# Appendix — League of United Latin American Citizens v. Attorney General

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1071

## Text

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.

A general citation to Thornburg v. Gingles, the Supreme

Court’s decision on vote dilution, is superfluous at this point in our
court’s writing.

neal

124a

Texas case in which, paradoxically, the court also
acknowledged that Gingles says nothing about the possibility
of granting relief to minority group coalitions.‘ Previously,
it had rejected a plan offered by the plaintiffs that contained
a mixed black/Hispanic district, because it found the
interests of these two minorities too divergent to justify their
submergence in one district. Nevertheless, it predicated a
new, inexplicably opposite finding on Gingies’ second prong
and determined that the coalition of blacks and Hispanics
was politically cohesive. League of United Latin American
Citizens v. Midland Indep. Sch. Dist., 648 F. Supp. 596, 606
(W.D. Tex. 1986). Again, Judge Higginbotham noted the
court’s error in purporting to rely on Gingles:
[Gingles’] three-step inquiry assumes a group unified
by race or national origin and asks if it is cohesive in
its voting. If a minority group lacked common race
or ethnicity, cohesion must rely primarily on shared
values, socioeconomic factors, and _ coalition
formation, making the group almost indistinguishable
from political minorities as opposed to racial
minorities.
Midland, 812 F.2d at 1504. Reliance on Gingles is false

* Butler and Murray, supra at 642, observe that before the

Midland case, discks and Hispanics had pursued Voting Rights Act
cases togeiher, but they had sought separate districts or relief for
each misority.

* Tae court’s finding on political cohesiveness was supported

only by this:

. . - Blacks and Hispanics worked together and formed coalitions
when their goals were compatible. Additionally, the bringing of this
lawsuit provides evidence that blacks and Hispanics have common
interests that induce the formation of coalitions. Jd.

Butler and Murray term “shocking” the court’s
reliance only on the facts that suit has been brought jointly and that
the minority groups are willing to work together to accomplish
“compatible” goals. Butler and Murray, supra at 667.

125a

because Gingles does not address the meaning of or solution
to vote dilution of a minority coalition.

A principal reason for distinguishing homogeneous,
explicitly defined minority groups from minority coalitions
lies in Section 2 itself. One may be uncertain what Congress
might think about permitting minority coalitions to assert
vote dilution claims, but Congress clearly walked a fine line
in amending Section 2 to codify the results test for vote
dilution claims while expressly prohibiting proportional
representation for minority groups. The results test of vote
dilution inherently recognizes that a minority group will
sometimes fai] to merit a single member district solely
because they lack the population to "constitute a majority in
a single member district." Gingles, _U S.___, 106S. Ct.
at 2766 and n.17. Permitting Section2 claims by
opportunistic minority coalitions, however, artificially escapes
this hurdle. As a result, the remedy afforded to the coalition
may easily cross the line from protecting minorities against
racial discrimination to the prohibited, and possibly
unconstitutional, goal of mandating proportional
representation.®

The tension in Section 2 between the results test and
the prohibition of proportional representation fundamentally
distinguishes this case from Chisom v. Roemer, _ U.S. ___,
111 S. Ct. 2354 (1991), in which the Supreme Court
concluded that judicial elections are covered by Section 2.

¢ The Midland case illustrates this point. The district court
approved a “remedy”

in the form of the best available single member district to each of the
two groups, even though neither could satisfy [Gingles’] requirements
of size and compactness. ... Ironically, Section 2, which specifically
disavows a right to proportional representation, was used to provide
greater than proportional representation for two groups, neither of
whom would have qualified for a seat had proportional representation
actually been the law.

Butler and Murray, supra, 667-68 (emphasis added).

126a

Stating that certain types of elections are within Section 2 is
a definitional exercise. In Chisom, the Court held that
judicial elections, having once been covered by the Act,
remained covered following the 1982 amendment to Section
2. But it is a remedial exercise to decide whether to apply
the results test to a minority coalition united not by race or
language but only by their desire to advance a particular
agenda. Enlarging the permissible boundaries of Section 2
relief to encompass minority coalitions thus runs headlong
into the Section 2 prohibition of proportional representation,
creating a conflict that the Supreme Court did not face in
Chisom.

If Section 2 is held to permit relief for minority
coalitions, the complications for Voting Rights Act litigation
in our increasingly multi-ethnic society will be enormous.
Those complications alone imply that Congress rather than
the courts should first address any such innovation. Certain
questions should give pause even to the advocates of
minority coalitions. As Judge Higginbotham observed, the
availability of a minority coalition theory could be a defense
against an attack on an at-large system. Campos v. City of
Baytown, Texas, supra 849 F.2d at 945-46 (Higginbotham, J.).
Where the combined groups comprise more than half of a
voting population in a plausible single-member district, their
"cohesion" could be used as a device to "pack" the minorities
together. Further, on what basis would a court apportion
districts in the wake of a successful minority coalition
Section 2 suit? If each minority is given an opportunity to
prevail in a district, is this not an admission that the
coalition is ephemeral and not really "cohesive" as Gingles
requires? Is it possible that greater racial animosity will
develop if a court permits minority aggregation on too
insubstantial a basis and effectively submerges members of
one group in a district controlled by the other group?
Courts should be loath to embark upon coalition
redistricting with no expressed guidance from a statute that
reflects the will of the American people.

If, notwithstanding the absence of Congressional

127a

authorization, minority coalitions are permitted to assert
aggregate Section 2 vote dilution claims, relief must be
predicated on more evidence of the group’s homogeneity
than the maintenance of a joint lawsuit. See note 5, supra.
This is so for two reasons. As noted earlier, if a fortuitous
coalition of minorities can gain Section 2 relief on tenuous
proof of cohesion, the courts will have effectively undone
Congress’s explicit disapproval of proportional
representation. The less cohesive the groups truly are, the
more likely relief has been fashioned only because of the
groups’ joint minority status. Second, there is risk to
members of the minority groups themselves if their electoral
fates are joined even though they do not share
fundamentally similar social and political goals. To be sure,
the problem of determining minority political cohesiveness
under Gingles may be difficult even when the claims of one
minority group are at issue.’ But it should be self-evident
that the problem is compounded when different minority
groups, with radically different cultural and language
backgrounds, socioeconomic characteristics and experiences
of discrimination seek Section 2 coalition status. Forcibly
merging fundamentally different groups for the purpose of
providing "minority" representation could be a cruel hoax
upon those who are not cohesive with self-styled minority
spokesmen.

The difficulty of proving vote dilution on behalf of
coalitions of minorities has been vividly realized in practice.
Except in the Midland and Campos cases, there appear to be
no reported decisions in which sufficient proof of the
minority coalition theory was adduced to justify Section 2
relief. The theory has been litigated all over the country,
but it has repeatedly been rejected on factual grounds. See
Concemed Citizens of Hardee County v. Hardee County Bd. of

” See, e.g., Butler and Murray, 651-57, 674-87, describing the
diverse socioeconomic and ethnic qualities among our Hispanic
population.

128a

Commissioners, 906 F.2d 524 (11th Cir. 1990); Latino
Political Action Committee v. City of Boston, 609 F. Supp.
739, 744 (D.C. Mass. 1985) aff'd, 784 F.2d 409 (ist Cir.
1986); Butts v. City of New York, 614 F. Supp. 1527, 1546
(D.C. N.Y. 1985), reversed on other grounds, 779 F.2d 141
(2d Cir. 1985), cert. denied, 478 U.S. 1021, 106 S. Ct. 3335;
Badillo v. City of Stockton, 956 F.2d 884, 886 (9th Cir. 1992);
Romero v. City of Pomona, 665 F. Supp. 853, 859 (D.C. Cal.
1987), affd, 883 F.2d 1418 (9th Cir. 1989). See also Nixon
v. Kent County, Michigan, 790 F. Supp. 738 (W.D. Mich.
1992) in which Judge Enslen, author of a well-known
constitutional law treatise, thoughtfully concluded that the
only proper test for minority aggregation is whether two
minority groups "are indeed one." 790 F. Supp at 743.°
Even in Texas, before this case, the success of the Midland
and Campos plaintiffs was unique. See Overton v. City of
Austin, unpublished, 1987, aff'd, 871 F.2d 529 (Sth Cir. 1989)
(rejecting black/Hispanic coalition case in part because
evidence showed that each group voted for candidates of
their own race but not for candidates of the other race.)
What this string of defeats suggests, if not the utter
bankruptcy of Section 2 minority coalition claims, is at least
their factual complexity. Once the courts plunge into the
business of apportioning representation among racial or
ethnic coalitions, a host of difficult and potentially divisive
social questions rear their heads. A finding of political

* — The court in Nixon looked to the following factors, gleaned

from the definition of minority group:

(1) Whether the members have similar socioeconomic
backgrounds resulting in common social disabilities and exclusion;
(2) whether members have similar attitudes toward significant
issues affecting the challenged entity;

(3) whether members have consistently voted for the same
candidates; and
(4) whether the minorities consider themselves “one” even in

situations in which they would benefit independently.
Nixon at 790 F. Supp. 744.

129a

cohesiveness should require such coalitions to prove, at the
very minimum, not only that they usually vote for the
preferred candidates of their own ethnic group but also for
those of the coalition group -- otherwise, the groups cannot
be politically cohesive. Not only do most of the above-cited
decisions case doubt on such a proposition, but considerable
sociological literature also demonstrates "social distance"
between minority groups that seems inconsistent with
widespread coalition minority political cohesion.’
The second panel opinion in this Lulac case concedes
that
the procedure of allowing Blacks and Hispanics to
proceed as a "coalition" minority group in a Section
2 claim is fraught with risks.
Lulac II, 986 F.2d 785, n.43. Ironically, while citing the
Butler and Murray article to which I have referred, the
panel makes no use of its cautionary data or its conclusion:
Proponents of coalition dilution suits argue
that minority groups are natural allies because of
their shared exclusion from the dominant society, and
their similar lower socioeconomic status, which,
proponents maintain, is a product of past
discrimination. Despite the simplistic logic of this
position, it does not comport with the reality revealed
by social science studies. Those studies suggest just
the opposite. The rarity of documented political
alliances between minority groups is the natural
consequence of differences in their attitudes and
perceptions. Studies indicate that minorities in fact
identify more closely with the dominant group than
with other minorities. Moreover, perceptions of

* — See, e.g., Dyer, Dedlitz and Worochel, Social Distance Among
Racial and Ethnic Groups in Texas, Some Demographic Correlates,
70 Social Science Quarterly 607, 613-14 (1989); Donald L. Horowitz,
"Conflict and Accommodation: Mexican Americans Need
Cosmopolis” in Mexican Americans in Comparative Perspective 58, 84-
92 (1985) See also Butler and Murray, supra n.7.

130a

discrimination vary widely among groups. Blacks, for

example, are much more likely than Mexican

Americans to perceive themselves to be victims of

discrimination. Still other studies suggest that the

underlying causes of lowered socioeconomic status

differ among minority groups. Different root causes

of poverty are likely to lead to different, possibly

even conflicting, demands on the government.
Butler and Murray, supra, 688-89. Butler and Murray
contend that because of these differences, minority coalitions
"very seldom" ought to be able to prove vote dilution under
Section 2. Butler and Murray, supra at 687. The short
answer to plaintiffs’ joint Section 2 claims in Lubbock, Ector
and Midland Counties is that they did not meet their burden
of proof that blacks and Hispanics are sufficiently like a
single minority group to entitle the coalition to one judicial
district in each county.

Conclusion

The Congressional compromise that resulted in the
passage of Section 2 left the field of voting rights wide open
to courts im many respects. Congress did not, however,
contemplate or authorize relief for coalitions of racial and
language minority groups. For the courts to provide such
relief, in my view, judicially amends the Act and flies in the
face of the express prohibition of proportional
representation in Section 2. At the very least, only under
very convincing proof of a minority coalition’s sociological
similarities and goals as well as its political cohesion can
such a claim be made. In this case, plaintiffs have not
carried their burden of proof concerning Lubbock, Midland
or Ector Counties. Our court’s previous decisions in
Midland and Campos must be overruled. With these
additional observations, I concur in the majority opinion.

POLITZ, Chief Judge, with whom, JOHNSON, KING and
WIENER, Circuit Judges, join, dissenting:

I respectfully dissent. The parties have moved for
remand of this action to the district court for consideration

13la

of a proposed settlement. Remarkably, the majority denies
that motion despite the fact that our jurisprudence long has
favored settlement as the preferred mode of dispute
resolution,’ permitting avoidance of unnecessary monetary
and emotional costs and the risks attendant in all litigation.’
We have long recognized that the parties to an action "have
a right to compromise their dispute on mutually agreeable
terms.” There is nothing about this action against the State
of Texas that would warrant abrogation of that well-
established rubric.‘ The Governor and Attorney General,
joined by a majority of both houses of the Texas Legislature,
have made manifest their desire to compromise this action.
In its headlong rush to reach the merits, the majority
suggests no persuasive, much less compelling, reason for the
jettisoning of the preferred manner of dispute resolution. I

‘Williams v. First Nat'l Bank, 216 U.S. 582, 595 (1910); see also,
¢.g., Carson v. American Brands, Inc., 450 U.S. 79, 86-88 (1981)
(potential loss by parties of opportunity to settle constitutes "serious,
perhaps irreparable, consequence” of district court’s refusal to enter
consent decree making such ruling immediately appealable); Bass v.
Phoenix Seadrill/78, Lid., 749 F.2d 1154 (Sth Cir. 1985); In re Chicken
Antitrust Litigation, 669 F.2d 228 (Sth Cir. Unit B March 1982);
United States v. City of Alexandria, 614 F.2d 1358 (Sth Cir. 1980); ef.
Fed. R. Civ. P. 68 (recipient of settlement offer must pay costs
incurred after receipt where judgment ultimately obtained is not as
good as offer); Fed. R. Evid. 408 (evidence of good faith settlement
negotiation inadmissible as proof of liability or claim value at trial).

*Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478
U.S. 501, 528-29 (1986); United States v. City of Miami, 664 F.2d 435,
439 (Sth Cir. 1981) (citing United States v. Armour & Co., 402 U.S. 673
(1971)) (en banc) (plurality opinion).

*City of Miami, 664 F.2d at 440.

‘See Chisom v. Edwards, 970 F.2d 1408 (Sth Cir. 1992) (granting
joint motion to remand to effectuate settlement in Louisiana voting

rights case).

132a

would grant the motion to remand.

Stripped to essentials, the majority asserts that
Attorney General Morales lacks authority to settle this
matter on behalf of the State because of the opposition by
Chief Justice Phillips and Judges Entz and Wood. I find this
nothing short of incredible. This action challenges the
scheme for election of district judges in Texas. The real
party in interest herein is the State of Texas.* As its chief
legal officer, the Attorney General "has broad discretionary
power in conducting his legal duty and responsibility to
represent the State,"* including authority to propose and
execute settlement agreements in reapportionment cases.’
That is what the Attorney General seeks to do in this case.*

*The State is the real party in interest in an action against one of
its officials in her official capacity. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989); Kentucky v. Graham, 473 U.S. 159,
165-66 (1985). The plaintiffs here named as defendants 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,
all in their official capacities. In short, the plaintiffs have sued the
State of Texas.

Terrazas v. Ramirez, 829 S.W.2d 712, 721 (Tex. 1991) (citing Tex.
Const. art. 4, § 22; Tex. Gov't Code § 402.021; further citations
omitted).

"Terrazas, 829 S.W.2d at 722; id. at 747 (Mauzy, J., dissenting) (at
least seven justices agree that “[t}he attorney general is
constitutionally empowered to execute a settlement agreement in li-
tigation challenging a legislative redistricting plan.”).

*The majority also makes much of the fact that the consent
decree allows the State of Texas to take actions which would other-
wise be prohibited by state law. I do not think that consideration of
the merits of the proposed consent decree is appropriate at this
juncture. We are a court of errors; the district court should have an
opportunity to conduct a hearing and determine whether to enter the
consent decree before we decide the merits of such action.

(continued...)

133a

The Attorney General has the active assent of the Governor,
Lieutenant Governor, and a majority of both houses of the
Texas Legislature. Pray tell, what more do we need to
accept the proposed settlement as being made on behalf of
the State of Texas?

That Chief Justice Phillips has voiced an objection
does not alter the certainty that the State of Texas, through
its authorized spokesman, wishes to settle this matter. As
chairman of the Judicial Districts Board, Chief Justice
Phillips has a measure of authority over judicial
apportionments. We cannot ignore, however, that the
Board’s authority in this area —— and hence that of the Chief
Justice —— is entirely subject to the will of a majority of the
legislature? which has, albeit in a nonbinding fashion,
agreed to the proposed settlement.” Further, the status of

*(...continued)

I further note that although courts generally must defer to
state apportionment policy in fashioning the remedy for a violation
of Section 2, district courts have equitable power to depart from state
law if necessary. See, e.g., White v. Weiser, 412 U.S. 783, 797 (1983)
(Constitution and Voting Rights Act limit judicial deference to state
apportionment policy). If the court ultimately concludes that there
is a reasonable factual and legal basis for finding such a violation, see
City of Miami, 664 F.2d at 441, the exercise of such powers by way of
a consent decree may be appropriate.

"See Tex. Const. art. 5, § 7a(h) ("Any judicial reapportionment
order adopted by the board must be approved by a record vote of the
majority of the membership of both the senate and house of
representatives before such order can become effective and binding.”).

"Chief Justice Phillips’s limited authority in this area distinguishes
the case at bar from Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) (en
banc), heavily relied upon by the majority. Unlike the district
attorney in that case, who enjoyed specific authority under state law
to represent the state and bring prosecutions nder ihe statute there
at issue, Chief Justice Phillips enjoys neither jw«pemdent authority
over judicial apportionment nor express authority to represent the
State.

134a

the Chief Justice in the Texas judiciary does not carry with
it the authority to speak ex cathedra for the state on policy
matters affecting the judiciary which are unrelated to the
decisions of specific cases." That the plaintiffs, probably
out of an abundance of caution, joined the Chief Justice as
a defendant in this action should not preclude settlement.
No one may seriously suggest that this voting rights case
could not have progressed to a definitive conclusion without
the presence of the Chief Justice. The awesome decision to
deny parties an opportunity to compromise and settle their
case, much less a case as important as that here presented,
must be based on a much more solid, indeed a compelling
basis.

I would remand this case to the district court for
consideration of the proposed consent decree.

"This proposition applies equally to Judges Entz and Wood.
Further, because the proposed consent decree will not affect their
constituencies, Judges Entz and Wood do not gain standing to chal-
lenge the consent decree because of their status as office holders.
City of Cleveland, 478 U.S. at 528-29; City of Miami, 664 F.2d at 447
(“the parties to litigation are not to be deprived of the opportunity to
compose their differences by objections that find no basis in prejudice
to the objector”). Finally, the majority opines that the status of
Judges Entz and Wood as voters in Harris County somehow clothes
them with authority to block a settlement favored by competent state
authorities. While the district courts certainly should permit input
from such intervenors when considering entry of a consent decree, to
accord them what amounts to a veto, as the majority does, would
effectively preclude settlement of any Section 2 litigation —— an
absurd and unconscionable result which I refuse to embrace. See City
of Cleveland, 478 U.S. at 529 ("[W]hile an intervenor is entitled to
present evidence and have its objections heard at the hearings on
whether to approve a consent decree, it does not have power to block
the decree merely by withholding its consent."). Extending the
majority’s analysis would result in any voter being able to block
settlement of any suit against the state or one of its subdivisions.
That simply cannot be. See Apache Bend Apts. v. United States, 987
F.2d 1174 (Sth Cir. 1993) (en banc).

135a

KING, Circuit Judge, with whom, POLITZ, Chief Judge,
and JOHNSON, Circuit Judge, join, dissenting:

The majority ably accomplishes what it set out to do
in this case: reach the merits of this appeal so that it can
overhaul the Voting Rights Act. Indeed, from its initial
decision to deny the motion to remand filed by the Plaintiffs
and the State of Texas, to its decision to reverse the district
court’s judgment in each of the nine target counties, the
majority proceeds with a kind of determination not often
seen in a judicial opinion. Like Chief Judge Politz, I believe
that the parties should be given the opportunity to settle this
case. I also believe that fidelity to the Voting Rights Act
requires us to affirm the district court’s judgment in eight of
the nine target counties. Accordingly, I respectfully dissent.

The majority’s decision to deny the motion to
remand, even standing alone, is_ indefensible. It
demonstrates a lack of judicial restraint and sets a bad
precedent. Under the majority’s reasoning, states and
political subdivisions embroiled in section 2 lawsuits must
now defend their electoral practices to the bitter end--unless
those practices can be changed in accordance with state law
and everyone who is even remotely connected with the
lawsuit agrees to the proposed changes. Because these
circumstances are unlikely to occur, the majority has
effectively ensured that section 2 cases will rarely, if ever, be
settled.

In light of the majority’s seriously flawed decision on
the merits of this case, however, its decision to deny the
motion to remand becomes even more indefensibie. In my
view, the majority’s discussion of the merits--complete with
a declaration that blacks and Hispanics are just two more
interest groups and a conclusion that blacks and Hispanics
are overrepresented on the Texas district court bench--
perhaps provides the best argument against its decision to
deny the parties’ motion to remand this case for a settlement
hearing. In fact, it is only after reading the majority’s
decision on the merits that one can truly understand why it
denied the motion to remand. For that reason, I begin with

136a

the merits.

I. THE MERITS

In reversing the district court’s judgment, the
majority ultimately concludes that the evidence of vote
dilution in this case is "marginal"--too marginal to outweigh
the State of Texas’ substantial interests in maintaining the
current system. I disagree with this conclusion on two
fronts. First, I reject the majority’s assertion that the
evidence of vote dilution in this case is weak. Under the
established analytical framework for assessing section 2
claims, the Plaintiffs’ evidence of vote dilution is anything
but weak; indeed, it is only by changing the rules that the
majority can so characterize the evidence in this case. I also
disagree with the majority’s determination that the State of
Texas’ interests in maintaining its current at-large election
system are substantial. In my view, these interests are little
more than tenuous and therefore could not outweigh even
"marginal" evidence of vote dilution.
A. The Plaintiffs’ Evidence of Vote Dilution: Overhauling

a Congressional Statute

As explained in my earlier opinion, the evidence of
vote dilution in this case is substantial. See League of United
Latin American Citizens, Council No. 4434 v. Clements, 986
F.2d 728, 776-803 (Sth Cir. 1993) (LULAC III).' Had this
case been decided before today, the evide: The majority suggests that evidence thai racially divergent voting
patterns are attributable to partisan affiliation or perceived interests
is "quite probative” on the question of whether white bloc voting will
consistently defeat minority-preferred candidates. Majority Opinion
at [48-49] n.26. I strongly disagree. If the “perceived interests” of
minority voters lead them to vote for candidates of one political
party, while the interests of a majority of whites lead them to vote for
candidates of a different party, this would seem to strengthen, not
weaken, the consistency with which the two racial groups would vote
differently. That ejection results appear to be attributable to voting
along party lines, then, does not suggest that other candidates,
“equally preferred by the minority group, might be able to attract
greater white support in future elections.” In short, it does nothing
to undercut--and may even strengthen--the consistency with which
minority-preferred candidates are defeated.

149a

in the legislature in comparison with their proportion of the
population.” S. REP. at 20, 1982 U.S.C.C.A.N. at 198; see
also id. at 23, 1982 U.S.C.C.A.N. at 200 ("Whitcomb ...
recognized that, in order to prevail, plaintiffs had to prove
more than that minority members had not elected legislators
in proportion to their percentage of the population."). Also
significant to the outcome in Whitcomb, in Congress’ view,
was the fact that nine blacks had won at-large elections in
the time period studied in Whitcomb. See id. at 21, 1982
U.S.C.C.A.N. at 198.4 Significantly, Congress never
interpreted Whitcomb to require minority plaintiffs to prove
that the consistent defeat of their preferred candidates is not
the result of partisan politics. As explained more fully in my
earlier opinion, Whitcomb stands for the proposition that
where there is evidence of partisan voting or interest group
politics and no evidence that members of the minority group
have an unequal opportunity to participate in the political
process on account of race or color, the minority group’s
vote dilution claim will fail. See LULAC III, 986 F.2d at
808-10.
(ii) Social science problems

Even without the legal problems inherent in the
majority’s approach to legally significant white bloc voting
and racially polarized voting, the majority’s approach is
severely flawed from a social science perspective.

* The Department of Justice (DOJ) argues persuasively in its en
banc brief that the real issue in Whitcomb was not whether blacks in
Marion County generally were denied an opportunity to elect their
chosen candidates, but whether ghetto blacks were being denied such
an opportunity. DOJ points specifically to evidence suggesting that
"black voters in a middle-class black area were able to elect
candidates from their area even when Republicans were winning
generally." See Whitcomb, 403 U.S. at 133, 150 0.29 (noting that
census tract 220, inhabited predominantly by middle class blacks,
elected one senator and five representatives). The ghetto area had
similar success. During the same time period, it elected one senator
and four representatives. Id. at 150 n.29.

150a

Regardless of whether the majority requires a multivariate
regression analysis, which would seek to eliminate all causes
of voting behavior other than race, or only a trivariate
regression analysis, which would attempt to eliminate
partisan affiliation, there is a problem with requiring this
type of evidence as an integral part of the vote dilution
inquiry: it ignores the critical distinction between
experimental research and non-experimental research.
Specifically, it ignores the warning of most respected social
scientists, including the experts who testified in this case,”
that the causes of voting behavior cannot be determined
from the use of any kind of regression analysis--whether
bivariate, trivariate, or multivariate.

It is important to recognize that the kind of evidence
that the majority requires minority plaintiffs to introduce will
involve no experimental manipulation of independent
variables. The plaintiffs will not be able to manipulate the
race or party affiliation of the candidate to determine which
one had the greater effect on election outcomes. Rather,
the plaintiffs will have to take existing election results and
work backwards. This kind of real world research has been
labelled "non-experimental research" by social scientists. See
ELAZAR J. PEDHAZUR, MULTIPLE REGRESSION IN
BEHAVIORAL RESEARCH: EXPLANATION AND PREDICTION
175 (2d ed. 1982).

There are two main problems with inferring causation
on the basis of regression analyses in the context of non-
experimental research:

First, variables used in nonexperimental research may

be, and often are, proxies for causal variables that

are not included in the regression equation. .. .

* The State of Texas’ expert in this case conceded that his intent
in conducting a trivariate regression analysis "was not find out the
precise reasons why a candidate won or lost." He further stated that,
if he “had tried to get involved in campaign expenditures and
incumbency, ratings by the Bar Association, it would be an impossible
task to do.” See LULAC III, 986 F.2d at 805.

15la

Needless to say, manipulating a proxy variable will
not bring about a desired effect regardless of the
magnitude of the regression coefficient associated
with it. Yet, one encounters frequently not only the
interpretation of proxies as if they were causal
variables but also recommendations for policy

decisions on the basis of such interpretations. .. .

Second, variables in nonexperimental research
tend to be intercorrelated. Since more often than
not researchers neither understand the causes of the
interrelations nor attempt to study them, implications
of regression coefficients for policy decisions are
questionable.

PEDHAZUR, supra, at 224.

Requiring minority plaintiffs to come forward with a
multivariate regression analysis to determine the causes of
racially divergent voting patterns, as Judge Higginbotham
originally advocated in City of Lubbock, see supra Part
I.A.1.a., would implicate the second problem described
above. The independent variables listed by Judge
Higginbotham--including incumbency, campaign
expenditures, party identification, income, media use
measured by cost, religion--"tend to be correlated, sometimes
substantially." PEDHAZUR, supra, at 224. Therefore, "it
[becomes] difficult, if not impossible, to untangle the effects
of each variable." Jd. By inferring causation from such
analysis, we would undoubtedly be engaging in what
amounts to an "almost mindless interpretation[] of regression
analysis in nonexperimental research." Jd. at 223. In short,
we would be importing "junk science" into the Voting Rights
Act while rejecting it in other contexts.°

* Professor Bernard Grofman, of the University of California at
Irvine, has recently commented on the pitfalls of drawing conclusions
about causation from multivariate analyses of voting patterns. In an
article appearing in Social Science Quarterly, Profes

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0602%3A2. Public record. Not legal advice.