, the

Court found that black voters stood on the same footing with whites

in vying for representation within Marion County. "Ghetto"

residents had in fact experienced a string of losses at the polls

in recent years, but these defeats were shared equally among all

members of the Democratic Party.

The Court confronted very different circumstances two years

later in White v. Regester, 412 U.S. 755 (1973). The Court

confirmed Whitcomb's rejection of the claim that "every racial or

political group has a constitutional right to be represented in the

state legislature," id. at 769, and reiterated the standard

established in its earlier decision: a minority group must prove

"that its members had less opportunity than did other residents in

the district to participate in the political processes and to elect

legislators of their choice." Id. at 766 (citing Whitcomb, 403

U.S. at 149-50). Unlike the plaintiffs in Whitcomb, however, the

black residents of Dallas County and the Hispanic voters in Bexar

County each established that they had been effectively excluded

from the political processes leading to the nomination and election

of the Texas House of Representatives. 412 U.S. at 766-70.

41

Specifically, black voters in Dallas labored under the yoke of

Texas' long history of official discrimination and were subjected

to several procedural devices which, while not invidious in

themselves, "enhanced the opportunity for racial discrimination."

Id. at 766. "More fundamentally," the Court noted, the Dallas

Committee for Responsible Government, "a white-dominated

organization that is in effective control of Democratic Party

candidate slating," had slated only two black candidates in its

history, who, not coincidentally, constituted the only two blacks

ever to have served in the Dallas County delegation to the Texas

House since Reconstruction. Id. at 766-67. The DCRG failed to

display any "good-faith concern for the political and other needs

and aspirations of the Negro community," and in fact regularly

relied on racial campaign tactics to defeat candidates supported by

black residents. Id. at 767. Consequently, the Court had no

reason to disturb the district court's conclusion "that 'the black

community has been effectively excluded from participation in the

Democratic primary selection process,' and was therefore generally

not permitted to enter into the political process in a reliable and

meaningful manner." Id. (quoting Graves v. Barnes, 343 F. Supp.

704, 726 (W.D. Tex. 1972)).

The Court also upheld a similar finding that Mexican-Americans

likewise had been "'effectively removed from the political

processes of Bexar [County] in violation of all the Whitcomb

standards.'" Id. at 769 (quoting Graves, 343 F. Supp. at 733).

Like black residents of Texas, Mexican-Americans "had long

42

'suffered from, and continue[d] to suffer from, the results and

effects of invidious discrimination and treatment in the field of

education, employment, economics, health, politics and others.'"

Id. at 768 (quoting Graves, 343 F. Supp. at 728)). In addition,

the district court determined that "cultural and language

barrier[s] . . . 'conjoined with the poll tax and the most

restrictive voter registration procedures in the nation have

operated to effectively deny Mexican-Americans access to the

political processes in Texas even longer than the Blacks were

formally denied access by the white primary.'" Id. (quoting

Graves, 343 F. Supp. at 731). The exclusionary effects of past and

present discrimination, the Court found, were palpably reflected in

low voting registration among Mexican-Americans, the election of

only five Bexar County Mexican-Americans to the Texas Legislature

since 1880, and the county delegation's unresponsiveness to the

community's interests. Id. at 768-69. Given that the district

court's findings flowed from "a blend of history and an intensely

local appraisal" of conditions in Bexar County, the Court was "not

inclined to overturn" its conclusion that the multimember district

"invidiously excluded Mexican-Americans from effective

participation in political life." Id. at 769. As we will explain,

this earlier time in Texas history and the elections at issue here

present stark contrasts. The record before us contains no evidence

that past or present discrimination has affected minorities'

political access in any way.

43

The principles announced and applied in Whitcomb and White are

instructive and, we believe, controlling. As Justice White, the

author of these opinions, recently indicated, the central "theme"

of Whitcomb and White is "that it is not mere suffering at the

polls but discrimination in the polity with which the Constitution

is concerned." Shaw v. Reno, 113 S.Ct. 2816, 2835 (1993) (White,

J., dissenting). Beyond the bounds of this litigation, the clarity

with which the Whitcomb Court articulated the principles underlying

the "results" test has largely forestalled confusion or doubt, even

among those whom plaintiffs might be inclined to count as allies.

See, e.g., Jones v. City of Lubbock, 727 F.2d 364, 384 (5th Cir.

1984) ("Even where an at-large system interacts with a racially or

ethnically polarized electorate to the disadvantage of the

minority, the 'result' is not necessarily a denial of political

access . . . . [T]he 'result' in Whitcomb [is] that polarized

voting does not render an at-large system dilutive of minority

voting strength"); Pamela S. Karlan, Undoing the Right Thing:

Single-Member Offices and the Voting Rights Act, 77 Va. L. Rev. 1,

22 n.78 (1991). Justice Marshall, for example, provided a clear

explanation of the Court's holding in his dissent in Mobile v.

Bolden, 446 U.S. 55 (1980):

In Whitcomb v. Chavis, we again repeated and applied the

Fortson [effects] standard, but determined that the Negro

community's lack of success at the polls was the result

of partisan politics, not racial vote dilution. The

Court stressed that both the Democratic and Republican

Parties had nominated Negroes and several had been

elected. Negro candidates lost only when their entire

party slate went down to defeat. In addition, the Court

was impressed that there was no finding that officials

had been unresponsive to Negro concerns.

44

Id. at 109 (Marshall, J., dissenting) (citations omitted).

Justice Marshall's references to the "lack of success at the

polls" as a "result" of "partisan politics, not racial vote

dilution," closely tracks the relevant language in Whitcomb, where

the Court held that the "cancell[ing] out" of the "voting power of

ghetto residents" was more "a function of losing elections" or

"political defeat" than of "built-in bias against poor Negroes."

403 U.S. at 153. Absent evidence that minorities have been

excluded from the political process, a "lack of success at the

polls" is not sufficient to trigger judicial intervention. Courts

must undertake the additional inquiry into the reasons for, or

causes of, these electoral losses in order to determine whether

they were the product of "partisan politics" or "racial vote

dilution," "political defeat" or "built-in bias." It is only upon

concluding that a minority group's failure to prevail at the polls,

that is, their failure to attract the support of white voters, was

the "result" or "function" of "racial vote dilution" or "built-in

bias," that a court may find that minority plaintiffs have suffered

"a denial or abridgement of the right . . . to vote on account of

race or color." In sum, Whitcomb unmistakably prescribes the very

inquiry into the causes underlying the lack of support for

minority-preferred candidates among white voters with which the

district court dispensed.

As Justice Marshall suggested, failures of a minority group to

elect representatives of its choice that are attributable to

"partisan politics" provide no grounds for relief. Section 2 is "a

45

balm for racial minorities, not political ones--even though the two

often coincide." Baird v. Consolidated City of Indianapolis, 976

F.2d 357, 361 (7th Cir. 1992) (citing Whitcomb). "The Voting

Rights Act does not guarantee that nominees of the Democratic Party

will be elected, even if black voters are likely to favor that

party's candidates." Id. Rather, § 2 is implicated only where

Democrats lose because they are black, not where blacks lose

because they are Democrats. While this rule is easier stated than

applied, the Whitcomb Court's application of the "results" test to

the facts before it provides helpful and indeed dispositive

guidance. As we explain in greater detail below, the Court's

dismissal in Whitcomb of the plaintiffs' vote dilution claim as a

"mere euphemism for political defeat at the polls," despite

evidence of polarized voting, the lingering effects of past

discrimination, and little electoral success among minority

candidates, precludes finding a violation of § 2 in most, but not

all, of the counties at issue.

B. The 1982 Amendments

The Senate Report accompanying the 1982 amendments to § 2

states that Congress intended to "codify" the "results test"

articulated and employed in Whitcomb and White. Congress of course

retained the statutory language restricting relief under § 2 to

"denial[s] or abridgment[s] of the right . . . to vote on account

of race or color." This limitation was not so much the product of

legislative discretion as constitutional imperative, given that the

scope of Congress' remedial power under the Civil War Amendments is

46

defined in large part by the wrongs they prohibit. See, e.g., City

of Rome v. United States, 446 U.S. 156, 206 (1980) (Rehnquist, J.,

dissenting); Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (Harlan,

J., concurring in part and dissenting in part). Thus, the Senate

Report explained that the 1982 amendments avoided constitutional

difficulty because "the very terms and operation of [§ 2] confine

its application to actual racial discrimination." S.Rep. 417 at

43, reprinted in 1982 U.S. Code Cong. & Admin. News at 221.

Congress embraced Whitcomb on terms consistent with § 2's

limitation to cases of "actual racial discrimination." Noting that

the claim before the Court in Whitcomb alleged vote dilution on

grounds that "black ghetto residents with [distinct] legislative

interests had been consistently underrepresented in the

legislature," the Senate Report recounted what it regarded as the

relevant facts of the case:

The evidence showed that the ghetto area voted

Democratic, that the Republicans won four of the five

elections from 1960 to 1968, and that in 1964, when the

Democrats won, ghetto area senators and representatives

were elected. Nine blacks had in fact been elected to

the legislature from the at-large districts between

[1960] and 1968.

Id. at 20-21, reprinted in 1982 U.S. Code Cong. & Admin. News at

198. The facts cited by the Senate mirror those previously

identified by Justice Marshall in Bolden and stressed here:

Plaintiffs were unsuccessful in years in which their party suffered

electoral defeat; they were able to elect representatives of their

choice when their party prevailed. Not surprisingly, the Senate

47

adopted Whitcomb's central teaching in presenting what it

understood to be the kernel of the decision:

The failure of the ghetto to have legislative seats in

proportion to its population emerges more as a function

of losing elections than of built-in bias against poor

Negroes. The voting power of ghetto residents may have

been "cancelled out," as the district court held, but

this seems a mere euphemism for political defeat at the

polls.

Id. at 21 (quoting Whitcomb, 403 U.S. at 153), reprinted in 1982

U.S. Code Cong. & Admin. News at 198.

In keeping with Whitcomb's sharp distinction between "built-in

bias" and "political defeat at the polls," the Senate Report

indicated that a proper application of the results test requires

courts to "distinguish[] between situations in which racial

politics play an excessive role in the electoral process, and

communities in which they do not." Id. at 33, reprinted in 1982

U.S. Code Cong. & Admin. News at 211. The Senate Report, again

following Whitcomb, accorded this inquiry into "racial bloc

voting," that is, whether "'race is the predominant determinant of

political preference,'" dispositive significance: Absent a showing

of "racial bloc voting," the Senate Report asserted, "it would be

exceedingly difficult for plaintiffs to show that they were

effectively excluded from fair access to the political process

under the results test." Id. (quoting S.Rep. 417 at 148 (Report of

the Subcommittee on the Constitution)), reprinted in 1982 U.S. Code

Cong. & Admin. News at 321). Since the results test itself,

contrary to critics' charges, "makes no assumptions one way or the

other about the role of racial political considerations in a

48

particular community," id. at 34, reprinted in 1982 U.S. Code Cong.

& Admin. News at 212, the Senate Report emphasized that plaintiffs

must supply affirmative proof of "racial bloc voting." The "mere

existence of underrepresentation plus a history of dual schools"

plainly does not suffice to make out a violation of § 2. Id.

It is difficult to see how the record in this case could

possibly support a finding of liability under the approach outlined

in the Senate Report. Plaintiffs have not even attempted to

establish proof of racial bloc voting by demonstrating that "race,"

not, as defendants contend, partisan affiliation, "is the

predominant determinant of political preference." They have

instead maintained, in the very teeth of the Senate Report, that

such a showing is unnecessary. Because the district court accepted

this argument, the test employed at trial enabled plaintiffs to

prevail by proving little more than a lack of success at the polls

and a history of discrimination. While this standard finds clear

support in Justice Brennan's plurality opinion in Thornburg v.

Gingles, 478 U.S. 30 (1986), it "simply was not the approach used

by the courts under the White/Zimmer test" and codified by

Congress. S. Rep. 417 at 34, reprinted in 1982 U.S. Code Cong. &

Admin. News at 212.

C. Thornburg v. Gingles

Justice Brennan's discussion of the first and second Gingles

factors received majority support. Gingles, 478 U.S. at 50-51,

49

56.25 With respect to the third element, however, five justices

rejected Justice Brennan's proposed standard for proving racial

bloc voting. Id. at 83 (White, J., concurring); id. at 100-01

(O'Connor, J., joined by Burger, C.J., Powell and Rehnquist, JJ.,

concurring). For this reason, we believe that it is to these

opinions, not Justice Brennan's, that we should look in attempting

to define the contours of the inquiry into legally significant bloc

voting.

Despite the presence of express language to the contrary in

the Senate Report, see S. Rep. 417 at 33 ("racial bloc voting" is

established when "race is the predominant determinant of political

preference"), reprinted in 1982 U.S. Code Cong. & Admin. News at

211, Justice Brennan held that racial bloc voting or "racially

polarized voting" did not describe divergent "voting patterns for

which the principal cause is race." Gingles, 478 U.S. at 61.

Instead, he asserted that "[i]t is the difference between the

choices made by blacks and whites--not the reasons for that

difference--that [matters]." Id. A consideration of "irrelevant

variables" such as partisan affiliation or the race of the

candidate, Justice Brennan urged, would "distort[] the equation and

25

In order to make out a § 2 vote dilution claim under

Gingles, minority plaintiffs challenging an at-large system must

prove that: (1) the group is sufficiently large and

geographically compact to constitute a majority in a single-

member district; (2) it is politically cohesive; and (3) the

white majority votes sufficiently as a bloc to enable it usually

to defeat the minority's preferred candidate. Gingles, 478 U.S.

at 50-51.

50

yield[] results that are indisputably incorrect under § 2 and the

Senate Report." Id. at 64.

Justice Brennan's assertion that racial political

considerations had no role in examining racial bloc voting was

squarely rejected by five Justices in Gingles. 478 U.S. at 83

(White, J., concurring); id. at 100-01 (O'Connor, J., joined by

Burger, C.J., Powell and Rehnquist, JJ., concurring). Justice

White argued that

Justice Brennan states in Part III-C that the crucial

factor in identifying polarized voting is the race of the

voter and that the race of the candidate is irrelevant.

Under this test, there is polarized voting if the

majority of white voters vote for different candidates

than the majority of the blacks, regardless of the race

of the candidates. I do not agree. Suppose an eight-

member multimember district that is 60% white and 40%

black, the blacks being geographically located so that

two safe black single-member districts could be drawn.

Suppose further that there are six white and two black

Democrats running against six white and two black

Republicans. Under Justice Brennan's test, there would

be polarized voting and a likely § 2 violation if all the

Republicans, including the two blacks, are elected, and

80% of the blacks in the predominately black areas vote

Democratic . . . . This is interest-group politics

rather than a rule hedging against racial discrimination.

I doubt that this is what Congress had in mind in

amending § 2 as it did, and it seems quite at odds with

the discussion in Whitcomb v. Chavis, 403 U.S. 124, 149-

160 (1971).

Id. at 83 (White, J., concurring) (emphasis added). Justice

O'Connor joined Justice White in maintaining that evidence that

white and minority voters generally supported different candidates

did not constitute legally significant racial bloc voting where

these patterns were attributable to partisan affiliation rather

than the race of the candidate. She therefore rejected Justice

Brennan's position that

51

evidence that the divergent racial voting patterns may be

explained in part by causes other than race, such as an

underlying divergence in the interests of minority and

white voters . . . . can never affect the overall vote

dilution inquiry. Evidence that a candidate preferred by

the minority group in a particular election was rejected

by white voters for reasons other than those which made

that candidate the preferred choice of the minority group

would seem clearly relevant in answering the question

whether bloc voting by white voters will consistently

defeat minority candidates. Such evidence would suggest

that another candidate, equally preferred by the minority

group, might be able to attract greater white support in

future elections.

I believe Congress also intended that explanations

of the reasons why white voters rejected minority

candidates would be probative of the likelihood that

candidates elected without decisive minority support

would be willing to take the minority's interests into

account. In a community that is polarized along racial

lines, racial hostility may bar these and other indirect

avenues of political influence to a much greater extent

than in a community where racial animosity is absent

although the interests of racial groups diverge. Indeed,

the Senate Report clearly stated that one factor that

could have probative value in § 2 cases was "whether

there is a significant lack of responsiveness on the part

of elected officials to the particularized needs of the

members of the minority group." S. Rep., at 29. The

overall vote dilution inquiry neither requires nor

permits an arbitrary rule against consideration of all

evidence concerning voting preferences other than

statistical evidence of racial voting patterns. Such a

rule would give no effect whatever to the Senate Report's

repeated emphasis on "intensive racial politics," on

"racial political considerations," and on whether "racial

politics . . . dominate the electoral process" as one

aspect of the "racial bloc voting" that Congress deemed

relevant to showing a § 2 violation. Id., at 33-34.

Similarly, I agree with Justice White that Justice

Brennan's conclusion that the race of the candidate is

always irrelevant in identifying racially polarized

voting conflicts with Whitcomb and is not necessary to

the disposition of this case. Ante, at 83 (concurring).

Id. at 100-01 (O'Connor, J., concurring) (emphasis added).

As courts and commentators alike have noted, Justice White and

Justice O'Connor were united in their fidelity to Whitcomb's

52

distinction between vote dilution and partisan politics and in

their opposition to Justice Brennan's attempt to expunge this

teaching from the bloc voting inquiry. See, e.g., Baird v.

Consolidated City of Indianapolis, 976 F.2d 357, 361 (7th Cir.

1992) ("Justice White . . . observ[ed] that system leading to the

election of black Republicans could not be dismissed as

discriminatory. To disregard the race of the victors, Justice

White concluded, 'is interest-group politics rather than a rule

hedging against racial discrimination.' Justice O'Connor agreed")

(citation omitted); Note, Voting Rights Act Section 2: Racially

Polarized Voting and the Minority Community's Representative of

Choice, 89 Mich. L. Rev. 1038, 1044 (1991); Note, Defining the

Minority Preferred Candidate Under Section 2, 99 Yale L.J. 1651,

1662-63 (1990). The division in Gingles between the Brennan

plurality and the five Justices who supported the White/O'Connor

approach cuts deep, reflecting quite different visions of voting

rights and their statutory treatment. Since these five Justices

expressly rejected a test that would permit § 2 liability to attach

upon a showing that white and black citizens generally gave their

votes to different candidates in favor of an inquiry into the

possible explanations of these divergent voting patterns, we

believe that it is this view, not Justice Brennan's, that commands

our allegiance. The district court's failure to accord similar

weight to this approach was not justified.

All members of the Court in Gingles agreed that only "legally

significant" racial bloc voting is cognizable under § 2. They

53

disagreed sharply, however, on the sort of proof that would

implicate this provision. Justice Brennan held that a "minority

must be able to demonstrate that the white majority votes

sufficiently as a bloc to enable it . . . usually to defeat the

minority's preferred candidate." Gingles, 478 U.S. at 51. Justice

O'Connor, on the other hand, argued that such a showing did not

warrant judicial intervention: "[A] reviewing court should be

required to find more than simply that the minority group does not

usually attain an undiluted measure of electoral success." Id. at

99 (O'Connor, J., concurring). Instead, she would require a court

to "find that even substantial minority success will be highly

infrequent under the challenged plan before it may conclude, on

this basis alone, that the plan operates to 'cancel out or minimize

the voting strength of [the] racial grou[p].'" Id. at 99-100

(quoting White, 412 U.S. at 765) (alterations in original).

Justice O'Connor's admonition that federal courts should stay

their hand absent proof that "even substantial minority success

will be highly infrequent" receives formal expression in her

insistence that the racial bloc voting inquiry must include an

examination of the causes underlying divergent voting patterns.

Both Justice Brennan and Justice O'Connor recognized that racial

bloc voting is intimately related to the responsiveness of elected

officials to the interests of minorities, one of the factors

considered as part of the "totality of circumstances." As Justice

Brennan indicated, "[n]ot only does '[v]oting along racial lines'

deprive minority voters of their preferred representatives in these

54

circumstances, it also 'allows those elected to ignore [minority]

interests without fear of political consequences.'" Id. at 48 n.14

(quoting Rogers v. Lodge, 458 U.S. 613, 623 (1982) (alterations in

original)). The close tie between bloc voting and representatives'

responsiveness noted by the Court in Rogers and confirmed by

Justice Brennan rests on common sense: Public officials need not

address concerns expressed by minorities so long as white bloc

voting ensures that they will remain minority concerns. The Court

in Rogers and Justice Brennan, however, differed sharply over the

sort of polarized voting that might provide elected officials with

such assurances and federal courts with grounds to intervene. The

Court in Rogers held that this close identification was warranted

only where racial political considerations were present, that is,

where white bloc voting caused "minority candidates [to] lose

elections solely because of their race." Rogers, 458 U.S. at 623

(emphasis added). Justice Brennan's approach, by contrast, assumes

that political leaders may safely ignore minority concerns even

where black and white voters are separated only by differing

interests. Put another way, Justice Brennan's bloc voting test

accords governing majorities linked only by the perception of

common interests the same permanence and thus relevance under § 2

as white blocs cemented by racial prejudice.

Justice O'Connor not only rejected Justice Brennan's polarized

voting standard but was also unwilling to join in the questionable

assumption that minorities are unable to influence elections and

secure the attention of public officials where these groups have

55

been unsuccessful in their efforts to elect their preferred

representatives. Gingles, 478 U.S. at 100-101 (O'Connor, J.,

concurring). Unlike Justice Brennan, she argued that "Congress

also intended that explanations of the reasons why white voters

rejected minority candidates would be probative of the likelihood

that candidates elected without decisive minority support would be

willing to take the minority's interests into account." Id. at 100

(O'Connor, J., concurring). Following Rogers, Justice O'Connor

believed that a minority group's prospects for future electoral

success and the likelihood that elected officials will take account

of their interests differ materially "in a community where racial

animosity is absent although the interests of racial groups

diverge." Id. (O'Connor, J., concurring). A tendency among whites

to cast their votes on the basis of race presents a far more

durable obstacle to the coalition-building upon which minority

electoral success depends than disagreements over ideology for, as

Professor Ely observes, "prejudice blinds us to overlapping

interests that in fact exist." John Hart Ely, Democracy and

Distrust 153 (1980). Representatives who owe their office to the

support of majorities bound by prejudice need not attend to the

interests of minorities, since the bias uniting their constituents

ensures that these issues will remain minority concerns. Where, on

the other hand, voting patterns correlate with partisan affiliation

or perceived interest, the open channels of communication

facilitate a recognition of points of common ground that might

otherwise go undetected. Elected officials in these communities

56

cannot ignore minority interests because this group might be part

of the winning coalition that votes them out of office. The deep

division between Justice Brennan and Justice O'Connor on the

question of racial bloc voting thus reflects fundamentally

different views of political factions and our constitutional and

statutory arrangements for accommodating their simultaneous demands

for fluidity and fixity.26

26

The dissent contends that we have departed from

controlling Supreme Court precedent in requiring plaintiffs to

show more than divergent voting patterns among white and minority

voters in order to establish legally significant bloc voting.

The dissent properly points out that a majority of the Court in

Gingles held that racial bloc voting rests on proof that "the

white majority votes sufficiently as a bloc to enable it . . .

usually to defeat the minority's preferred candidate." Gingles,

478 U.S. at 51. As the Court's recent unanimous decision in

Voinovich v. Quilter, 113 S. Ct. 1149, 1157 (1993), indicates,

this standard is hardly controversial. The Justices in Gingles,

however, were sharply divided on the crucial, separate issue of

the sort of showing necessary to establish "legally significant"

bloc voting--that is, the conditions that enable courts to

predict that a majority bloc will consistently "defeat the

minority's preferred candidate." The dissent correctly concludes

that the approach taken by Justice White and Justice O'Connor,

rather than that offered by Justice Brennan, should govern this

second inquiry. Thus, we are in full agreement with the dissent

that the possible causes of polarized voting must be examined

because "they call into question the consistency with which the

white bloc will oppose minority-preferred candidates." Dissent

at ___.

As we state in the text, we regard evidence that divergent

voting patterns are attributable to partisan affiliation or

perceived interests rather than race as quite probative on the

question of a minority group's future success at the polls. The

dissent, however, while apparently willing to consider other

possible non-racial causes, asserts that partisan affiliation is

insignificant. We are told, in fact, that "the Voting Rights

Act, as interpreted in Gingles and succeeding cases, presupposes

partisan voting." Dissent at ___. This refusal to distinguish

racial politics from partisan politics strikes us as utterly

inconsistent with the unbroken line of authority extending from

Whitcomb and White through Justice Marshall's dissent in Bolden

and the 1982 amendments to the controlling concurring opinions in

Gingles the dissent purports to embrace.

57

Given that the divergent voting patterns in this case are in

most instances attributable to partisan affiliation rather than

race, it is thus far from coincidental that the district court

found no evidence of unresponsiveness on the part of elected

officials in any of the contested counties. The irony, of course,

is that the subdistricting remedy sought by plaintiffs provides

most judges with the same opportunity to ignore minority voters'

interests without fear of political reprisal they would possess if

elections were in fact dominated by racial bloc voting.

D. Partisan Politics

We need not hold that plaintiffs must supply conclusive proof

that a minority group's failure to elect representatives of its

choice is caused by racial animus in the white electorate in order

to decide that the district court's judgment must be reversed. It

is true that such a requirement could be inferred from the text of

§ 2 (prohibiting "denial[s] or abridgement[s] of the right . . . to

vote on account of race or color"); the caselaw Congress intended

to codify in amending the provision, see, e.g., Whitcomb, 403 U.S.

at 153 (vote dilution does not lie when losses at the polls do not

reflect "built-in bias against poor Negroes"); the Senate Report,

see S. Rep. 417 at 33 (equating proof of racial bloc voting with

evidence that "race is the predominant determinant of political

preference"), reprinted in 1982 U.S. Code Cong. & Admin. News at

211; the testimony of prominent supporters of the Act, see, e.g.,

Hearings on the Voting Rights Act Before the Subcomm. on the

Constitution of the Senate Comm. of the Judiciary, 97th Cong., 2d

58

Sess. 1367-68 (statement of Prof. Drew Days) (§ 2 implicated "where

a combination of public activity and private discrimination have

joined to make it virtually impossible for minorities to play a

meaningful role in the electoral process"); and the controlling

opinions of the Supreme Court. See Gingles, 478 U.S. at 100

(O'Connor, J., concurring) (distinguishing communities where

polarized voting is attributable to "racial hostility" and those in

which "racial animosity is absent although the interests of racial

groups diverge"). There is also a powerful argument supporting a

rule that plaintiffs to establish legally significant racial bloc

voting must prove that their failure to elect representatives of

their choice cannot be characterized as a "mere euphemism for

political defeat at the polls," Whitcomb, 403 U.S. at 153, or the

"result" of "partisan politics." Bolden, 446 U.S. at 100 (Marshall,

J., dissenting).

Describing plaintiffs' burden in terms of negating "partisan

politics" rather than affirmatively proving "racial animus" would

not be simply a matter of nomenclature. As Judge Wood emphasizes,

there are many other possible non-racial causes of voter behavior

beyond partisan affiliation. A rule conditioning relief under § 2

upon proof of the existence of racial animus in the electorate

would require plaintiffs to establish the absence of not only

partisan voting, but also all other potentially innocent

explanations for white voters' rejection of minority-preferred

candidates. Factors that might legitimately lead white voters to

withhold support from particular minority candidates include, for

59

example, limited campaign funds, inexperience, or a reputation

besmirched by scandal. Because these additional factors map only

imperfectly onto partisan affiliation, detailed multivariate

analysis might then be the evidence of choice. The argument would

then be that without this additional inquiry, courts that confine

their scrutiny to partisan voting might well find racial bloc

voting in circumstances where the losses of minority-preferred

candidates were actually attributable to causes other than race.

This result it is urged, might unfairly tip the scales in favor of

liability.

This argument possesses considerable force. Certainly, the

allocation of proof in § 2 cases must reflect the central purpose

of the Voting Rights Act and its intended liberality as well as the

practical difficulties of proof in the real world of trial. In

countless areas of the law weighty legal conclusions frequently

rest on methodologies that would make scientists blush. The use of

such blunt instruments in examining complex phenomena and

corresponding reliance on inference owes not so much to a lack of

technical sophistication among judges, although this is often true,

but to an awareness that greater certitude frequently may be

purchased only at the expense of other values. Here, we are told

that we cannot ignore the significant and, assertedly, unacceptable

substantive consequences that would accompany a more nuanced bloc

voting inquiry. Requiring plaintiffs affirmatively to establish

that white voters' rejection of minority-preferred candidates was

motivated by racial animus would make racial bloc voting both

60

difficult and, considering the additional analysis that would be

needed, expensive to establish. See, e.g., McCrary, Discriminatory

Intent: The Continuing Relevance of "Purpose" Evidence in Vote-

Dilution Lawsuits, 28 How. L. J. 463, 492 (1985). Moreover, it

would facilitate the use of thinly-veiled proxies by permitting,

for example, evidence that a minority candidate was regarded as

"unqualified" or "corrupt" to defeat a claim that white voters'

refusal to support him was based on race or ethnicity. The

argument continues that an inquiry into causation beyond partisan

affiliation seems inconsistent with the fundamental division

between "partisan politics" and "racial vote dilution" set out by

the Court in Whitcomb and White and confirmed by Congress. Legal

standards of necessity reflect a balance of competing

considerations. Finally, the argument continues that limiting the

racial bloc voting inquiry to a determination whether or not

divergent voting patterns are attributable to partisan differences

or an underlying divergence in interests best captures the mandate

of § 2.27 Having said this, we need not resolve the debate today.

Whether or not the burden of the plaintiffs to prove bloc voting

includes the burden to explain partisan influence, the result is

the same. This is so even if the partisan voting is viewed as a

defensive parry.

27

The facts of this case do not require us to determine

whether defendants may attempt to prove that losses by minority-

preferred candidates are attributable to non-racial causes other

than partisan affiliation. We express no opinion on this

entirely separate question.

61

Finally, we recognize that even partisan affiliation may serve

as proxy for illegitimate racial considerations. Minority voters,

at least those residing in the contested counties in this case,

have tended uniformly to support the Democratic Party. At the same

time, a majority of white voters in most counties have consistently

voted for district court candidates fielded by the Republican

Party. Noting this persistent, albeit imperfect correlation

between party and race, plaintiffs assert that a determination that

partisan affiliation best explains voting patterns should not

foreclose § 2 liability in this case because the Republican and

Democratic Parties are proxies for racial and ethnic groups in

Texas. Whitcomb's distinction between "racial vote dilution" and

"political defeat at the polls" should not control, they contend,

for "partisan politics" is "racial politics."

We fully agree with the plaintiffs that the bloc voting

inquiry, like the "question whether the political processes are

'equally open,'" must rest "upon a searching practical evaluation

of the 'past and present reality.'" S.Rep. 417 at 30 (quoting

White, 412 U.S. at 769-770), reprinted in 1982 U.S. Code Cong. &

Admin. News at 208. Indeed, the refusal of Congress and the

Supreme Court to equate losses at the polls with actionable vote

dilution where these unfavorable results owe more to party than

race may be traced directly to this "functional" view of political

life. Plaintiffs are therefore entirely correct in maintaining

that courts should not summarily dismiss vote dilution claims in

62

cases where racially divergent voting patterns correspond with

partisan affiliation as "political defeats" not cognizable under

§ 2.

We do not agree, however, that a "functional" and "practical"

review of Texas judicial elections exposes political parties as

proxies for race or ethnicity. In assessing the record before us,

we do not indulge in the hopeful yet unrealistic assumption that

decisions to support particular political parties among black and

white voters in all cases rest on issues other than race. We

instead focus on the same two factors cited by the Court in

Whitcomb and the concurring Justices in Gingles. First, white

voters constitute the majority of not only the Republican Party,

but also the Democratic Party, even in several of the counties in

which the former dominates. In Dallas County, for example, 30-40%

of white voters consistently support Democrats, making white

Democrats more numerous than all of the minority Democratic voters

combined. The suggestion that Republican voters are galvanized by

a "white" or "anti-minority" agenda is plausible only to the extent

that the Democratic Party can be viewed as a vehicle for advancing

distinctively minority interests, which clearly is not the case.

At the same time, white Democrats have in recent years experienced

the same electoral defeats as minority voters. If we are to hold

that these losses at the polls, without more, give rise to a racial

vote dilution claim warranting special relief for minority voters,

a principle by which we might justify withholding similar relief

63

from white Democrats is not readily apparent. See Whitcomb, 403

U.S. at 153.

Second, both political parties, and especially the

Republicans, aggressively recruited minority lawyers to run on

their party's ticket. Consequently, white as well as minority

voters found themselves not infrequently voting against candidates

sharing their respective racial or ethnic backgrounds in favor of

their party's nominee. In particular, the undisputed evidence

discloses that white voters in most counties, both Republican and

Democratic, without fail supported the minority candidates slated

by their parties at levels equal to or greater than those enjoyed

by white candidates, even where the minority candidate was opposed

by a white candidate. In Dallas County, for example, Judge Wright,

a black woman, received the greatest recorded percentage of the

white vote (77%) in her race against a white Democrat. To conclude

on this record that political parties serve as proxies for race is

simply unwarranted. Because the evidence in most instances

unmistakably shows that divergent voting patterns among white and

minority voters are best explained by partisan affiliation, we

conclude that plaintiffs have failed to establish racial bloc

voting in most, but not all, of the counties.28

E. Two Objections

The Houston Lawyers' Association and amicus the United States

raise two particular objections that merit additional

28

Defendant Judge Entz has contended throughout this

litigation that § 2, as amended, is unconstitutional. In view of

our construction of the statute, we need not reach this question.

64

consideration. These arguments closely track those made by Justice

Brennan--arguments rejected by five members of the Supreme Court in

Gingles. Nevertheless, the urgency with which they are pressed

here warrants a further explanation of the reasons underlying the

views expressed by Justice White and Justice O'Connor in their

separate opinions.

The Association contends that a requirement that plaintiffs

prove that their failure to elect representatives of their choice

is attributable to white bloc voting rooted in racial

considerations is presumptively inconsistent with § 2's focus on

"results." The Association reads this test to impose on plaintiffs

the burden of affirmatively establishing that white voters are

motivated by racial animus in selecting candidates. So

characterized, the racial bloc voting standard we apply today

allegedly contravenes the fundamental purpose of the 1982

amendments by reintroducing the "intent" test announced in Mobile

v. Bolden, 446 U.S. 55 (1980). See also Richard L. Engstrom, The

Reincarnation of the Intent Standard: Federal Judges and At-Large

Election Cases, 28 How. L. J. 495, 498 (1985). That is not so.

The Association does not seriously contend that the

legislative history accompanying the amendments to § 2 lends direct

support for its position. The Senate Report quite unambiguously

declares that Congress intended to "make clear that plaintiffs need

not prove a discriminatory purpose in the adoption or maintenance

of the challenged practice or system in order to establish a

violation." S. Rep. 417 at 27 (emphasis added), reprinted in 1982

65

U.S. Code Cong. & Admin News at 205. Moreover, far from suggesting

that the presence of racial animus in the electorate was

irrelevant, supporters of the 1982 legislation maintained that the

amendments were necessary precisely in order to reach such "private

discrimination." See, e.g., Hearings on the Voting Rights Act

Before the Subcomm. on the Constitution of the Senate Comm. of the

Judiciary, 97th Cong., 2d Sess. 1367-68 (statement of Prof. Drew

Days). The Association instead insists that a standard requiring

§ 2 plaintiffs to show that their failure to elect representatives

of their choice is attributable to white bloc voting rooted in

racial considerations "frustrate[s] the goals Congress sought to

achieve by repudiating the intent test of [Bolden]." Gingles, 478

U.S. at 71 (opinion of Brennan, J.). Given the palpable tension

between "the goals Congress sought to achieve" and those it

actually expressed, it is hardly surprising that the principles the

Association purports to locate in the Senate Report bear only a

passing resemblance to those offered by Congress. Compare Gingles,

478 U.S. at 70-73 (opinion of Brennan, J.) with S. Rep. 417 at 36-

37, reprinted in 1982 U.S. Code Cong. & Admin News at 214-15.

More importantly, the Association's contention that an inquiry

into the explanations underlying racially divergent voting patterns

somehow conflicts with Congress' abandonment of the intent

requirement announced in Bolden completely ignores the fact that

the Senate Report expressly adopted the standard we employ in

codifying the "results" test. Indeed, like Justice Marshall in

Bolden itself, see 446 U.S. at 109 (Marshall, J., dissenting), the

66

Senate Report reiterated Whitcomb's holding that "[t]he failure of

the ghetto to have legislative seats in proportion to its

population emerges more as a function of losing elections than of

built-in bias against poor Negroes" precisely in order to show that

"intent had [not] been required to prove a violation." S. Rep. 417

at 21 (quoting Whitcomb, 403 U.S. at 153), reprinted in 1982 U.S.

Code Cong. & Admin News at 198. In keeping with Whitcomb, the

Senate Report equated "racial bloc voting" with proof that "race is

the predominant determinant of political preference." Id. at 33,

reprinted in 1982 U.S. Code Cong. & Admin News at 211. The

Association's assertion that the test we confirm today is

inconsistent with "the goals Congress sought to achieve" in

amending § 2 becomes plausible only if Whitcomb is purged from our

voting rights jurisprudence. It is therefore not coincidental that

its brief, like Justice Brennan's opinion, see Gingles, 478 U.S. at

61-74, fails to include a citation, let alone a discussion, of the

decision Congress intended to codify.

The United States offers a second argument incorporating

elements of Justice O'Connor's as well as Justice Brennan's opinion

in Gingles. The government agrees with Justice O'Connor that an

inquiry into the causes underlying polarized voting is appropriate

in certain circumstances. It follows Justice Brennan, however, in

maintaining that evidence tending to show that divergent voting

patterns are attributable to partisan affiliation or a divergence

in interests rather than race is irrelevant in assessing whether

67

plaintiffs have established legally significant white bloc voting.

We disagree with this argument as well.

The United States' assertion that partisan affiliation cannot

serve to explain voting patterns finds no support in Justice

O'Connor's opinion. The very inquiry it seeks to exclude--whether

election returns track "an underlying divergence in the interests

of minority and white voters,"--was the only non-racial cause

expressly cited in her opinion as a possible explanation of

divergent voting patterns. See Gingles, 478 U.S. at 100 (O'Connor,

J., concurring).

The United States argues that the political differences

frequently observed among white and minority voters are largely the

product of disparities in socioeconomic status, which are

themselves attributable to the presence or absence of past

discrimination. In this view, a standard that would permit

divergence in interest to preclude the establishment of racial bloc

voting "would render meaningless the Senate Report factor that

addresses the impact of low socioeconomic status on a minority

group's level of participation." Gingles, 478 U.S. at 69.

This argument is not without force; it is, however, clearly

foreclosed by the Senate Report. Congress was not unaware that

political preference often correlates strongly with socioeconomic

status; particularized needs clearly give rise to particularized

interests. This observation did not, however, lead Congress to

soften the line between partisan politics and racial vote dilution

established by the Court in Whitcomb. To the contrary, the Senate

68

Report not only adopted Whitcomb's holding without modification,

but expressly reminded its readers in so doing that the vote

dilution claim dismissed by the Whitcomb Court as "a mere euphemism

for political defeat at the polls" had been brought by "black

ghetto residents with [distinct] legislative interests." S. Rep.

417 at 20, reprinted in 1982 U.S. Code Cong. & Admin News at 198.

The argument pressed here by the United States has been

acknowledged, and rejected, by Congress.

The Senate factor cited by Justice Brennan in support of his

refusal to attach relevance to a divergence of interests expressly

relates, not to whether minority groups have been able to elect

representatives of their choice, but to "the extent to which

members of the minority group . . . bear the effects of

discrimination in areas such as education, employment, and health,

which hinder their ability to participate in the political

process." S. Rep. 417 at 29 (emphasis added), reprinted in 1982

U.S. Code Cong. & Admin News at 206. As the Court in Chisom v.

Roemer confirmed, § 2 plaintiffs "must allege an abridgement of the

opportunity to participate in the political process and to elect

representatives of one's choice." 111 S.Ct. at 2365 (emphasis in

original). The effects of past discrimination, as the text of the

Senate Report indicates, pertain solely to the "political access"

prong of a § 2 claim. It is by considering these effects in this

regard, not in the bloc voting inquiry, that courts give effect to

congressional intent. The United States' approach, by contrast,

would allow this single factor to assume dispositive significance

69

in both of these inquiries. In so doing, it would permit liability

to attach, in direct conflict with the Senate Report, upon "the

mere existence of underrepresentation plus a history of dual

schools." S. Rep. 417 at 34, reprinted in 1982 U.S. Code Cong. &

Admin News at 212. Electoral losses that are attributable to

partisan politics do not implicate the protections of § 2.

70

IV. Other Legal Errors Affecting the Vote Dilution Inquiry

Defendants cite three additional legal errors that allegedly

infect the district court's findings of illegal vote dilution in

each of the counties. Specifically, they argue that the district

court erred in: (1) excluding elections pitting Hispanic

candidates against white candidates in counties in which the

evidence unmistakably showed that black and Hispanic voters were

cohesive; (2) refusing to consider the paucity of minority lawyers

in assessing the extent to which members of minority groups had

been elected to the district court; and (3) finding that the

effects of past discrimination hindered the ability of minority

groups to participate in the political process despite the presence

of little or no evidence suggesting that their participation was in

fact depressed. We examine these issues in turn.

A. Cohesiveness of Different Minority Groups

The importance of the distinction in § 2 jurisprudence between

illegal vote dilution and political defeat, between protecting

racial minorities and fostering the work of political coalitions,

raises the stakes for the question whether different racial or

ethnic minority groups, usually blacks and Hispanics, may combine

to form a single minority group within the meaning of the Voting

Rights Act. Judges and commentators alike have questioned whether

transitory unions rooted in political expedience may be properly

equated with those whose source lies in the more enduring bonds

supplied by a shared race or ethnicity. League of United Latin

American Citizens v. Midland Indep. School District, 812 F.2d 1494,

71

1505-07 (5th Cir. 1987) (Higginbotham, J., dissenting); Katherine

I. Butler & Richard Murray, Minority Vote Dilution Suits and the

Problem of Two Minority Groups: Can a 'Rainbow Coalition' Claim the

Protection of the Voting Rights Act?, 21 Pacific L.J. 619, 641-57

(1990). Nevertheless, we have treated the issue as a question of

fact, allowing aggregation of different minority groups where the

evidence suggests that they are politically cohesive, see, e.g.,

Midland I.S.D., 812 F.2d at 1500-02, and we need not revisit this

question here.

This issue is raised today in the context of the particular

elections to which the district court looked as part of its inquiry

into racial bloc voting. This court has consistently held that

elections between white candidates are generally less probative in

examining the success of minority-preferred candidates, generally

on grounds that such elections do not provide minority voters with

the choice of a minority candidate. See, e.g., Campos v. City of

Baytown, 840 F.2d 1240, 1245 (5th Cir. 1988); Citizens for a Better

Gretna v. City of Gretna, 834 F.2d 496, 503 (5th Cir. 1987). For

this reason, courts usually focus on those elections involving

black or Hispanic candidates in examining whether black or Hispanic

voters enjoy an equal opportunity to elect representatives of their

choice. Where blacks and Hispanics are cohesive, we have held that

the relevant elections are those including either Hispanic or black

candidates. See, e.g., Baytown, 840 F.2d at 1245. Defendants

contend that the district court erred in refusing to consider

elections pitting Hispanic and white candidates in Harris and

72

Tarrant Counties, counties in which plaintiffs proceed on behalf of

black voters only, but where the evidence indisputably showed that

blacks and Hispanics were politically cohesive. In light of our

precedents, we must agree.

Blacks and Hispanics have joined forces for purposes of this

suit in Midland, Lubbock, and Ector Counties. In these counties,

white-Hispanic elections are relevant in proving legally

significant white bloc voting, for the Hispanic candidate provides

the combined Hispanic-black minority with a viable minority choice.

But plaintiffs contend that where they represent only black voters,

white-Hispanic elections in which the Hispanic candidate received

the support of black voters are irrelevant. A difference in

litigation strategy cannot support this distinction. Cohesion is

a fact, not a strategic card to be played at the caprice of a

plaintiff. As we stated in Campos, "if the statistical evidence is

that Blacks and Hispanics together vote for the Black or Hispanic

candidate, then cohesion is shown." Id. at 1245 (footnote

omitted). If blacks and Hispanics vote cohesively, they are

legally a single minority group, and elections with a candidate

from this single minority group are elections with a viable

minority candidate.

Plaintiffs next argue that there is evidence in the record

that blacks and Hispanics are not politically cohesive in Harris

and Tarrant Counties. They do not tell us to which evidence they

refer, and understandably so. The record shows that blacks and

Hispanics were more cohesive in Harris and Tarrant Counties than in

73

Midland and Ector Counties, counties in which plaintiffs represent

both blacks and Hispanics and the district court found cohesion.

In Harris County, Taebel studied 45 elections in which he

determined the percentage of black and Hispanic votes cast for the

minority/winning candidate. In 35 elections the black and Hispanic

vote percentages varied by less than 10%. Similarly, the levels of

black and Hispanic support for the same candidate were within ten

percentage points in 13 of the 17 elections studied in Tarrant

County. In Midland County, by contrast, the black and Hispanic

voting percentages differed by less than 10% in only 4 of the 8

elections analyzed; in Ector County, this close correlation between

the preferences of Hispanic and black voters was shown in just 2 of

10 elections. Under the present law of this circuit, there is no

error in the district court's findings of cohesion in Midland,

Ector, and Lubbock Counties, because in those counties a

significant number of blacks and Hispanics usually voted for the

same candidates. Gingles, 478 U.S. at 56. But this standard also

compels the conclusion that there is also black-Hispanic cohesion

in Harris and Tarrant Counties. The district court thus clearly

erred in ignoring elections involving Hispanic and white candidates

in these counties.29

29

The dissent points out that defendants did not ask the

trial court to make a specific finding that black and Hispanic

voters were politically cohesive in Harris and Tarrant Counties.

This observation, while correct, is beside the point, for that is

not the claim they raise on appeal. Rather, defendants argue

that the district court improperly refused to consider elections

involving Hispanic candidates studied by Dr. Taebel, their

expert. This question is most assuredly before us and, given the

overwhelming evidence of cohesiveness among black and Hispanic

74

B. Relevance of Small Number of Minority Lawyers

The absence of minority office holders is typically an

important consideration in dilution cases. In this litigation, the

small number of minority judges in the target counties has been the

cornerstone of the plaintiffs' proof.

The office of district judge has more eligibility requirements

than the age and citizenship prerequisites of many public offices.

A person must be a licensed attorney in the state of Texas for four

years, and a resident of the district for two years, before

becoming eligible for the post. The need for district judges to be

experienced lawyers is obvious.

Undisputed evidence shows that in all of the counties, the

percentage of minority lawyers was much smaller than the percentage

of minority voters. In fact, minority lawyers disproportionately

serve as judges, when their percentage among all eligible lawyers

is considered. It is true that we have refused "to preclude vote

dilution claims where few or no [minority] candidates have sought

offices in the challenged electoral system." Westwego Citizens for

Better Gov't v. City of Westwego, 872 F.2d 1201, 1208 n.9 (5th Cir.

1989) (Westwego I). That holding is a far cry from the conclusion

that the number of minority candidates eligible to run has no

relevance. Section 2 and the Senate Report instruct us to consider

the number of minority candidates elected to office. At the same

time, we are instructed to evaluate the totality of the

voters in Harris and Tarrant Counties, is susceptible to only one

answer.

75

circumstances with a "'functional' view of the political process."

Gingles, 478 U.S. at 45, 106 S. Ct. at 2764. The cold reality is

that few minority citizens can run for and be elected to judicial

office. A functional analysis of the electoral system must

recognize the impact of limited pools of eligible candidates on the

number of minority judges that has resulted. See Southern

Christian Leadership Conf. of Ala. v. Evans, 785 F. Supp. 1469,

1476-77 (M.D. Ala. 1992).

The record discloses that at times during the 1980's, the

percentage of minority judges in five targeted counties exceeded

the percentage of minority lawyers who were eligible to run for

district judge. The following table summarizes the evidence.

Table IV.B

County Minority Judges as Minority Lawyers as Minority Voters

%age of District %age of Eligible as %age of Voting

Judges, 1988 Lawyers, 1989 Age Population

Dallas 8.3 1.0 16.0 (black)

Harris 5.1 3.8 18.2 (black)

Tarrant 13.0 2.4 10.4 (black)

Bexar 26.3 11.4 41.4 (Hispanic)

Travis 7.7 2.7 14.4 (Hispanic)

Jefferson 0.0 3.1 24.6 (black)

Lubbock 0.0 5.1 21.6 (both)

Midland 0.0 3.2 19.7 (both)

Ector 0.0 4.0 21.9 (both)

In counties with no minority judges, the number of eligible

candidates was very small. In Ector County, for example, one

survey found five eligible Hispanic lawyers and only one eligible

black lawyer. Apparently none of Lubbock County's 499 lawyers in

76

1989 was a black attorney eligible for a district judgeship,

although the State Bar reported two black lawyers in the county.

The absence of eligible candidates goes a long way in

explaining the absence of minority judges. Plaintiffs cannot

emphasize the scarcity of successful minority candidates to support

the inference of dilution and simultaneously urge that the number

of minorities eligible to run is not relevant. Plaintiffs argue

that this factor may not be considered because the limited number

of minority lawyers was caused by state discrimination in

education. We are not persuaded this argument merits exclusion of

the evidence. The Voting Rights Act responds to practices that

impact voting; it is not a panacea addressing social deficiencies.

See Presley v. Etowah County Comm'n, U.S. , , 112 S. Ct.

820, 832 (1992).

C. Past Discrimination

The district court also found that Texas' history of

discrimination "touched many aspects of the lives of minorities in

the Counties in question including their access to and

participation in the democratic system governing this State and

their socio-economic status."30 The district court, however, did

30

Two separate Zimmer factors guided the court's inquiry:

1. the extent of any history of official discrimination

in the state or political subdivision that touched the

right of the members of the minority group to register,

to vote, or otherwise to participate in the democratic

process;

. . . . . . . . . .

5. the extent to which members of the minority group in

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not refer to specific facts in the record to support this

conclusion. Instead, the court cited a 1980 Civil Rights

Commission Report describing civil rights developments in Texas

during the years 1968-1978 and a 1981 district court opinion

detailing race relations between minority and white residents of

one of Texas' smaller cities during the 1960's and 1970's.

Texas' long history of discrimination against its black and

Hispanic citizens in all areas of public life is not the subject of

dispute among the parties. Nor has anyone questioned plaintiffs'

assertion that disparities between white and minority residents in

several socioeconomic categories are the tragic legacies of the

State's discriminatory practices. Defendants do argue, however,

that these factors, by themselves, are insufficient to support the

district court's "finding" that minorities do not enjoy equal

access to the political process absent some indication that these

effects of past discrimination actually hamper the ability of

minorities to participate. We again agree.

It would seem tautological that a factor directing courts to

determine whether past discrimination hinders a minority group's

access to the political process would require a showing that the

group does not in fact participate to the same extent as other

the state or political subdivision bear the effects of

discrimination in such areas as education, employment

and health, which hinder their ability to participate

effectively in the political process;

S. Rep. 417 at 28-29, reprinted in 1982 U.S. Code Cong. & Admin.

News at 206.

78

citizens. Nevertheless, prior to the amendments to § 2, this court

held that evidence of decreased participation among minorities was

unnecessary on grounds that "[i]nequality of access is an inference

which flows from the existence of economic and educational

inequalities." Kirksey v. Board of Supervisors, 554 F.2d 139, 145

(5th Cir. 1977) (en banc). This standard, however, was challenged

by some of our later cases, see, e.g., McIntosh Cty. NAACP v. City

of Darien, 605 F.2d 753, 759 (5th Cir. 1979), and was decisively

rejected by Congress in 1982. As the Senate Report stated:

The courts have recognized that disproportionate

educational, employment, income level and living

conditions arising from past discrimination tend to

depress minority political participation. Where these

conditions are shown, and where the level of black

participation in politics is depressed, plaintiffs need

not prove any further causal nexus between their

disparate socio-economic status and the depressed level

of political participation.

S. Rep. 417 at 29 n.114 (emphasis added), reprinted in 1982 U.S.

Code Cong. & Admin. News at 207 n.114. As this statement

discloses, the Senate Report, while not insisting upon a causal

nexus between socioeconomic status and depressed participation,

clearly did not dispense with proof that participation in the

political process is in fact depressed among minority citizens. In

apparently holding that socioeconomic disparities and a history of

discrimination, without more, sufficed to establish these Zimmer

factors, the district court employed the wrong legal standard.

Nor do we believe that the record before us can support such

a finding under the proper test. Plaintiffs have offered no

evidence of reduced levels of black voter registration, lower

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turnout among black voters, or any other factor tending to show

that past discrimination has affected their ability to participate

in the political process. While there are indications that Hispanic

citizens register to vote at a lower rate than white and black

citizens, this data provides support for such a finding in only

Bexar and Travis Counties, where plaintiffs proceed on behalf of

Hispanic voters only.

Plaintiffs contend that the district court could have relied

on the opinion offered by Dr. Brischetto, who, during his testimony

regarding Bexar County, stated:

Well, certainly having less of these socioeconomic

resources or characteristics to draw on, we find that

minority voters will participate less in the electoral

system. Education is an important resource. For

example, it enables people to feel like they are more a

part of and take part in the election system to a greater

extent. Lacking that they participate less. So it is

important, it has an effect certainly on their

participation when they are subordinate status in the

stratification system.

Brischetto's statement, as its tone suggests, was not so much a

finding as a prediction or hypothesis about what one might expect

to find among minorities who still bore the scars of past

discrimination. It is for this reason that he could claim that his

testimony regarding the participation of Hispanics in Bexar applied

with equal force to all of the other counties. In fact, the nature

and basis of his opinion became explicit as the testimony shifted

to these other locales. In Travis County, for example, he stated

only that "stratification . . . may very well also be an indication

of the fact that Hispanics are less likely to participate fully and

effectively in the electoral system in Travis County." In Lubbock,

80

Brischetto stated only that "I think [such stratification] is an

indication that minorities are less equipped with those resources

that they need to participate fully in the political system."

Finally, he testified in the context of Tarrant County that

socioeconomic differences "indicate[] that minorities may have a

diminished ability to participate fully in the electoral system

because of their lower status and stratification that exists in

that community."

Brischetto's testimony thus provides support for the common

sense proposition that depressed political participation typically

accompanies poverty and a lack of education; it certainly does not

amount to proof that minority voters in this case failed to

participate equally in the political processes. A district court's

findings under § 2 must rest on an "intensely local appraisal" of

the social and political climate of the cities and counties in

which such suits are brought, White, 412 U.S. at 769, not the sort

of generalized armchair speculation supplied by Dr. Brischetto. We

need evidence, not musings.

Plaintiffs also contend that minority citizens' lack of

financial resources makes it very difficult for minority-preferred

candidates to secure funds sufficient to run creditable county-wide

campaigns. Here again, the inference plaintiffs ask us to draw

might well be true in most cases; regardless of its general

validity, however, it is no substitute for proof that a minority

group's poverty has had the predicted effect in this particular

case. The evidence presented at trial simply does not show that

81

past discrimination has inhibited the ability of minorities to

participate in the process. In fact, the record discloses that

minority-preferred candidates frequently raised and spent more

money that their white opponents.

Witnesses Coronado and Fitch did testify that minority

candidates generally were unable to raise the money necessary to

run county-wide. When asked about the only district court campaign

in which he was personally involved, however, Coronado made no

mention of money problems. In fact, he testified that "[Judge

Gallardo] ran a very good campaign. I mean he was, he understood

the media, had people out working boxes, he had a lot of attorneys

of all ethnic groups working in his campaign, a broad base campaign

in the community." Similarly, Fitch asserted that black incumbents

had difficulty raising funds, but she attributed this difficulty to

"racial discrimination" and black candidates' "past record of

losing."

In contrast with the highly equivocal testimony of Fitch and

Coronado concerning their impressions of the barriers facing

minority candidates, nearly all such candidates who appeared at

trial reported that they had outspent their white opponents, often

by a very large amount. In Midland County, for example, Watson

testified that she outspent her white opponent in the general

election for Justice of the Peace by a factor of six. In Dallas

County, Joan Winn White, Tinsley, H. Ron White, and Oliver all

testified that they had run extensive, well-financed campaigns. In

particular, Oliver stated that he spent $300,000 in a losing

82

effort. The same was true of minority-preferred candidates in

Harris County. Lee testified that she outspent her white opponent

at a rate approaching twelve to one; Berry stated that the ratio in

his campaign for district court was even greater. Finally, Leal

testified that he raised $85,000 to $90,000 to his opponent's

$1,000. A district court's findings may only rest on the evidence

presented at trial. The record before us does not remotely suggest

that the visible scars of discrimination have left minority-

preferred candidates and their supporters within minority

communities without the funds needed to launch broad-based, county-

wide campaigns. In fact, the available evidence shows just the

opposite. For this reason, we must conclude that plaintiffs have

not established that the effects of past discrimination have

hindered their ability to participate in the political process.

V. Texas' Linkage Interest

This case involves 172 judicial districts that coincide with

nine Texas counties. Given the State of Texas' county-based system

of venue, this venerable structure links the jurisdictional and

electoral bases of the district courts. In doing so, the structure

advances the state's substantial interest in judicial

effectiveness. Trial judges are elected by a broad range of local

citizens, rather than by a narrow constituency. This electoral

scheme balances accountability and judicial independence.

As explained in detail below, the state's interest in

maintaining the structure of this single-member judicial office

must be weighed in the totality of circumstances to determine

83

whether a § 2 violation exists. The weight of a substantial state

interest, determined as a matter of law, is balanced against

localized evidence of racial vote dilution. This substantial state

interest may be overcome only by evidence that sums to substantial

proof of racial dilution. Otherwise, the at-large election of

district court judges does not violate § 2.

A. The Structure of Texas District Courts

The district courts are the primary trial courts in Texas.

District judges were first elected in 1850, five years after

statehood, and every state constitution since 1861 has provided for

their election by county residents. All voters of the entire

county elect all the district judges of their county. The

political boundaries of each county are the boundaries of the

jurisdiction and election base in all of the challenged counties.31

Many counties in Texas have more than one district judge. Even so,

trials are presided over by district judges acting alone. The only

collegial decision-making by district judges in counties with more

than one district judge is in the handling of some administrative

matters. In some of the counties involved here, district courts

are designated to specialize in civil, criminal, or family law

cases.

The electoral bases of district judges are linked to the area

over which they exercise primary jurisdiction. This linkage has

been in place throughout the 143 year history of judicial elections

31

One exception is the 72nd District, which encompasses both

Lubbock and Crosby Counties.

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in Texas. By making coterminous the electoral and jurisdictional

bases of trial courts, Texas advances the effectiveness of its

courts by balancing the virtues of accountability with the need for

independence. The state attempts to maintain the fact and

appearance of judicial fairness that are central to the judicial

task, in part, by insuring that judges remain accountable to the

range of people within their jurisdiction. A broad base diminishes

the semblance of bias and favoritism towards the parochial

interests of a narrow constituency. Appearances are critical,

because "the very perception of impropriety and unfairness

undermines the moral authority of the courts."

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