Salas v. Southwest Texas Jr. College Dist. ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-8175
_____________________
JESUS SALAS, AGUSTIN NEGRETE and BENJAMIN MENCHACA,
Plaintiffs-Appellants,
VERSUS
SOUTHWEST TEXAS JUNIOR COLLEGE DISTRICT, ET AL.,
Defendants-Appellees.
____________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_____________________________________________________
(June 24, 1992)
Before GOLDBERG, DUHÉ and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
At issue in this Voting Rights Act § 2 case is whether the
plaintiff Hispanic voters, who constitute a registered voter
majority in the challenged at-large district, have met their burden
of establishing that use of the at-large system, as opposed to
single member districts, results in their "hav[ing] less
opportunity than other members of the [district's] electorate to
participate in the political process and to elect representatives
of their choice". 42 U.S.C. § 1973(b); Thornburg v. Gingles, 478
U.S. 30, 65 (1986). Because we hold that the district court's
findings, including that white (Anglo) bloc voting is not legally
significant, are not clearly erroneous, we AFFIRM; but we do so "on
somewhat different reasoning than the district court employed."
Monroe v. City of Woodville, 881 F.2d 1327, 1328 (5th Cir. 1989),
modified on reh'g, 897 F.2d 763 (5th Cir.), cert. denied, __ U.S.
__, 111 S. Ct. 71 (1990).
I.
The challenged Southwest Texas Junior College District
(District) covers all of Zavala and Uvalde counties and most of
Real County, Texas, an area of roughly 3,400 square miles. Its
Board has seven members, elected at large. They serve six-year
staggered terms and are elected to numbered posts.1 To be elected,
a candidate must win a majority of the votes cast.
Hispanics comprise approximately 63% of the 36,000
(approximate) population of the three counties from which the
District is drawn, and about 57% of the voting age population.2
And, according to the Texas Secretary of State's July 1990 Voter
Registration Statistical Report, 53% of the registered voters in
the three counties in which the District is located have Spanish
surnames. Although there is some doubt about the accuracy of the
Hispanic population and voting age population statistics, the
1
The District instituted a place system in 1970. "A numbered-
post system requires a candidate to declare for a particular seat
on a governmental body. The candidate then runs only against other
candidates who have declared for that position. The voters then
have one vote for that seat. The system prevents the use of
bullet, or single shot, voting." Campos v. City of Baytown, 840
F.2d 1240, 1242 n.1 (5th Cir. 1988), cert. denied, 492 U.S. 905
(1989).
2
This case was tried in 1990, and the total Hispanic population
and voting age population figures are based on the 1980 census.
The district court found, however, that the District's total
population has remained relatively stable since 1980.
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parties do not dispute that Hispanics constitute a slight majority
of the registered voters in the District.3
Pursuant to the Voting Rights Act of 1965, as amended, 42
U.S.C. § 1973 et seq., Hispanic voters filed suit in March 1988
against the District and its trustees. A two-day trial was held in
November 1990; and in late February 1991, the district court
entered detailed, exacting, and comprehensive findings and
conclusions. It found that the plaintiffs had not demonstrated
legally significant white bloc voting and entered judgment for the
defendants.
The district court made the following findings of fact,
undisputed on appeal, concerning the District's election history
(but, as discussed infra, these findings do not reflect the
election of two Hispanics over incumbents in May 1992):
In the forty-four years of the Board's existence,
there have been only twenty-three persons elected
to the Board.
The evidence shows that only two Hispanics[,
including Mr. Ritchie,] have ever been elected or
appointed to the Board of Trustees.4
For the first twenty-four years of the [District's]
existence, all elections for the Board were
uncontested.
In the past twelve years, there has been only one
contested election for the Board. There was a
3
The district judge found the evidence to that effect reliable.
4
Plaintiffs dispute that Mr. Ritchie is Hispanic. He testified
that he considers himself to be Hispanic and has Hispanic heritage.
Ritchie was defeated by an Hispanic candidate in May 1992, as
discussed infra.
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contested election in 19845 and there were eleven
contested elections between 1970 and 1978.6 Thus,
in the history of the [District], there have been
only thirteen contested elections and in each case
the incumbent won.
In 1974 and 1976, an Anglo challenger ran against
an Anglo incumbent. In both instances, the
incumbent won.
In ten instances, Hispanic candidates ran against
Anglo incumbents. In each case, the incumbent won.
In one election, an Hispanic challenger ran against
an Hispanic incumbent. The Hispanic incumbent won.7
5
Josue Garza testified concerning his unsuccessful 1984
campaign for trustee. He opined that the large district size made
election difficult for candidates running at large. The District
elicited testimony regarding his unsuccessful election history,
including that the only time he had won office was in an
uncontested election.
6
Between 1970 and 1978 the Hispanic party La Raza Unida
exercised political power in the area comprising the District. La
raza means "the race" or "the people". The political impact of La
Raza Unida diminished after 1978; and by the time of the Josue
Garza campaign in 1984, association with the party was perceived as
a political liability.
7
Subsequent to oral argument, the District submitted the
results of the May 1992 elections for two trustee positions. Those
results would alter several of the district court's factual
findings (including number of contested elections, number of
Hispanics elected, and success of Hispanic challengers against
Anglo incumbents). For each position, a Spanish surnamed
challenger defeated an incumbent. At least one of the incumbents
was Anglo; the other was E. W. Ritchie, whom plaintiffs claimed to
be Anglo, see note 4, supra. We simply note these facts; they do
not affect "our review of the [district] court's conclusions".
Monroe v. City of Woodville, 881 F.2d 1327, 1329 n.2 (5th Cir.
1989), modified on reh'g, 897 F.2d 763 (5th Cir.), cert. denied, __
U.S. __, 111 S. Ct. 71 (1990). On the other hand, they do deflate
appellants' assertions in their affirmative and reply briefs that
"[t]he proof of the pudding is the fact that no Mexican American
candidate has ever been able to defeat an Anglo opponent", and that
"[t]he stark fact is that no Mexican American has ever defeated
[an] Anglo in a contested race".
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There has been only one runoff in the history of the District, in
which the candidate, an Anglo, who won by a plurality in the first
election, carried a majority in the second.
At trial, plaintiffs presented evidence of a strong
correlation between race and voting in the District. It is
undisputed here that cohesion exists among Hispanic voters, that
elections are racially polarized, and that Anglos and Hispanics
engage in bloc voting. Although there was some testimony that
Anglos and Hispanics coalesce around distinct sets of issues,
there was also testimony that the Board is not political and that
campaigns are not issue-driven.
Plaintiffs offered evidence on practical inhibitors to
Hispanic voting, including the effect of dual registration, "soft"
voting rolls that include residents who have moved,8 and the
migrant population within the District. However, it was not
established that these phenomena impact Hispanic voters more
frequently than Anglos.9 Although a procedure exists for removing
the names of persons who have moved from the voting rolls, the
parties dispute its effectiveness.
8
Several witnesses offered anecdotal testimony concerning
persons listed twice on the rolls (dual registration) or persons
who remain listed despite the fact that they have moved.
9
The district court found: "There were no studies or other
credible evidence presented that measured the comparative rate of
these phenomena by ethnic group. ... Although there was anecdotal
evidence regarding persons registering and then moving, there were
no studies to confirm or measure this phenomenon. ... Although
there was testimony that as many as ten percent of the voters on
the registration [rolls] had moved, plaintiffs' witnesses were able
to identify only about one percent in precincts with which they
were familiar."
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The plaintiffs contended in district court that the absence of
migrant workers within the District at election time is a
significant factor in Hispanic voters' inability to elect their
preferred candidates. They introduced a report prepared in 1976 --
14 years before trial -- by the Governor's Office of Migrant
Affairs (GOMA), which lists, as of 1976, approximately 8,500
persons as migrants within the three-county area.10 It stated that
migrants typically leave the District in March, April, and May, and
return in September, October, and early November.
The district court questioned the GOMA report's accuracy and
probativeness, noting, for example, that it includes in its count
all migrant family members, not just persons eligible to vote; the
estimate of 8500 migrants includes those who did any migrant work
in the five years before 1976 and who may have done such work for
only one day; and, the GOMA report was based on data compiled from
the 1970 census and predicted a stable migrant population for only
five to ten years -- that is, until 1981-86.11 Finally, as the
district court noted, plaintiffs presented no evidence on the
percentage of migrants registered to vote. Accordingly, it is
unclear to what extent the absence of migrant workers from the
10
The preface to the population figures contains the following
disclaimer: "The following estimates should be taken for their
face-value as projected estimates having restricted statistical
testworthiness."
11
There was contradictory testimony concerning whether migrant
work was more prevalent in 1990, the time of trial, than in the
mid-1970's. Trustee Flores testified that it was less prevalent;
former Commissioner Cardona, that it was more. Plaintiffs
introduced no figures from the 1990 census concerning the level of
migrant population in the District.
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District during an election means an absence of Hispanic registered
voters. Plaintiffs' expert admitted: "I don't know that we have
the hard data that says what the political behavior of migrants
[is] in the studies that we have before us."
The plaintiffs also contended in district court that, although
Hispanics represent a majority of registered voters in the
District, more Anglos than Hispanics actually vote in District
Board elections. They introduced a study, based on, among others,
the 1984 and 1986 elections, which showed that more Anglo voters
usually turned out and that their votes generally constituted the
majority of those cast. The district court had "difficulty drawing
any conclusions or inferences from" the study, however, because of
errors it contained.12
As discussed infra, the district court made findings on
relevant factors such as no discrimination against Hispanics by the
District, literacy and other education comparisons, and poverty
level comparisons. In its conclusions of law, it applied Thornburg
v. Gingles, albeit construing it too narrowly in some respects, as
also discussed infra, and held, inter alia, that, "[w]here the
protected group constitutes a majority of the registered voters in
an election district, [then: (1)] any Anglo bloc voting that might
exist is not legally significant"; and (2) "the use of an at-large
12
The defendants examined some of the elections depicted in the
study. As the district court noted, for each election in which
defendants recalculated the data, the results had to be modified to
increase the percentage of votes cast by Hispanics and to decrease
Anglo vote percentages. Also, the study erred in counting persons
with common Hispanic surnames as Anglo voters.
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system is not dilutive". In so holding, it cited Perea v. Town of
Pecos City, No. P-83-CA-22 (W.D. Tex. April 20, 1984) (pre-Gingles:
discussed in note 14, infra) and "dictum" from City of Woodville.
It also held that "[t]o the extent that at-large systems are
dilutive, it is because they submerge minority groups in a district
dominated by the majority". In holding against the plaintiffs, the
district court made the following "ultimate finding":
Although there is evidence that Hispanics have
been underrepresented on the [District] Board, this
Court is hesitant to intervene when those same
Hispanics could readily solve this problem by
simply running candidates and turning out to vote.
While the Court is cognizant of the history of
discrimination that has occurred in the area, the
evidence presented at trial demonstrated that
Hispanics have been able to get elected to offices
in political units within the [District] when
significant Anglo support was required. Finding
that plaintiffs enjoy the same "opportunities [as]
other members of the electorate to participate in
the political process and to elect candidates of
their choice," this Court enters judgment for
defendants.
II.
The Hispanic voters contend that their registered voter
majority status in the District does not immunize the District from
a § 2 attack by that majority; and that, in ruling on a § 2 claim
involving such factors, the district court must still consider the
totality of circumstances, as opposed to denying relief solely
because the plaintiffs cannot satisfy the three preconditions
established in Gingles for § 2 cases challenging multimember
districts.13 Maintaining that the district court did not consider
13
As discussed infra, one of the district court's conclusions of
law was that "[t]he failure to establish any of the [three]
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the totality of circumstances, the Hispanic voters contend that
this case must be remanded for that purpose. Concomitantly, they
charge the district court with failing to consider properly the
evidence they presented, including on the question of racially
polarized voting, and assert that its findings of fact were
insufficient under Fed. R. Civ. P. 52 standards set by this court,
because they were not sufficiently specific and detailed and failed
to state why some evidence was not considered. In short, they
contend that the district court's findings were clearly erroneous
-- the standard of review for § 2 cases, as discussed in part II.B.
A.
We first consider whether plaintiffs, as members of a
registered voter majority class, are precluded, as a matter of law,
from bringing a vote dilution claim. We hold that they are not.
Our decision in Monroe v. City of Woodville arguably rendered the
same holding. In that multimember district case, this court
focused on plaintiffs constituting a majority of the district's
population and held, in part: "Unimpeachable authority from our
circuit has rejected any per se rule that a racial minority that is
a majority in a political subdivision cannot experience vote
dilution.... Such a case is not ... precluded as a matter of law."
881 F.2d at 1333. Here, however, Hispanics constitute not only a
sizable population majority, but also a registered voter majority.
Thornburg preconditions is fatal to the plaintiffs' case and
precludes the necessity of considering the Zimmer factors or other
proof. Overton v City of Austin, 871 F.2d 529, 538 (5th Cir.
1989)."
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We must decide whether they fail, as a matter of law, in claiming
that an at-large district can illegally dilute their vote in such
a circumstance. This is an issue of first impression in our
circuit.14 Needless to say, constituting a registered voter
majority is far more significant in a voting rights case than
simply being a population majority. This notwithstanding, as
discussed below, a protected group -- even when it is the
registered voter majority -- may seek relief in a vote dilution
case. Whether it can obtain relief is, of course, a question of
proof, as discussed in part II.B.2.
Because this is a case of first impression, we replow quite
familiar voting rights ground, in order to establish a firm and
sure bedding for laying the "totality of circumstances" path that
we must follow in order to reach our destination. The path is not
long, but it must be straight and sure. It travels over, and
touches, many obvious basic, and quite sensitive, bedrock national
principles and issues. Many of the battles that helped clear this
ground were fought long ago; others, in the not too distant past.
The memory of them is most painful, but we are equally mindful of
our limited role as we make this journey.
14
In Perea v. Town of Pecos City, No. P-83-CA-22 (W.D. Tex.
April 20, 1984), decided before Gingles, the court denied a § 2
challenge brought by Mexican American voters, who were a registered
voter majority in Reeves County, Texas. Op. at 5, 13. The court
reached its conclusion based on a consideration of the various
Zimmer, or Senate Report, factors, now incorporated into the § 2
"totality of the circumstances" analysis, as discussed infra. Id.
at 8-12. It held that the challenge was in part an attempt to
achieve proportional representation. Id. at 13.
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In Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en
banc), aff'd sub nom. East Carroll Parish School Board v. Marshall,
424 U.S. 636 (1976), this court considered whether "an at-large
scheme [could] work a dilution of black voting strength where
blacks, though constituting a minority of registered voters,
comprise a majority of the total population of the parish." 485
F.2d at 1300. We held that it could, because "[t]he legal
standards announced by the Supreme Court in ... White v. Regester
[, 412 U.S. 755 (1973)] admit of no distinction on the basis of
size of population alone." Id. at 1303.15 Zimmer is the above-
referenced "[u]nimpeachable authority from our circuit ...
reject[ing] any per se rule that a racial minority that is a
majority in a political subdivision cannot experience vote
dilution." City of Woodville, 881 F.2d at 1333.
The answer turns, in part, on what kind of "minority" the
Voting Rights Act protects, a national racial or language minority,
or a numerical minority of voters in the jurisdiction at issue.
The plain text of the statute, as affirmed by case law, makes clear
that the Act is concerned with protecting the minority in its
capacity as a national racial or language group.
Section 2 of the Voting Rights Act, 42 U.S.C. § "1973(a)[,]
protects the right to vote of both racial and language minorities."
15
In White, the Supreme Court had affirmed a finding of Hispanic
vote dilution in Bexar County, Texas, even though Mexican-Americans
in that county constituted a population majority. See Graves v.
Barnes, 343 F. Supp. 704, 733 (W.D. Tex. 1972) (three judge court),
aff'd in relevant part sub nom. White v. Regester, 412 U.S. 755
(1973).
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Campos v. City of Baytown, 840 F.2d 1240, 1244 (5th Cir. 1988),
cert. denied, 492 U.S. 905 (1989). Likewise, Gingles states that
§ 2(a) concerns "member[s] of a protected class of racial and
language minorities." 478 U.S. at 43. As noted, see also, City of
Woodville, 881 F.2d at 1333. Section 2(a) provides in part:
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 1973b(f)(2) of this title ....
42 U.S.C. § 1973(a) (1992). Section 1973b(f)(2) protects the
voting rights of "member[s] of a language minority group" from
denial or abridgment by the same means listed in § 1973(a). The
"class of citizens protected by subsection (a)", § 1973(b), is
those persons whose vote is diluted based on their membership in a
protected racial or language minority class, rather than in a
voting group less populous in the district than the white majority.
This distinction is vividly portrayed in the Act's legislative
history. The Voting Rights Act was passed in 1965 to effectuate
the guarantees of the Fifteenth Amendment.16 H.R. Rep. No. 439,
89th Cong., 1st Sess. (1965) (Rep. No. 439), reprinted in 1965
U.S.C.C.A.N. 2437, 2439; Chisom v. Roemer, __ U.S. __, 111 S. Ct.
2354, 2362 (1991). Congress was attempting to remedy "the
systematic exclusion of Negroes from the polls that characterizes
16
That Amendment, enacted in 1870, provides: "The right of
citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race,
color, or previous condition of servitude." U.S. Const. amend. XV.
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certain regions of this Nation." Rep. No. 439, 1965 U.S.C.C.A.N.
2440. It sought to combat such discriminatory devices as literacy
tests and poll taxes. Id., 1965 U.S.C.C.A.N. 2443, 2444, 2451.
The Act was aimed at measures that dilute the voting strength of
groups because of their race, not their numerical inferiority.17
In 1975, Congress extended the Voting Rights Act to cover
jurisdictions where language minorities reside. S. Rep. No. 295,
94th Cong., 1st Sess. 8 (1975), reprinted in 1975 U.S.C.C.A.N. 774;
see United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d
547, 550 (5th Cir. 1980), cert. denied, 451 U.S. 1002 (1981). To
"race or color", it added "or in contravention of the guarantees
set forth in section 4(f)(2)" of the Act.18 Chisom, __ U.S. __, 111
S. Ct. at 2362 & n.18. The amendments' purpose was to remedy
existing voting discrimination against citizens from non-English
speaking environments. S. Rep. No. 295 at 24, 30-31, 1975
U.S.C.C.A.N. at 790, 797.
The Senate Judiciary Committee analogized discrimination faced
by language minorities to what blacks had experienced in the South
prior to enactment of the 1965 Act:
17
In a report entitled "Joint Views of 12 Members of the
Judiciary Committee Relating to the Voting Rights Act of 1965",
made a part of S. Rep. No. 162, 89th Cong., 1st Sess. (1965), those
Senators agreed in "recogniz[ing] the necessity to eradicate once
and for all the chronic system of racial discrimination which has
for so long excluded so many citizens from the electorate because
of the color of their skin." 1965 U.S.C.C.A.N. 2540 (emphasis
added).
18
As noted, § 4(f)(2) extends voting rights protections to
"member[s] of a language minority group".
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Language minority citizens, like blacks throughout
the South, must overcome the effects of
discrimination as well as efforts to minimize the
impact of their political participation. The State
of Texas, for example, has a substantial minority
population, comprised primarily of Mexican
Americans and blacks. Evidence before the
Subcommittee documented that Texas also has a long
history of discriminating against members of both
minority groups in ways similar to the myriad forms
of discrimination practiced against blacks in the
South.
S. Rep. No. 295 at 25, 1975 U.S.C.C.A.N. at 791.19 Congress was
concerned about economic reprisal and intimidation against language
minorities, and specifically Mexican Americans, for exercising the
franchise; "[u]nderlying many of the abuses", the Judiciary
Committee stated, "is the economic dependence of these [language]
minorities upon the Anglo power structure." Id. at 26, 1975
U.S.C.C.A.N. 792-93.20
In amending the Act in 1975, Congress was concerned about
protecting language minorities, as it had blacks, as racial or
ethnic groups that had experienced appreciable prior discrimination
in voting. As an example of the existing vote dilution experienced
19
The Committee noted that Mexican Americans suffered from many
of the same barriers to political participation confronting blacks.
See S. Rep. No. 295 at 30, 1975 U.S.C.C.A.N. at 796 ("``invidious
discrimination and treatment in the fields of education,
employment, economics, health, politics and others.'" (Quoting
Graves v. Barnes, 343 F. Supp. 704, 728 (W.D. Tex. 1972), aff'd in
relevant part sub nom. White v. Regester, 412 U.S. 755 (1973)); id.
at 35, 1975 U.S.C.C.A.N. at 801 (comparing voting discrimination
problems faced by blacks pre-1965 to those that would justify
requiring preclearance to avoid vote dilution of language
minorities).
20
As an example, the Committee mentioned reports that "some
Mexican Americans in Uvalde, Texas are afraid their welfare checks
will be reduced because of their political activity." S. Rep. No.
295 at 26, 1975 U.S.C.C.A.N. at 792-93.
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by these groups, the Senate Judiciary Committee discussed use of
at-large school districts in Texas:
The at-large structure, with accompanying
variations of the majority run-off, numbered place
system, is used extensively among the 40 largest
cities in Texas. And, under state statute, the
countless school districts in Texas elect at-large
with an option to adopt the majority run-off,
numbered place system. These structures
effectively deny Mexican American and black voters
in Texas political access in terms of ...
representation.
S. Rep. No. 295 at 27-28, 1975 U.S.C.C.A.N. 794; see Uvalde
Consol., 625 F.2d at 556.
The 1982 amendments to § 2, which added subsection b and the
"results" language to subsection a, were adopted in response to the
Supreme Court's plurality holding in City of Mobile v. Bolden, 446
U.S. 55 (1980), and clarify that a results test, rather than an
intent requirement, would govern in § 2 vote dilution cases. See
Chisom, 111 S. Ct. at 2362-63; Gingles, 478 U.S. at 35, 43-44. The
Act's goal remained what it had been in 1965: to eliminate voting
discrimination on the basis of race or ethnicity. S. Rep. No. 417,
97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S.C.C.A.N. 177,
181. In commenting on the limitations of the Bolden intent test,
the Senate Judiciary Committee said:
[I]f an electoral system operates today to exclude
blacks or Hispanics from a fair chance to
participate, then the matter of what motives were
in an official's mind 100 years ago is of the most
limited relevance. The standard under the
Committee amendment is whether minorities have
equal access to the process of electing their
representatives.
Id. at 36, 1982 U.S.C.C.A.N. at 214 (emphasis added).
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Likewise, case law, including that already discussed, has
emphasized that access to the political process, aside from
population statistics, is the criteria by which a court determines
illegal or unconstitutional vote dilution. As noted, this court
decided in Zimmer that whether at-large districts
unconstitutionally diluted minority votes could not be decided "on
the basis of size of population alone." 485 F.2d at 1303.21 Judge
Goldberg has written for our court: "[I]t is not population but
access to the political process that determines whether an interest
group enjoys the full vigor of its political rights." Wallace v.
House, 515 F.2d 619, 631 (5th Cir. 1975), vacated mem., 425 U.S.
947 (1976). As the three judge court stated in Graves v. Barnes,
343 F. Supp. 704, 733 (W.D. Tex. 1972), aff'd in relevant part sub
nom. White v. Regester, 412 U.S. 755 (1972), "[the term] ``minority'
has traditionally been used in Civil Rights cases to denote a
racial or social group of people, not a numerical percentage." A
panel of the Eighth Circuit, albeit in a vacated opinion, agreed
with this viewpoint in Whitfield v. Democratic Party, 890 F.2d
1423, 1428 (8th Cir. 1989), opinion vacated and district court
judgment aff'd mem. by an equally divided court, 902 F.2d 15 (8th
Cir. 1990) (en banc), cert. denied, __ U.S. __, 111 S. Ct. 1089
(1991):
21
This court also stated: "[W]e cannot sanction the view that
minorities are to be exposed and subject to apportionment schemes
otherwise constitutionally infirm because the equal protection
clause can be watered down on the basis of population statistics
alone." 485 F.2d at 1304.
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The inquiry [into whether blacks should be
considered a minority for § 2 purposes] does not
stop with bare statistics. Section 2 is not
restricted to numerical minorities but is violated
whenever the voting strength of a traditionally
disadvantaged racial group is diluted. ... We
conclude, as a matter of law, that a numerical
analysis of the voting age population in a
particular geographic area does not automatically
preclude application of section 2 to a challenged
voting practice used in that area.
See also id. at 1434 (Hanson, J., concurring) ("Congress ... has
mandated that no state voting procedure can be allowed to stand
which ``results' in the dilution of the voting strength of a
traditionally disadvantaged racial group in ``any state' or
``subdivision' thereof." (Emphasis added.)).22
In Gingles, the question of whether a population majority,
voting age population majority, or registered voter majority
divested a racial or language minority ("protected class") of its
protected status was not presented, because in that case, black
voters were "a distinct population and registered-voter minority in
each challenged district." 478 U.S. at 38. The Court assumed in
its discussion that the protected class, while consisting of
"members of geographically insular racial and ethnic groups", id.
at 64, was, at the same time, the numerical minority; likewise, the
white, numerically superior group was the majority. See id. at 48
("the majority, by virtue of its numerical superiority"). And,
22
But compare Jeffers v. Clinton, 730 F. Supp. 196, 252 (E.D.
Ark. 1989) (three judge court) (Eisele, J., concurring and
dissenting) ("[A]s long as there are no legal barriers to
registration or voting, then it is my view that 50-plus percent
[voting age population] is a ``majority' and 50-minus percent
[voting age population] is a ``minority'."), aff'd mem., __ U.S. __,
111 S. Ct. 662 (1991).
- 17 -
while the Court discussed at several points the submergence of
minority voters in a white majority, it is unclear whether it was
discussing the paradigm of a vote dilution case or the facts of the
particular case before it. See, e.g., id. at 46 (discussing
submergence of black votes in a white majority); id. at 51 (to
establish white bloc voting, "the minority group demonstrates that
submergence in a white multimember district impedes its ability to
elect its chosen representatives"); id. at 68 ("vote dilution
through submergence in a white majority").
As stated, just as this court has rejected a per se rule that
population majority groups cannot experience vote dilution through
use of an at-large system, we hold that a protected class that is
also a registered voter majority is not foreclosed, as a matter of
law, from raising a vote dilution claim. First, the Voting Rights
Act protects racial and language minorities; it does not focus on
the vote dilution a group experiences merely because it is the
numerical minority. Second, the same reasons counseling that
population majorities may experience vote dilution suggest that the
same may occur where the protected class is a voting age population
majority, or even a registered voter majority. Minority groups
(protected classes) do not lose the protection of the Voting Rights
Act when they are no longer population or registered voter
minorities in a political subdivision; the Act is directed at their
status as a national racial or language minority. It is
conceivable that an election structure could dilute a registered
voter majority's vote or that low turnout, among a group registered
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in high percentages, could result from a Voting Rights Act
violation. Obviously, plaintiffs must prove it. And, third, the
Supreme Court has instructed that,
in evaluating a statutory claim of vote dilution
through districting, the trial court is to consider
the ``totality of the circumstances' and to
determine, based ``upon a searching practical
evaluation of the "past and present reality,"'
whether the political process is equally open to
minority voters. ``"This determination is
peculiarly dependent upon the facts of each case"'.
Gingles, 478 U.S. at 79 (quoting S. Rep. No. 417, supra, at 30 and
Rogers v. Lodge, 458 U.S. 613, 621 (1982)) (emphasis added). See
also Westwego Citizens for Better Gov't v. City of Westwego
(Westwego III), 946 F.2d 1109, 1120 (5th Cir. 1991).
The Court's instruction to employ a case-by-case approach
counsels against a per se rule that a protected class, that is also
a registered voter majority, cannot experience vote dilution
through use of an at-large district. As noted, this conclusion is
consistent with our court's statement in City of Woodville that
[a]s de jure restrictions on the right to vote
mercifully recede further into the historical past,
we should expect it to be increasingly difficult to
assemble a Zimmer-type voting rights case against
an at-large electoral district where a minority-
majority population exists. Such a case is not,
however, precluded as a matter of law.
881 F.2d at 1333.
B.
To hold that plaintiffs, even though a registered voter
majority, may bring a vote dilution claim only begins our inquiry.
As stated in § 2(b), in order to establish a § 2(a) violation,
plaintiffs must show "that the political processes leading to
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nomination or election ... are not equally open to participation by
members of [the protected class] 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." 42 U.S.C. § 1973(b). Section 2(b) provides in full:
A violation of subsection (a) of this section
is established if, based on the totality of
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(b) (underlining added). As discussed infra, in a
multimember or at-large challenge, where the protected class is
also the registered voter majority, the "totality of circumstances"
analysis becomes even more significant. That analysis consists of
an application of the earlier referenced Zimmer, or Senate Report,
factors. They include factors adversely affecting the protected
class's right to participate in the election process, such as:
discrimination, and its effects in areas such as education, health
and employment; voting practices or procedures; and prior election
success. Gingles, 478 U.S. at 36-37, 44-45; see East Jefferson
Coalition v. Parish of Jefferson, 926 F.2d 487, 491 (5th Cir.
1991). For example, in addition to the earlier quoted findings on
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electoral success, some of the totality of circumstances findings
in this case were:
While in the past there has been segregation in the
public schools and discrimination in the area
against Hispanics, the [District] has never been
segregated and there was no evidence of
discrimination against Hispanics by the [District].
According to the 1980 Census of Population, 41.6%
of the Hispanic population of the three county area
over the age of twenty-five were functionally
illiterate or had completed less than four years of
formal education. Anglos, on the other hand,
showed only a 4.1% functional illiteracy rate in
the same age group.
Only 20.5% of the Hispanics were graduates of high
school, as opposed to more than 64% of the Anglos.
Further, 81% of the residents of the [District]
with college degrees were Anglo.
Almost 37% of the Hispanic families in the three
county area were below the poverty level as
compared to only 11% of the Anglo families.
Further, just over 50% of the Hispanic families,
but only 16.8% of the Anglo families were below
125% of the poverty level.
We must now determine whether the alleged vote dilution is
attributable to the challenged election practice -- use of an at-
large district.23 The Supreme Court has instructed that:
Minority voters who contend that the multimember
form of districting violates § 2, must prove that
the use of a multimember electoral structure
operates to minimize or cancel out their ability to
elect their preferred candidates.
While many or all of the [totality of
circumstances] factors listed in the Senate Report
may be relevant to a claim of vote dilution through
submergence in multimember districts, unless there
is a conjunction of the following circumstances,
the use of multimember districts generally will not
23
At-large districts are not per se unlawful. E.g., Gingles,
478 U.S. at 48; Zimmer, 485 F.2d at 1304.
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impede the ability of minority voters to elect
representatives of their choice. Stated
succinctly, a bloc voting majority must usually be
able to defeat candidates supported by a
politically cohesive, geographically insular
minority group. ... These circumstances are
necessary preconditions for multimember districts
to operate to impair minority voters' ability to
elect representatives of their choice for the
following reasons. First, the minority group must
be able to demonstrate that it is sufficiently
large and geographically compact to constitute a
majority in a single-member district. ... Second,
the minority group must be able to show that it is
politically cohesive. ... Third, the minority must
be able to demonstrate that the white majority
votes sufficiently as a bloc to enable it -- in the
absence of special circumstances ... -- usually to
defeat the minority's preferred candidate.
Gingles, 478 U.S. at 48-51 (citations and footnote omitted;
underlining added); see also East Jefferson, 926 F.2d at 491. As
discussed below, a critical question in this case is whether the
plaintiffs must prove all three preconditions before the district
court considers whether, in light of the "totality of
circumstances", the challenged practice is dilutive.
We review under the clearly erroneous standard the district
court's findings concerning (1) the three Gingles preconditions,
(2) the factors relevant to the totality of circumstances analysis;
and (3) vote dilution (the ultimate finding). Westwego III, 946
F.2d at 1118 & n.13. It is well to revisit the holding in Gingles
on the standard of review, part of which was quoted earlier:
We reaffirm our view that the clearly-
erroneous test of Rule 52(a) is the appropriate
standard for appellate review of a finding of vote
dilution. As both amended § 2 and its legislative
history make clear, in evaluating a statutory claim
of vote dilution through districting, the trial
court is to consider the "totality of the
circumstances" and to determine, based "upon a
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searching practical evaluation of the ``past and
present reality,'" whether the political process is
equally open to minority voters. "``This
determination is peculiarly dependent upon the
facts of each case,'" and requires "an intensely
local appraisal of the design and impact" of the
contested electoral mechanisms. The fact that
amended § 2 and its legislative history provide
legal standards which a court must apply to the
facts in order to determine whether § 2 has been
violated does not alter the standard of review. As
we explained in Bose [Corp. v. Consumers Union of
U.S., Inc., 446 U.S. 485 (1984)], Rule 52(a) "does
not inhibit an appellate court's power to correct
errors of law, including those that may infect a
so-called mixed finding of law and fact, or a
finding of fact that is predicated on a
misunderstanding of the governing rule of law."
Thus, the application of the clearly-erroneous
standard to ultimate findings of vote dilution
preserves the benefit of the trial court's
particular familiarity with the indigenous
political reality without endangering the rule of
law.
478 U.S. at 79 (citations omitted; emphasis added). And, as is
more than well established, a finding of fact is clearly erroneous
"only when although there may be evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." Westwego
III, 946 F.2d at 1118.
1.
The district court found for plaintiffs on the first two
Gingles preconditions, Hispanics could constitute a majority in a
single member district and are politically cohesive; and the
District does not contest those findings. Therefore, the only
precondition in issue is the third -- whether white bloc voting
exists that usually operates to defeat the protected class's
preferred candidate. In considering this precondition, especially
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where the minority is also a majority under one or more criteria,
it is well to remember that "[t]he determinative question for a
Section 2 claim ... is not whether whites generally vote as a bloc,
but rather, whether such bloc voting is legally significant." City
of Woodville, 881 F.2d at 1332 (emphasis added).
As quoted in full in note 13 supra, the district court
concluded that unless all three Gingles preconditions were
established, it was not necessary to consider "the Zimmer factors
or other proof", citing Overton v. City of Austin, 871 F.2d 529,
538 (5th Cir. 1989). In Overton, however, as in other decisions by
this court stating that same rule, the protected class was not a
population, or other, majority. See, e.g., Westwego III, 946 F.2d
at 1116, 1120; East Jefferson, 926 F.2d at 491. On the other hand,
in City of Woodville, this court noted that this third Gingles
precondition may not be the appropriate test for analyzing vote
dilution claims in a jurisdiction with a protected class that is a
population majority. This is because in Gingles, as noted, the
Court was dealing with a case where black voters were a distinct
population minority and where the evil they complained of was
submergence in a white multimember district. Gingles discussed
the third precondition against this factual backdrop:
In establishing this last circumstance [legally
significant white bloc voting], the minority group
demonstrates that submergence in a white
multimember district impedes its ability to elect
its chosen representatives.
478 U.S. at 51; see also City of Woodville, 881 F.2d at 1333.
Whether this third precondition "was intended to address" a vote
- 24 -
dilution claim where the protected class is the majority, is, this
court noted, "a matter of speculation among several possible
interpretations." Id.24 This court did not linger long over this
question, noting immediately the overriding totality of
circumstances question:
The issue is, however, ultimately irrelevant
because irrespective of [Gingles'] meaning in a
case like this, Zimmer's holding clearly was not
abandoned when Congress amended Section 2.
Because we have already concluded that a
[Gingles] vote dilution claim is foreclosed here by
lack of black political cohesion, and we conclude
in the following discussion that a Zimmer totality
of circumstances dilution claim was not proven by
appellants, we need not opine further on this
puzzling aspect of [Gingles].
Id. at 1333-34 (emphasis added). The City of Woodville court had
stated earlier that "[t]he [Gingles] threshold analysis does not
replace the totality of circumstances inquiry, the ultimate
determination to be made under Section 2." Id. at 1330 n.4
(emphasis added).
In any event, for a case of the type presented here, Gingles
offers guidance on how the third precondition is to be applied.
The Court noted that "[t]he amount of white bloc voting that can
generally ``minimize or cancel' [minority] voters' ability to elect
representatives of their choice ... will vary from district to
district according to a number of factors". 478 U.S. at 56. Among
24
Another circuit has used the third Gingles prong to analyze
whether plaintiffs could make out a vote dilution claim where
whites were a registered voter minority. See Meek v. Metropolitan
Dade County, 908 F.2d 1540, 1547 (11th Cir. 1990), cert. denied, __
U.S. __, 111 S. Ct. 1108 (1991).
- 25 -
these factors is "the percentage of registered voters in the
district who are members of the minority group". Id. The Court
concluded that whether the evidence of racial bloc voting "rises to
the level of legal significance under § 2" will depend on the
factual circumstances of each case and that, accordingly, "there is
no simple doctrinal test for the existence of legally significant
racial bloc voting." Id. at 57-58.
We, as did the City of Woodville panel, find the third
precondition difficult to apply in a case such as this. But, like
that panel, we stay fixed on, and follow, the controlling totality
of circumstances path and do not tarry long, or wander off, in
pursuit of trying to fashion some alternative third (white bloc
voting) precondition for instances where the protected class is, in
fact, the majority.25 It is useful, however, to recall that a court
analyzes the legal significance of racial bloc voting in order to
25
For example, the Supreme Court established the three
preconditions for mounting a multimember challenge because, if the
plaintiffs lacked the potential to elect representatives in a
smaller, single member district, then such alternative, single
member districts, would not constitute relief, nor would the at-
large district be cause of § 2 injury. See, e.g., Gingles, 478
U.S. at 48-51, 48 n.15, 50 n.16. The District contends that the
at-large structure is to the Hispanic voters' advantage, asserting
that, because they are a voter majority, they can elect candidates
of their choice to each and every position on the District's Board.
But, because the Hispanic voters are such a majority, and because
of their arguable, if not proven, lack of electoral success, then
another factor is arguably inhibiting, if not preventing, such
success. Under various complex theories, it can be contended that
all three Gingles preconditions are applicable when the protected
class is a population, or other, majority; under other equally
complex theories, that the third precondition, concerning usual
effectiveness of white bloc voting, is not applicable. But, the
plain command of § 2, to follow the totality of circumstances,
brings this complex and intriguing puzzle to a merciful end; and we
resume our journey on its path.
- 26 -
answer a more ultimate question, namely, "the impact of the
contested structure or practice on minority electoral opportunities
``on the basis of objective factors.'" Gingles, 478 U.S. at 44.
Concomitantly, it is the plaintiffs' burden, in order to justify
relief, to "prove that the use of a multimember electoral structure
operates to minimize or cancel out their ability to elect their
preferred candidates." Id. at 48.
Underlying these functions of the court and the plaintiffs in
a multimember district vote dilution case is an inquiry into
causation -- whether the given electoral practice is responsible
for plaintiffs' inability to elect their preferred representatives.
Likewise, the Supreme Court, in measuring legally significant white
bloc voting, aims at determining whether it is racial voting
patterns, along with other objective factors, rather than some
other set of causes, that explain the lack of electoral success of
voters within the protected class. Accordingly, in analyzing
legally significant white bloc voting in a case where the protected
class is also a population, registered voter, or other majority,
the third Gingles precondition requires an inquiry into the causal
relationship between the challenged practice and the lack of
electoral success by the protected class voters. First, is voting
polarized along racial lines? Second, given that the protected
class voters are the registered voter majority in the district, is
their inability to elect their preferred representatives caused
primarily by racial bloc voting or, instead, by other circumstances
which the Act does not redress?
- 27 -
Concerning racial polarization in voting, the district court
found:
The analysis of the electoral evidence plaintiffs
presented indicates a very high degree of support
by Hispanics for Hispanic candidates. That is to
say that a Hispanic candidate running against an
Anglo opponent always receives the majority of the
Hispanic vote.
It did not make a finding concerning Anglo bloc voting, but the
District concedes it in its brief here. As noted, the district
court cited Town of Pecos City (pre-Gingles; used totality of
circumstances analysis) and "dictum" from City of Woodville to
conclude that "[w]here the protected group constitutes a majority
of the registered voters in an election district, any Anglo bloc
voting that might exist is not legally significant." (Emphasis
added.) But, as also noted, its subsequent, ultimate finding was
that the true cause for lack of Hispanic electoral success was not
unequal electoral opportunity, but rather the failure of Hispanic
voters to take advantage of that opportunity: "[T]his Court is
hesitant to intervene when those same Hispanics could readily solve
this problem by simply running candidates and turning out to vote."
Accordingly, notwithstanding the district court's absolute
underlying holding, its opinion should not be read to hold that, as
a matter of law, Anglo bloc voting cannot ever be legally
significant whenever the protected class also constitutes a
registered voter majority. As discussed, neither of the cases it
cited, City of Woodville and Town of Pecos City, so held. And, as
the Supreme Court has instructed, determining the legal
significance of white bloc voting is a factual inquiry that will
- 28 -
vary with the circumstances of each case. Gingles, 478 U.S. at 57-
58.
Although a registered voter majority class faces an obvious,
difficult burden in proving that their inability to elect results
from white bloc voting, they are not precluded, as a matter of law,
from seeking to prove such a claim. In deciding such a majority's
claim, the district court looks to the totality of circumstances.
In doing so, it need not base its finding on any particular Zimmer
factor or configuration of factors. "No one of the factors is
dispositive; the plaintiffs need not prove a majority of them;
other factors may be relevant." Westwego III, 946 F.2d at 1120.
See id. n.16 (listing the factors); Gingles, 478 U.S. at 45.
Notwithstanding some of its conclusions of law, as discussed above,
we disagree with the Hispanic voters' contention that the district
court failed to properly consider, or make findings on, the
totality of circumstances factors in this case, as discussed below.
In the alternative, and assuming arguendo that the district court
did not proceed beyond a conclusion that failure to satisfy the
third Gingles precondition ended the dispute, we hold that the
findings of fact by the district court satisfy the totality of
circumstances test and are, therefore, sufficient to uphold its
judgment, as also demonstrated below.
2.
In attempting to meet this burden of proof under the totality
of circumstances, the protected class -- that is also some form of
majority -- may attempt to prove, for example, that its registered
- 29 -
voter majority is illusory, as plaintiffs attempted here. They
introduced evidence of "soft" voting rolls that included residents
who had moved away and double listings for the same voter.
However, as the district court found, plaintiffs failed to provide
credible studies. Their evidence consisted mainly of anecdotal
testimony in which witnesses only identified a small number of
inaccuracies in voter lists per precinct. The plaintiffs also
failed to prove that "soft" voting rolls implicated Hispanics more
heavily than Anglos. The district court's findings concerning the
voting rolls were not clearly erroneous.
As another example, plaintiffs might be able to prove that a
registered voter majority was illusory, because of practical
impediments to voting. In this case, they attempted to prove that
a significant portion of the Hispanic population was unavailable to
vote on the date of the election, because of migrant work.
However, the district court did not credit that evidence, because
none was presented that reliably proved (1) the extent of the
migrant population at the time of the trial;26 or (2) what
percentage of migrant workers are registered voters. Plaintiffs
also failed to prove the inadequacy of absentee voting procedures
to allow migrant workers absent from the District to vote. The
district court's findings that the Hispanic registered voter
majority was not illusory are not clearly erroneous.
26
As noted, the plaintiffs relied on the 1976 GOMA study that
projected stable migrant populations only until 1981-86, whereas
the trial was conducted in 1990.
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As another example, plaintiffs could conceivably prove that,
despite a registered voter majority, low turnout at elections was
the result of prior official discrimination. E.g., Graves v.
Barnes, 343 F. Supp. at 733 ("the reason that the voter
participation among the Mexican-Americans is so low is that their
voting patterns were established under precisely the same sort of
discriminatory State actions that we have already found both
relevant and condemnatory with regard to the Dallas Blacks"
(emphasis in original)). Plaintiffs would face a difficult burden
of proof; but, as this court noted in Westwego Citizens for Better
Gov't v. City of Westwego (Westwego I), 872 F.2d 1201, 1212 (5th
Cir. 1989), "Congress and the courts have recognized that
``political participation by minorities tends to be depressed where
minority group members suffer effects of prior discrimination'".
(Quoting Gingles, 478 U.S. at 69). Here, plaintiffs introduced
evidence of disputed accuracy that, at some Board elections,
Hispanic turnout was roughly seven percentage points below that of
Anglos.27 However, they offered no evidence directly linking this
low turnout with past official discrimination. Obviously, a
protected class is not entitled to § 2 relief merely because it
turns out in a lower percentage than whites to vote. Further, the
high incidence of Hispanic registration in the District is
persuasive evidence that Hispanic voters are not deterred from
participation in the political process because of the effects of
27
As noted, the district court found the statistics unreliable
because of errors disclosed after appellees' analysis of the data.
- 31 -
prior discrimination, including unemployment, illiteracy, and low
income.
Accordingly, the district court's ultimate finding that the
cause of the Hispanic voters' lack of electoral success is failure
to take advantage of political opportunity, rather than a violation
of § 2, is not clearly erroneous.28
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
28
Because we affirm, we do not reach the lawyer disqualification
issue raised by the District (even assuming, in light of its
failure to take a cross-appeal, that we could do so).
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