Appendix — League of United Latin American Citizens v. Attorney General
Supreme Court brief1994
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93.4930." =a
IN THE
Supreme Court of the United; Spates cca |
OCTOBER TERM, 1993
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, HOUSTON
LAWYERS’ ASSOCIATION, JESSE OLIVER, et al.,
Petitioners,
We
ATTORNEY GENERAL OF TEXAS, et al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
APPENDIX TO THE PETITION
FOR A WRIT OF CERTIORARI
GABRIELLE K. McDONALD
Walker & Satterthwaite
7800 N. Mopac
Suite 215
Austin, Texas 78759
(512) 346-6801
ELAINE R. JONES
DIRECTOR-COUNSEL
_ THEODORE M. SHAW
NORMAN J. CHACHKIN
*CHARLES STEPHEN RALSTON
GAILON W. McGowen, JR.
NAACP LEGAL DEFENSE &
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EDUCATIONAL FuNnpD, INC.
99 Hudson Street
Sixteenth Floor
New York, N.Y. 10013
(212) 219-1900
SHERRILYN A. IFILL
University of Maryland
School of Law
500 W. Baltimore
Baltimore, MD 21201
(410) 706-8391
E. Brice CUNNINGHAM
777 S. R.L. Thornton Frwy
Suite 121
Dallas, TX 75203
(214) 428-3793
*Counsel of Record
WILLIAM L. GARRET1
BRENDA HULL THOMPSON
8300 Douglas, Suite 800
Dallas, TX 75225
(214) 369-1952
RoLANDO L. Rios
Milam Building, Suite 1024
115 E. Travis Street
San Antonio, TX 78205
(512) 222-2102
EDWARD B. CLouTMAN, III
Mullinax, Wells, Baab
& Cloutman, P.C.
3301 Elm St.
Dallas, TX 75226
(214) 939-9222
Attorneys for Petitioners
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
TABLE OF CONTENTS
FIFTH CIRCUIT COURT OF APPEALS’
OPINION UPON REHEARING EN BANC... la
FIFTH CIRCUIT COURT OF APPEALS’
es 203a
MEMORANDUM OPINION AND ORDER OF THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS,
MIDLAND-ODESSA DIVISION ........ 487a
NOTE: Various of the opinions below
cross-reference other opinions
by citing to pages in the
official reports. In this
Appendix, such references are
to pages in the Appendix and
are indicated by brackets, e.g.,
[214a].
[En Banc Decision of the Court of Appeals
August 23, 1993]
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS, |
COUNCIL NO. 4434, ET AL.
Plaintiffs-Appellees,
and
JESSE OLIVER, ET AL.,
Intervening Plaintiffs-Appellees,
Vv.
WILLIAM P. CLEMENTS, Etc.
Defendants,
JIM MATTOX, ET AL.,
Defendants-Appellees-Appellants,
Vv.
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.
United States Court of Appeals
Fifth Circuit
Aug. 23, 1993
2a
TABLE OF CONTENTS
Bb PE cvnsesecscienrcesseccetesteecees [4a]
See OU SD oS wows dn veaccvevsecees [9a]
A. The Authority of the Texas Attorney
ME iad Neeavkeeeas ceuaun [10a]
iy SD voce scceucecidcenns [17a]
Sy SE Sd bb ees ce vese ceeeean [18a]
GED Sevcessscceceusens [21a]
. Colpome © Bawands 2... cs cccccccces [25a]
PEF UTh se ccwanceeeenee 4x en's [28a]
> I a vanes cee weee eanewows [28a]
A. Whitcomb v. Chavis and White v. Regester [33a]
B. The 1982 Amendments .............. [40a]
C. Thormburg v. Gingles ... 2. cc cccccces [42a]
ye PU PE oc bce ese vend newness [50a]
De SO ED 6 Wit sviebsecseveees [54a]
IV. Other Legal Errors Affecting the Vote Dilution
a, By ry ee ee [59a]
A. Cohesiveness of Different Minority Groups [59a]
B. Relevance of Small Number of Minority
ATE See ee Tee TEE eee [62a]
C. Past Discrimination ........000000:: [64a]
V. Texas’ Linkage Interest ................. (69a]
A. The Structure of Texas District Courts ... [69a]
B. The Role of Function Under§2 ....... [70a]
C. Weight of State’s Interest Is Matter of Law [74a]
D. Determining the Weight of the Linkage
a en ee ee [76a]
E. Other Means to Accommodate the Linkage
PPP re TT TTT CETETETee [84a]
3a
VI. Application of Law to Each County ........ [86a]
A. Dallas COMMO) 2... ccccccccccceseces [87a]
BD. Hamels Cammy cn nce ccc ceccscces [94a]
©, TRE GI nw ccc cccceccesuves [103a]
DD. Timele COM wc cece cc ccccccces [107a]
B, Baer COM ow ccc cece cccccecees [111a]
Fe A ED occ scccececesecens [113a]
G. Midland County ...ccccccccccccens [116a]
HE. LeBbOGR COM onc iicccccvccceves [117a]
E BRP CO ccc ccvccccceneeuenan [119a]
VEE, QComstese®. occ vcwecesscescccveseveve's [120a]
Appeal From the United States District Court
for the Western District of Texas
Before POLITZ, Chief Judge, KING, JOHNSON,
GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, DUHE, 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
~ al
4a
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 Amendments in several Texas
counties.’ They sued the Governor of Texas,’ the Attorney
General, the Secretary of State, and the Chief Justice of the
Supreme Court as chair of the Judicial Districts Board.
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
‘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.
*Plaintiffs early in the case dismissed the Governor.
EEL
Sa
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 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.’
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
Attorney General filed a notice of appeal.‘ We stayed the
*This ruling was not appealed.
“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
(continued...)
6a
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 (Sth 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
(Sth Cir. 1990) ("LULAC II"). The en banc court held by a
7-6 vote that §2 of the Act did not 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. Jd. at __, 111
‘(...continued)
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.
7a
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." Jd. 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 (Sth Cir.
1993) (LULAC III). For a second 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, $8 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 Jawmakers 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
8a
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 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 defense
(caine Niet ii
9a
of the current system.’ 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.’ 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 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
*Judge Wood also filed a motion to strike the Attorney General’s
Notice of Action Toward Settlement, which we denied before oral
argument.
*We granted Chief Justice Phillips’ motion requesting that he be
allocated time at oral argument.
10a
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 (Sth
Cir. 1985) (en banc). Baker challenged Texas’ anti-sodomy
statute, suing Holt, the Dallas City Attorney, and Wade, the
Dailas 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:
[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
lla
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 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 (Sth
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. Jd. Indeed
the district court denied leave to intervene in this suit to
12a
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 (Sth 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 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.’
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
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 [11a], 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 Staie’s interests will be asserted on appeal? In Baker, we
answered in the negative.
13a
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 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 714.5 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." Jd. (Hecht, J.) (emphasis added).
"To hold that he 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
“Justice Gonzalez joined section II.A. of the plurality opinion
regarding the entry of redistricting relief.
l4a
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."
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).
eS
15a
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 of the attorney general to make
admissions on its behalf." United States v. Texas, 680 F.2d
356, 368 n.17 (Sth Cir. 1982).°
*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.
(continued...)
16a
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.” This is not to say that the Chief Justice is the
sole arbiter. Both he and the Attorney General are named
9(...continued)
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, 1380 (Ill. App. 1980).
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 LJ. 1073, 1079 (1984).
17a
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 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 (Sth
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.
18a
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 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."
They have intervened in their personal capacities and have
elected to obtain their own counsel.” As we earlier
"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 (Sth 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.
"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
(continued...)
19a
observed, the proposed consent decree 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.” 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 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
'2(...continued)
because of his office as judge if the judge requests the
attorney general's assistance in the defense of the suit.
(emphasis added).
"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 (Sth Cir. 1977). There is obviously no such limitation on the
intervenors’ right to appeal in this case.
20a
Products Corp., 582 F.2d 891, 896 (Sth 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 (Sth 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 (Sth 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 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
21a
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 foreclosed by the many cases in
which individual voters have been permitted to challenge
election practices." Jd. 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 (Sth Cir. 1982) (en banc); Henderson v. Fort Worth
Independent School Dist., 526 F.2d 286, 288-90 (Sth Cir.
1976)."*
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
“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.
22a
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 (Sth
Cir. 1978) (quoting 1B James W. Moore et al., Moore's
Federal Practice 1 0.409[5]). Courts must exercise equitable
discretion before accepting litigants’ invitation to perform
the judicial act.
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 (Sth 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 (Sth Cir. 1984); Williams
v. City of New Orleans, 729 F.2d 1554, 1559 (Sth 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
a ee
question to the litigants’ will. As Justice Harlan wrote,
"parties cannot, by giving each other consideration, purchase
from a court of equity a continuing injunction." System
Federation No. 91, Ry. Employees’ Dep’t, AFL-CIO v. Wright,
364 U.S. 642, 651 (1961).
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 (Sth Cir. 1984). In that case, plaintiffs and the city
attorney, acting for the city 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.
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.
24a
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. Jd. 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 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
25a
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
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 (Sth 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
26a
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.”
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."
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. Because the state wished to
‘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.2¢ $01, 503 (7th Cir. 1991) (recounting procedural history). In
spite wt i label, the Attorney General’s motion is far from being a
joint motion.
“Asi. 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.
"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
(continued...)
27a
create the Orleans district without upsetting the terms of the
sitting justices, Louisiana had to temporarily expand the
supreme court to eight members.”
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. § 13:101.1 (West Supp.
1993).
The Texas Legislature refused to take positive action,
and the settlement agreement attempts to avoid
constitutional requirements. The Texas Constitution
'*(...continued)
judgment. The term of a supreme court judge shall be ten
years.
"*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.
28a
requires that judges be elected from districts no smaller than
a county, absent a majority vote by the citizens of that
county. Tex. Const. Art. 5, §§ 7, 7a(i).” 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.
III. Racial Bloc Voting
As amended, § 2 of the Voting Rights Act prohibits
states from imposing or applying any "standard, practice, or
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.
ere
29a
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.“ 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 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 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.
30a
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 (Sth 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 are guided in this second inquiry by the so-called
Zimmer factors listed in the Senate Report.”
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
(continued...)
3la
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 (Sth 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
#(...continued)
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.
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 (Sth 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.
32a
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 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
33a
minorities to play 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 (Sth 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).
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
34a
U.S. at 132,” 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, the
Court reasoned that "had the Democrats won all of the
elections or even most of them, the ghetto would have no
justifiable complaints about representation." Jd. 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." Jd. 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
®See also Chavis v. Whitcomb, 305 F. Supp. 1364, 1376-81 (S.D.
Ind. 1969).
“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.
35a
"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." Jd. at 156.
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 defi ats were shared equally among
all members of the Democratic Party.
The Court confronted very different circumstances
36a
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.” Jd. 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.
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." Jd. 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. Jd. at 766-67. The DCRG failed te
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. Jd 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." Jd. (quoting Graves v.
Barnes, 343 F. Supp. 704, 726 (W.D. Tex. 1972)).
37a
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 ’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.” Jd. 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. Jd. 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 Méexican-
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.
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
38a
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
(Sth 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 Repubiican 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.
Id. at 109 (Marshall, J., dissenting) (citations omitted).
Justice Marshall’s references to the "lack of success
at the poils” 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
39a
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 balm for racial minorities, not political
ones--even though the two often coincide." Baird vy.
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.
40a
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 defined in large part by the wrongs they
prohibit. See, eg., 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
4la
their party suffered electoral defeat; they were able to elect
representatives of their choice when their party prevailed.
Not surprisingly, the Senate 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." Jd. 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, "snakes no assumptions one way or the
other about the role of racial political considerations in a
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
42a
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
Thomburg 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. Thomburg v. Gingles
Justice Brennan’s discussion of the first and second
Gingles factors received majority support. Gingles, 478 U.S.
at 50-51, 56.~ With respect to the third element, however,
five justices rejected Justice Brennan’s proposed standard for
proving racial bloc voting. Jd. 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
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.
< Pe ee eee ee Se eS
nce
43a
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 "[iJt is the difference between the choices made by blacks
and whites--not the reasons for that difference--that
[matters]." Jd. A consideration of “irrelevant variables" such
as partisan affiliation or the race of the candidate, Justice
Brennan urged, would “distort[] the equation and yield[]
results that are indisputably incorrect under § 2 and the
Senate Report." Jd. 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
44a
against racial discrimination. 1 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
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 these
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
45a
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 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
46a
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 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." Jd. 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].” Jd. 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
47a
to the interests of minorities, one of the factors considered
as part of the "totality of circumstances." As Justice Brennan
indicated, "[njot only does ‘[vjoting along racial lines’
deprive minority voters of their preferred representatives in
these 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 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
48a
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." Jd.
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, Dernocracy 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 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.
*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
(continued...)
49a
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
*(...continued)
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 thai 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 [159].
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 [155]. 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.
50a
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 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
Sla
"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 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
52a
was motivated by racial animus would make racial bioc
voting both 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.” 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.
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
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.
53a
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 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
54a
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 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.”
E. Two Objections
*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.
55a
The Houston Lawyers’ Association and amicus the
United States raise two particular objections that merit
additional 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 réads 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 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
56a
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 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." Jd. 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
57a
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 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,
58a
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 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 in both of these inquiries.
In so doing, it would permit liability to attach, in direct
conflict with the Senate Report, upon "the mere existence of
underrepresentation plus a history of dual schools." S. Rep.
417 at 34, reprinted in 1982 U.S. Code Cong. & Admin News
at 212. Electoral losses that are attributable to partisan
politics do not implicate the protections of § 2.
59a
IV. Other Legal Errors Affecting the Vote Dilution
Inquiry ;
Defendants cite three additional legal errors that
allegedly infect the district court’s findings of illegal vote
dilution in each of the counties. Specifically, they argue that
the district court erred in: (1) excluding elections pitting
Hispanic candidates against white candidates in counties in
which the evidence unmistakably showed that black and
Hispanic voters were cohesive; (2) refusing to consider the
paucity of minority lawyers in assessing the extent to which
members of minority groups had been elected to the district
court; and (3) finding that the effects of past discrimination
hindered the ability of minority groups to participate in the
political process despite the presence of little or no evidence
suggesting that their participation was in fact depressed. We
examine these issues in turn.
A. Cohesiveness of Different Minority Groups
The importance of the distinction in §2
jurisprudence between illegal vote dilution and political
defeat, between protecting racial minorities and fostering the
work of political coalitions, raises the stakes for the
question whether different racial or ethnic minority groups,
usually blacks and Hispanics, may combine to form a single
minority group within the meaning of the Voting Rights Act.
Judges and commentators alike have questioned whether
transitory unions rooted in political expedience may be
properly equated with those whose source lies in the more
enduring bonds supplied by a shared race or ethnicity.
League of United Latin American Citizens v. Midland Indep.
School District, 812 F.2d 1494, 1505-07 (Sth Cir. 1987)
(Higginbotham, J., dissenting); Katherine I. Butler &
Richard Murray, Minority Vote Dilution Suits and the
Problem of Two Minority Groups: Can a ’Rainbow Coalition’
Claim the Protection of the Voting Rights Act?, 21 Pacific L.J.
619, 641-57 (1990). Nevertheless, we have treated the issue
as a question of fact, allowing aggregation of different
minority groups where the evidence suggests that they are
politically cohesive, see, e.g., Midland I.$.D., 812 F.2d at
60a
1500-02, and we need not revisit this question here.
This issue is raised today in the context of the
particular elections to which the district court looked as part
of its inquiry into racial bloc voting. This court has
consistently held that elections between white candidates are
generally less probative in examining the success of minority-
preferred candidates, generally on grounds that such
elections do not provide minority voters with the choice of
a minority candidate. See, e.g., Campos v. City of Baytown,
840 F.2d 1240, 1245 (Sth Cir. 1988); Citizens for a Better
Gretna v. City of Gretna, 834 F.2d 496, 503 (Sth Cir. 1987).
For this reason, courts usually focus on those elections
involving black or Hispanic candidates in examining whether
black or Hispanic voters enjoy an equal opportunity to elect
representatives of their choice. Where blacks and Hispanics
are cohesive, we have held that the relevant elections are
those including either Hispanic or black candidates. See, e.g.,
Baytown, 840 F.2d at 1245. Defendants contend that the
district court erred in refusing to consider elections pitting
Hispanic and white candidates in Harris and Tarrant
Counties, counties in which plaintiffs proceed on behalf of
black voters only, but where the evidence indisputably
showed that blacks and Hispanics were politically cohesive.
In light of our precedents, we must agree.
Blacks and Hispanics have joined forces for purposes
of this suit in Midland, Lubbock, and Ector Counties. In
these counties, white-Hispanic elections are relevant in
proving legally significant white bloc voting, for the Hispanic
candidate provides the combined Hispanic-black minority
with a viable minority choice. But plaintiffs contend that
where they represent only black voters, white-Hispanic
elections in which the Hispanic candidate received the
support of black voters are irrelevant. A difference in
litigation strategy cannot support this distinction. Cohesion
is a fact, not a strategic card to be played at the caprice of
a plaintiff. As we stated in Campos, "if the statistical
evidence is that Blacks and Hispanics together vote for the
Black or Hispanic candidate, then cohesion is shown." Jd. at
6la
1245 (footnote omitted). If blacks and Hispanics vote
cohesively, they are legally a single minority group, and
elections with a candidate from this single minority group
are elections with a viable minority candidate.
Plaintiffs next argue that there is evidence in the
record that blacks and Hispanics are not politically cohesive
in Harris and Tarrant Counties. They do not tell us to
which evidence they refer, and understandably so. The
record shows that blacks and Hispanics were more cohesive
in Harris and Tarrant Counties than in Midland and Ector
Counties, counties in which plaintiffs represent both blacks
and Hispanics and the district court found cohesion.
In Harris County, Taebel studied 45 elections in
which he determined the percentage of black and Hispanic
votes cast for the minorityAwinning candidate. In 35
elections the black and Hispanic vote percentages varied by
less than 10%. Similarly, the levels of black and Hispanic
support for the same candidate were within ten percentage
points in 13 of the 17 elections studied in Tarrant County.
In Midland County, by contrast, the black and Hispanic
voting percentages differed by less than 10% in only 4 of the
8 elections analyzed; in Ector County, this close correlation
between the preferences of Hispanic and black voters was
shown in just 2 of 10 elections. Under the present law of
this circuit, there is no error in the district court’s findings
of cohesion in Midland, Ector, and Lubbock Counties,
because in those counties a significant number of blacks and
Hispanics usually voted for the same candidates. Gingles,
478 U.S. at 56. But this standard also compels the
conclusion that there is also black-Hispanic cohesion in
Harris and Tarrant Counties. The district court thus clearly
erred in ignoring elections involving Hispanic and white
candidates in these counties.”
The dissent points out that defendants did not ask the trial court
to make a specific finding that black and Hispanic voters were
(continued...)
62a
B. Relevance of Small Number of Minority Lawyers
The absence of minority office holders is typically an
important consideration in dilution cases. In this litigation,
the small number of minority judges in the target counties
has been the cornerstone of the plaintiffs’ proof.
The office of district judge has more eligibility
requirements than the age and citizenship prerequisites of
many public offices. A person must be a licensed attorney
in the state of Texas for four years, and a resident of the
district for two years, before becoming eligible for the post.
The need for district judges to be experienced lawyers is
obvious.
Undisputed evidence shows that in all of the counties,
the percentage of minority lawyers was much smaller than
the percentage of minority voters. In fact, minority lawyers
disproportionately serve as judges, when their percentage
among all eligible lawyers is considered. It is true that we
have refused "to preclude vote dilution claims where few or
no [minority] candidates have sought offices in the
challenged electoral system." Westwego Citizens for Better
Gov't v. City of Westwego, 872 F.2d 1201, 1208 n.9 (Sth Cir.
1989) (Westwego I). That holding is a far cry from the
conclusion that the number of minority candidates eligible to
run has no relevance. Section 2 and the Senate Report
instruct us to consider the number of minority candidates
elected to office. At the same time, we are instructed to
evaluate the totality of the circumstances with a "’functional’
view of the political process." Gingles, 478 U.S. at 45, 106 S.
79(...continued)
politically cohesive in Harris and Tarrant Counties. This observation,
while correct, is beside the point, for that is not the claim they raise
on appeal. Rather, defendants argue that the district court
improperly refused to consider elections involving Hispanic
candidates studied by Dr. Taebel, their expert. This question is most
assuredly before us and, given the overwhelming evidence of
cohesiveness among black and Hispanic voters in Harris and Tarrant
Counties, is susceptible to only one answer.
saeeeeneeenrae tems saraaaaassianaeaaearrearmaiiememmiial
63a
Ct. at 2764. The cold reality is that few minority citizens can
run for and be elected to judicial office. A functional
analysis of the electoral system must recognize the impact of
limited pools of eligible candidates on the number of
minority judges that has resulted. See Southern Christian
Leadership Conf. of Ala. v. Evans, 785 F. Supp. 1469, 1476-77
(M.D. Ala. 1992).
The record discloses that at times during the 1980’s,
the percentage of minority judges in five targeted counties
exceeded the percentage of minority lawyers who were
eligible to run for district judge. The following table
summarizes the evidence.
Table IV.B
Minority Judges as Minority Lawyers as Minority Voters
%oage of District Yoage of Eligible as Yoage of Voting
County Judges, 1988 Lawyers, 1989 Age Population
Dallas 8.3 1.0 16.0 (black)
Harris 5.1 3.8 18.2 (black)
Tarrant 13.0 2.4 10.4 (black)
Bexar 26.3 11.4 41.4 (Hispanic)
Travis 7.7 2.7 14.4 (Hispanic)
Jefferson 0.0 3.1 24.6 (black)
Lubbock 0.0 5.1 21.6 (both)
Midland 0.0 3.2 19.7 (both)
Ector 0.0 4.0 21.9 (both)
In counties with no minority judges, the number of eligible
candidates was very small. In Ector County, for example,
one survey found five eligible Hispanic lawyers and only one
eligible black lawyer. Apparently none of Lubbock County’s
499 lawyers in 1989 was a black attorney eligible for a
district judgeship, although the State Bar reported two black
lawyers in the county.
The absence of eligible candidates goes a long way in
explaining the absence of minority judges. Plaintiffs cannot
emphasize the scarcity of successful minority candidates to
support the inference of dilution and simultaneously urge
that the number of minorities eligible to run is not relevant.
64a
Plaintiffs argue that this factor may not be considered
because the limited number of minority lawyers was caused
by state discrimination in education. We are not persuaded
this argument merits exclusion of the evidence. The Voting
Rights Act responds to practices that impact voting; it is not
a panacea addressing social deficiencies. See Presley v.
Etowah County Comm’n, __ U.S. ___, __, 112 S. Ct. 820,
832 (1992).
C. Past Discrimination
The district court also found that Texas’ history of
discrimination "touched many aspects of the lives of
minorities in the Counties in question including their access
to and participation in the democratic system governing this
State and their socio-economic status."” The district court,
however, did not refer to specific facts in the record to
support this conclusion. Instead, the court cited a 1980 Civil
Rights Commission Report describing civil rights
developments in Texas during the years 1968-1978 and a
1981 district court opinion detailing race relations between
minority and white residents of one of Texas’ smaller cities
during the 1960’s and 1970’s.
Texas’ long history of discrimination against its black
and Hispanic citizens in all areas of public life is not the
*Two separate Zimmer factors guided the court’s inquiry:
1. the extent of any history of official discrimination
in the state or political subdivision that touched the
right of the members of the minority group to
register, to vote, or otherwise to participate in the
democratic process;
5. the extent to which members of the minority
group in the state or political subdivision bear the
effects of discrimination in such areas as education,
employment and health, which hinder their ability to
participate effectively in the political process;
S. Rep. 417 at 28-29, reprinted in 1982 U.S. Code Cong. & Admin.
News at 206.
65a
subject of dispute among the parties. Nor has anyone
questioned plaintiffs’ assertion that disparities between white
and minority residents in several socioeconomic categories
are the tragic legacies of the State’s discriminatory practices.
Defendants do argue, however, that these factors, by
themselves, are insufficient to support the district court’s
"finding" that minorities do not enjoy equé access to the
political process absent some indication that these effects of
past discrimination actually hamper the ability of minorities
to participate. We again agree.
It would seem tautological that a factor directing
courts to determine whether past discrimination hinders a
minority group’s access to the political process would require
a showing that the group does not in fact participate to the
same extent as other citizens. Nevertheless, prior to the
amendments to § 2, this court held that evidence of
decreased participation among minorities was unnecessary
on grounds that "[i]nequality of access is an inference which
flows from the existence of economic and educational
inequalities." Kirksey v. Board of Supervisors, 554 F.2d 139,
145 (Sth Cir. 1977) (en banc). This standard, however, was
challenged by some of our later cases, see, e.g., McIntosh Cty.
NAACP v. City of Darien, 605 F.2d 753, 759 (Sth Cir. 1979),
and was decisively rejected by Congress in 1982. As the
Senate Report stated:
The courts have recognized that disproportionate
educational, employment, income level and living
conditions arising from past discrimination tend to
depress minority political participation. Where these
conditions are shown, and where the level of black
participation in politics is depressed, plaintiffs need not
prove any further causal nexus between their
disparate socio-economic status and the depressed
level of political participation.
S. Rep. 417 at 29 n.114 (emphasis added), reprinted in 1982
U.S. Code Cong. & Admin. News at 207 n.114. As this
statement discloses, the Senate Report, while not insisting
upon a causal nexus between socioeconomic status and
66a
depressed participation, clearly did not dispense with proof
that participation in the political process is in fact depressed
among minority citizens. In apparently holding that
socioeconomic disparities and a history of discrimination,
without more, sufficed to establish these Zimmer factors, the
district court employed the wrong legal standard.
Nor do we believe that the record before us can
support such a finding under the proper test. Plaintiffs have
offered no evidence of reduced levels of black voter
registration, lower turnout among black voters, or any other
factor tending to show that past discrimination has affected
their ability to participate in the political process. While
there are indications that Hispanic citizens register to vote
at a lower rate than white and black citizens, this data
provides support for such a finding in only Bexar and Travis
Counties, where plaintiffs proceed on behalf of Hispanic
voters only.
Plaintiffs contend that the district court could have
relied on the opinion offered by Dr. Brischetto, who, during
his testimony regarding Bexar County, stated:
Well, certainly having less of these socioeconomic
resources or characteristics to draw on, we find that
minority voters will participate less in the electoral
system. Education is an important resource. For
example, it enables people to feel like they are more
a part of and take part in the election system to a
greater extent. Lacking that they participate less. So
it is important, it has an effect certainly on their
participation when they are subordinate status in the
stratification system.
Brischetto’s statement, as its tone suggests, was not so much
a finding as a prediction or hypothesis about what one might
expect to find among minorities who still bore the scars of
past discrimination. It is for this reason that he could claim
that his testimony regarding the participation of Hispanics
in Bexar applied with equal force to all of the other
counties. In fact, the nature and basis of his opinion became
explicit as the testimony shifted to these other locales. In
i ai
67a
Travis County, for example, he stated only that "stratification
. » « May very well also be an indication of the fact that
Hispanics are less likely to participate fully and effectively in
the electoral system in Travis County." In Lubbock,
Brischetto stated only that "I think [such stratification] is an
indication that minorities are less equipped with those
resources that they need to participate fully in the political
system." Finally, he testified in the context of Tarrant County
that socioeconomic differences "indicate[{] that minorities
may have a diminished ability to participate fully in the
electoral system because of their lower status and
stratification that exists in that community."
Brischetto’s testimony thus provides support for the
common sense proposition that depressed political
participation typically accompanies poverty and a lack of
education; it certainly does not amount to proof that
minority voters in this case failed to participate equally in the
political processes. A district court’s findings under § 2 must
rest on an “intensely local appraisal" of the social and
political climate of the cities and counties in which such suits
are brought, White, 412 U.S. at 769, not the sort of
generalized armchair speculation supplied by Dr. Brischetto.
We need evidence, not musings.
Plaintiffs also contend that minority citizens’ lack of
financial resources makes it very difficult for minority-
preferred candidates to secure funds sufficient to run
creditable county-wide campaigns. Here again, the inference
plaintiffs ask us to draw might well be true in most cases;
regardless of its general validity, however, it is no substitute
for proof that a minority group’s poverty has had the
predicted effect in this particular case. The evidence
presented at trial simply does not show that past
discrimination has inhibited the ability of minorities to
participate in the process. In fact, the record discloses that
minority-preferred candidates frequently raised and spent
more money that their white opponents.
Witnesses Coronado and Fitch did testify that
minority candidates generally were unable to raise the
cece
68a
money necessary to run county-wide. When asked about the
only district court campaign in which he was personally
involved, however, Coronado made no mention of money
problems. In fact, he testified that "[Judge Gallardo] ran a
very good campaign. I mean he was, he understood the
media, had people out working boxes, he had a lot of
attorneys of all ethnic groups working in his campaign, a
broad base campaign in the community." Similarly, Fitch
asserted that black incumbents had difficulty raising funds,
. but she attributed this difficulty to "racial discrimination" and
black candidates’ "past record of losing."
In contrast with the highly equivocal testimony of
Fitch and Coronado concerning their impressions of the
barriers facing minority candidates, nearly all such
candidates who appeared at trial reported that they had
outspent their white opponents, often by a very large
amount. In Midland County, for example, Watson testified
that she outspent her white opponent in the general election
for Justice of the Peace by a factor of six. In Dallas County,
Joan Winn White, Tinsley, H. Ron White, and Oliver all
testified that they had run extensive, well-financed
campaigns. In particular, Oliver stated that he spent
$300,000 in a losing effort. The same was true of minority-
preferred candidates in Harris County. Lee testified that
she outspent her white opponent at a rate approaching
twelve to one; Berry stated that the ratio in his campaign for
district court was even greater. Finally, Leal testified that he
raised $85,000 to $90,000 to his opponent’s $1,000. A
district court’s findings may only rest on the evidence
presented at trial. The record before us does not remotely
suggest that the visible scars of discrimination have left
minority-preferred candidates and their supporters within
minority communities without the funds needed to launch
broad-based, county-wide campaigns. In fact, the available
evidence shows just the opposite. For this reason, we must
conclude that plaintiffs have not established that the effects
of past discrimination have hindered their ability to
participate in the political process.
69a
V. Texas’ Linkage Interest
This case involves 172 judicial districts that coincide
with nine Texas counties. Given the State of Texas’ county-
based system of venue, this venerable structure links the
jurisdictional and electoral bases of the district courts. In
doing so, the structure advances the state’s substantial
interest in judicial effectiveness. Trial judges are elected by
a broad range of local citizens, rather than by a narrow
constituency. This electoral scheme balances accountability
and judicial independence.
As explained in detail below, the state’s interest in
maintaining the structure of this single-member judicial
office must be weighed in the totality of circumstances to
determine whether a § 2 violation exists. The weight of a
substantial state interest, determined as a matter of law, is
balanced against localized evidence of racial vote dilution.
This substantial state interest may be overcome only by
evidence that sums to substantial proof of racial dilution.
Otherwise, the at-large election of district court judges does
not violate § 2.
A. The Structure of Texas District Courts
The district courts are the primary trial courts in
Texas. District judges were first elected in 1850, five years
after statehood, and every state constitution since 1861 has
provided for their election by county residents. All voters of
the entire county elect all the district judges of their county.
The political boundaries of each county are the boundaries
of the jurisdiction and election base in all of the challenged
counties." Many counties in Texas have more than one
district judge. Even so, trials are presided over by district
judges acting alone. The only collegial decision-making by
district judges in counties with more than one district judge
is in the handling of some administrative matters. In some
of the counties involved here, district courts are designated
"One exception is the 72nd District, which encompasses both
Lubbock and Crosby Counties.
70a
to specialize in civil, criminal, or family law cases.
The electoral bases of district judges are linked to the
area over which they exercise primary jurisdiction. This
linkage has been in place throughout the 143 year history of
judicial elections in Texas. By making coterminous the
electoral and jurisdictional bases of trial courts, Texas
advances the effectiveness of its courts by balancing the
virtues of accountability with the need for independence.
The state attempts to maintain the fact and appearance of
judicial fairness that are central to the judicial task, in part,
by insuring that judges remain accountable to the range of
people within their jurisdiction. A broad base diminishes
the semblance of bias and favoritism towards the parochial
interests of a narrow constituency. Appearances are critical,
because "the very perception of impropriety and unfairness
undermines the moral authority of the courts." John L. Hill,
Jr., Taking Texas Judges Out of Politics: An Argument for
Merit Election, 40 Baylor L. Rev. 339, 364 (1988). The fear
of mixing ward politics and state trial courts of general
jurisdiction is widely held. It is not surprising then that
States that elect trial judges overwhelmingly share this
structure and electoral scheme. See infra note 30. The
systemic incentives of subdistricting are those of ward
politics, and would "diminish the appearance if not fact of its
judicial independence--a core element of a judicial office."
LULAC II, 914 F.2d at 650 (Higginbotham, J., concurring).
B. The Role of Function Under § 2
In Houston Lawyers’ Association v. Attorney General,
US. , 111 S.Ct. 2376 (1991), the Supreme Court agreed
that the interests behind the existing court structure must be
considered.
[W]e believe that the State’s interest in maintaining
an electoral system--in this case, Texas’ interest in
maintaining the link between a district judge’s
jurisdiction and the area of residency of his or her
voters--is a legitimate factor to be considered by
courts among the "totality of circumstances" in
determining whether a § 2 violation has occurred. A
Tila
State’s justification for its electoral system is a proper
factor for the courts to assess in a racial vote dilution
inquiry . . . . Because the State’s interest in
maintaining an at-large, district-wide electoral
scheme for single-member offices is merely one
factor to be considered in evaluating the "totality of
circumstances," that interest does not automatically,
and in every case, outweigh proof of racial vote
dilution.
__, 111 S. Ct. at 2381.
Justice Stevens noted that Texas’ interest in linking
electoral and jurisdictional bases is "a legitimate factor to be
considered by courts among the ’totality of circumstances’ in
determining whether a § 2 violation has occurred." Jd. The
Court was not persuaded that this "linkage" interest should
defeat liability "automatically, and in every case." Rather,
Houston Lawyers’ held that the interest must be weighed
against other relevant factors to ascertain whether the
interest "outweigh{s] proof of racial vote dilution." Id. See
also Nipper v. Chiles, 795 F. Supp. 1525, 1548 (M.D. Fla.
1992) (holding that "a state’s interest in maintaining an
electoral system is a legitimate factor to be considered ... in
the liability phase of a section two case").
An examination of Houston Lawyers’ further
illuminates why the state interests behind an office’s
structure and function must be weighed. The Court held
that single-member office elections are within the scope of
§ 2. Houston Lawyers’, _ U.S. at __, 111 S. Ct. at 2380.
This holding reached beyond judicial elections. "[T]he
coverage of the Act encompasses the election of executive
officers and trial judges whose responsibilities are exercised
independently in an area coextensive with the districts from
which they are elected." Jd. (emphasis added). It appears
from this language that an office such as mayor or sheriff is
subject to § 2 scrutiny, requiring an analysis of the totality of
circumstances to determine whether illegal vote dilution
exists. While that analysis is not precluded, it must take into
account the state interests that are furthered by the structure
Id. at
72a
and function of such single-member offices. Surely by
enacting the Voting Rights Act, Congress did not
contemplate that the office of mayor in a city would have to
be dismantled because its single-member office nature
submerged minority voters in the community of voters as a
whole, without regard for the interests in preserving that
office. Cf Butts v. City of New York, 779 F.2d 141 (2d Cir.
1985) (holding that primary runoffs for single-member
offices of mayor, city council president, and city comptroller
do not violate § 2).
Therefore, while the Supreme Court rejected the
contention that the linkage interest in all cases defeated
liability under § 2, the Court endorsed the position that the
-linkage interest is relevant to a determination of liability.
Indeed, by noting that the linkage interest does not
"automatically, and in every case, outweigh proof of racial
vote dilution,” the Court held that the state interest could
outweigh what would otherwise be proof of illegal dilution
and thus foreclose liability. As one commentator has noted:
the Court recognized that in balancing the many
factors in the totality of the circumstances test, the
State interest in district wide judicial elections may, in
some cases, outweigh proof of racial voter dilution.
Mary T. Wickham, Note, Mapping the Morass: Application
of Section 2 of the Voting Rights Act to Judicial Elections, 33
Wm. & Mary L. Rev. 1251, 1285 (1992).
The issue we face is determining when the linkage
interest will outweigh other factors and defeat liability under
§ 2. In resolving this issue, we reject the polar extremes of
the parties. The State of Texas maintains that the linkage
interest must defeat liability in every case, regardless of the
other circumstances in the totality. The Supreme Court
rejected this position when it held that the linkage interest
does not "automatically, and in every case, outweigh proof
of racial vote dilution." Houston Lawyers’, _-:;U.S. at __,
111 S. Ct. at 2381.
We also reject the position of plaintiffs that the
linkage interest can never defeat liability under the totality
Ninos oiesperietineee eernetntneanestenaaaeainaameatiaiennania iil
73a
of circumstances if "illegal" dilution is otherwise established.
The plaintiffs maintain that only the absence of a compelling
state interest in an electoral scheme is relevant to liability,
and that such an absence "is an optional factor" that
plaintiffs can use to support a finding of illegal dilution.
They contend, however, that the existence of a compelling
interest can never defeat liability that is otherwise established
under the totality of the circumstances. This position is
foreclosed by the Supreme Court, which directed that this
state interest is to be weighed as part of the totality of the
circumstances. Id.
Citing Jones v. City of Lubbock, 727 F.2d 364, 383
(Sth Cir. 1984), and United States v. Marengo County
Comm'n, 731 F.2d 1546, 1571 (11th Cir. 1984), plaintiffs
urge that the Zimmer factor of a non-tenuous state policy is
among the least important of the factors for determining
dilution. These decisions state only that defendants cannot
defeat liability by using the non-tenuous policy justification
of an electoral scheme to prove that scheme "does not have
a discriminatory intent." Marengo County, 731 F.2d at 1571.
See also Terrazas v. Clements, 581 F. Supp. 1319, 1345 n.24
(N.D. Tex. 1983) (three-judge panel) ("In the case of
tenuousness, the lesser weight is consistent with the change
in emphasis from intent to results. The principal probative
weight of a tenuous state policy is its propensity to show
pretext."). ;
The plaintiffs’ argument misses the point. The State
of Texas has done more than assert that its interest in this
electoral scheme is not tenuous--that is, not a pretext
masking discriminatory intent in the adoption or
maintenance of the scheme. The interest in linking electoral
to jurisdictional base takes on additional and distinct
relevance because it advances objectively substantive goals.
The inquiry into whether an interest is substantial goes
beyond inquiring whether the interest is non-tenuous. A
substantial state interest must be more than racially-neutral.
Thus, the linkage interest is not examined just because it
proves that the state’s practice is premised on a racially-
74a
neutral policy and is consistently applied. Cf S. Rep. 417 at
29 n.117, reprinted in 1982 U.S. Code Cong. & Admin. News
at 207 n.117.
Proof of a merely non-tenuous state interest
discounts one Zimmer factor, but cannot defeat liability. It
does not follow, however, that proof of a substantial state
interest cannot defeat liability. The totality of circumstances
inquiry that occurs after a showing of the Gingles
prerequisites is not limited to factors listed in the legislative
history of the Voting Rights Act. Gingles, 478 U.S. at 45,
106 S. Ct. at 2763; Westwego Citizens for Better Gov't v. City
of Westwego, 946 F.2d 1109, 1120 (Sth Cir. 1991) (Westwego
IIT). The weight, as well as tenuousness, of the state’s
interest is a legitimate factor in analyzing the totality of
circumstances. As we have explained, the Voting Rights Act
largely codifies Fourteenth Amendment jurisprudence
embodied in White v. Regester, 412 U.S. 755, 93 S. Ct. 2332,
37 L. Ed. 2d 314 (1973). See Jones, 727 F.2d at 379-80. The
substantiality of the state’s interest has long been the
centerpiece of the inquiry into the interpretation of the Civil
War Amendments and their interplay with the civil rights
Statutes.
Having rejected the proffered extremes--that the
linkage interest either always or never defeats § 2 liability--
we turn to when the linkage interest precludes a § 2
violation. This question depends upon the weight of the
interest.
C. Weight of State’s Interest Is Matter of Law
The plaintiffs urge that the weight or substantiality of
Texas’ linkage interest is an issue of fact for the district
court to decide in the first instance, reviewable only for clear
error. We disagree. Deciding whether the adoption or
maintenance of a system is a pretext for racial discrimination
75a
may present a question of fact. This question can turn on
credibility, an issue best determined by a fact finder. The
issue of substantiality, however, is distinct from the
conventional Zimmer factor of tenuousness and is a legal
determination.
The Supreme Court has held that the finding of
dilution is a factual matter reviewable only for clear error.
Gingles, 478 U.S. at 78, 106 S. Ct. at 2780-81. A substantial
state interest is not inherently preclusive of dilution and is
not raised to disprove the existence of dilution. Rather, the
state’s interest is weighed against proven dilution to assess
whether such dilution creates § 2 liability. Houston Lawyers’,
___ US. at __, 111 S. Ct. at 2381 (weighing of linkage
interest on remand goes to determination of whether
interests “outweigh proof of racial vote dilution").
Determining the substantiality of Texas’ linkage
interest under the Voting Rights Act, a statute enacted to
enforce the guarantees of the Civil War Amendments, is
analogous to weighing the asserted state interest in
constitutional law contexts. With issues of substantive due
process, equal protection, and the First Amendment, the
weight of a state’s interest has always been a legal question,
not a factual one. For example, in Posadas de Puerto Rico
Ass’n v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341, 106
S. Ct. 2968, 2977, 92 L. Ed. 2d 266 (1986), the Court had
"no difficulty in concluding that the Puerto Rico
Legislature’s interests in the health, safety, and welfare of its
citizens constitutes a ‘substantial’ governmental interest." In
reaching this conclusion, the Court itself determined the
weight of the state interest. See also City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249 (1985)
(weighing state’s interest de novo). We hold that the
We do not decide this issue. Some appellate court decisions
appear to have reviewed the tenuousness of state interests without
deference to the underlying district court determinations. See, ¢.g.,
Zimmer, 485 F.2d at 1307.
76a
substantiality of Texas’ interest under § 2 is a question of
law for this court to determine de novo and not a question
of fact that somehow will be described on a county-by-
county basis.
D. Determining the Weight of the Linkage Interest
The weight of Texas’ interest is virtually assigned by
a Supreme Court decision handed down on the same day as
Houston Lawyers’. In Gregory v. Ashcroft, __ U.S. __, 111
S. Ct. 2395, 2404, 115 L. Ed. 2d 410 (1991), the Supreme
Court held that the Age Discrimination in Employment Act
does not apply to judicial offices in Missouri. The plaintiffs
had used ADEA to challenge a mandatory retirement age
for state judges. The Court noted that "the authority of the
people of the States to determine the qualifications of their
most important government officials . . . lies at the heart of
representative government." Jd. at___, 111 S. Ct. at 2402
(internal quotation omitted). Gregory noted that "the States’
power to define the qualifications of their office-holders has
force even as against the proscriptions of the Fourteenth
Amendment." Jd. at__, 111 S. Ct. at 2405. To protect this
power to define the judicial office, Gregory required a clear
statement from Congress for an override of qualifications
imposed by the State for important state government office.
Id. at__, 111 S. Ct. at 2406. This requirement exists even
if ADEA was based upon Congress’ powers under the
Fourteenth Amendment, rather than the Commerce Clause.
Id. at_, 111 S. Ct. at 2405.
"The people of Missouri have a legitimate, indeed
compelling, interest
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