# League of United Latin American Citizens, Council No. 4434 v. Clements > Court of Appeals for the Fifth Circuit · August 25, 1993 · 999 F.2d 831 URL: https://www.frixlaw.com/law-library/cases/5858 ## Case - **Full name:** LEAGUE OF UNITED LATIN AMERICAN CITIZENS, COUNCIL NO. 4434, Plaintiffs-Appellees, and Jesse Oliver, Et Al., Intervening Plaintiffs-Appellees, v. William P. CLEMENTS, Etc., Et Al., Defendants; Jim MATTOX, Et Al., Defendants-Appellees-Appellants, v. 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 - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** August 25, 1993 - **Citations:** 999 F.2d 831; 1993 WL 319087 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Politz, King, Johnson, Garwood, Jolly, Higginbotham, Davis, Jones, Smith, Duhé, Wiener, Barksdale, Demoss - **Cited by:** 37 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5858 ## How later opinions describe it (automated extraction) - explaining that Baker means that in a suit challenging the constitutionality of a state statute, the attorney general does not possess exclusive authority to choose whether the state’s interests will be asserted on appeal and that another state official charged with the duty o… - finding judges who had intervened as defendants had Article III standing as voters affected by the challenged judicial election scheme to pursue the case independently on appeal - recognizing a State’s historic interest in having district judges remain accountable to all voters ## Opinion text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5858. Public record. Not legal advice.