Rodriguez v. Bexar County Texas , 385 F.3d 853 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 24, 2004
September 17, 2004
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_______________________
NO. 03-51119
_______________________
SERGIO J. RODRIGUEZ; JOSE G. FARIAS; DOROTEO M. MONTELONGO
RUBEN C. TEJADA; MAURICIO ARAGON; GEORGE AGUILAR;
MARCARIO R. RAMIREZ; TROY HITCHINGS; DIANE PATTERSON LOPEZ;
MARK OLIVARES; YOLANDA R. PACHECO; FRANK PACHECO;
RICHARD GIPPRICH; GRACE VASQUEZ; STEVE LOPEZ,
Plaintiffs-Appellees–Cross-Appellants,
versus
BEXAR COUNTY, TEXAS, ET AL,
Defendants,
BEXAR COUNTY, TEXAS,
Defendant-Appellant–Cross-Appellee.
Appeals from the United States District Court
for the Western District of Texas
Before JONES, DENNIS and PICKERING, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This case arises out of Bexar County’s redistricting of
its Justice of the Peace and Constable Precincts following the 2000
national census. The plaintiffs contended that the redistricting
plan impermissibly dilutes the votes of Hispanics in violation of
Section 2 of the Voting Rights Act and that it violates Article V,
Section 18 of the Texas Constitution. The district court ruled in
favor of the plaintiffs on their federal law claim and denied
relief on the state constitutional claim. After carefully
reviewing the evidence adduced at trial, we hold that there is no
legal or factual basis for the court’s finding of vote dilution and
that the plaintiffs are entitled to no relief under federal law.
We reverse in part, affirm in part and vacate the district court’s
injunctive relief.
I. BACKGROUND
In August 2001, Bexar County’s Commissioners Court
adopted, pursuant to the Texas Constitution, a redistricting plan
for its Justice of the Peace and Constable Precincts (“Justice
Precincts”). See TEX. CONST. art. V, § 18. The major changes
effected by the 2001 redistricting plan were the reduction of the
number of precincts from five to four, and the elimination of one
constable position. The plan eliminated Precinct Five, which
elected one Justice of the Peace and one Constable, but it added
one new Justice of the Peace position to Precinct One, thereby
leaving the total number of Justice of the Peace positions
unchanged. Constable Tejeda’s Precinct Five position was
eliminated. Under both the current and former redistricting plans,
there are one majority-black and two majority-Hispanic districts.
The population of now-extinct Precinct Five was transferred into
revised Precincts One and Two. The redistricting plan was
pre-cleared by the Department of Justice’s Civil Rights Division.
2
Just after elections had been held under the new plan,
the plaintiffs filed suit against Bexar County alleging that the
plan violated Sections 2 and 5 of the Voting Rights Act and
ARTICLE V, SECTION 18 of the Texas Constitution.1 The district court
conducted a bench trial and ruled in favor of the plaintiffs on
their Section 2 vote dilution claim. As a remedy, the court
ordered the results of the 2002 elections set aside,2 and the judge
reinstated the original five-precinct plan, and, inter alia,
ordered Bexar County to re-fund Constable Tejeda’s post. This
court stayed the court’s remedy pending Bexar County’s appeal.
II. DISCUSSION
A. Voting Rights Act Claim
What the plaintiffs precisely assert is that the
elimination of Precinct Five and its consolidation in the other
redrawn districts has diluted the influence of Hispanic votes in
Precinct Two. It is surely no accident, however, that former
Constable Tejeda, whose position was eliminated in the
redistricting, is the lead plaintiff.
Section 2 of the Voting Rights Act proscribes vote
dilution whereby a class of citizens has “less opportunity than
1
The Section 5 claim was rejected by a three-judge panel in April 2003
and is no longer at issue.
2
Setting aside an election is a drastic remedy. See Bell v.
Southwell, 376 F.2d 659, 662 (5th Cir. 1967); and Cook v. Luckett, 735 F.2d 912,
921-22 (5th Cir. 1984). Such a remedy should only be imposed where timely pre-
election relief is either denied or precluded. See Toney v. White, 488 F.2d 310,
313-315 (5th Cir. 1973) (en banc); and Saxon v. Fielding, 614 F.2d 78, 79-80 (5th
Cir. 1980).
3
other members of the electorate to participate in the political
process and to elect representatives of their choice.” 42 U.S.C.
§ 1973. This court applies a two-step framework in analyzing
Section 2 claims. NAACP v. Fordice, 252 F.3d 361, 365 (5th Cir.
2001). First, plaintiffs challenging a redistricting plan must
satisfy the preconditions for a Section 2 claim set forth by the
Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct.
2752, 92 L. Ed. 2d 25 (1986).3 Id. Second, the plaintiffs must
prove that based on the “totality of the circumstances,” the
challenged plan results in the denial of the right to vote based on
color or race in violation of Section 2. Fordice, 252 F.3d at 366.
To meet the threshold Gingles test, the plaintiffs bear the burden
to show, by a preponderance of the evidence, that: (1) the
affected minority group is sufficiently large and geographically
compact to constitute a voting age majority in a district; (2) the
minority group is politically cohesive; and (3) the majority votes
sufficiently as a bloc that it is able — in the absence of special
circumstances — usually to defeat the minority group’s preferred
candidate. Id. (citing Gingles, 478 U.S. at 50-51, 106 S. Ct. at
3
As the district court recognized, the one-person, one-vote
requirement of Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663
(1962), does not apply to judicial districts like Justice Precincts. Wells v.
Edwards, 347 F. Supp. 453, 454 (M.D. La. 1972) aff’d 409 U.S. 1095 (1973).
However, the district court, at various points in its opinion, expressed concern
regarding the application of the Gingles threshold test to single-member
districts that are not required to comply with the one-person, one-vote
requirement. Since Section 2 includes judicial selections, Chisom v. Roemer, 501
U.S. 380, 404, 111 S. Ct. 2354, 2369, 115 L. Ed. 2d 348 (1991), we are at a loss
as to what other standard than Gingles might apply.
4
2766-67).
In reviewing a district court’s decision regarding an
alleged violation of Section 2 of the Voting Rights Act, this court
analyzes the legal standards applied by a district court de novo,
id. at 364, and the factual findings for clear error. Gingles
emphasized that the proper assessment of vote dilution claims 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.” 478 U.S. at 79, 106 S. Ct. at 2781. The
clear error standard precludes reversal of a district court’s
findings unless we are “left with the definite and firm conviction
that a mistake has been committed.” Anderson v. City of Bessemer,
470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985).
We may not reverse for clear error so long as the district court’s
findings are “based on a plausible account of the evidence
considered against the entirety of the record.” Fordice, 252 F.3d
at 365.
The parties do not dispute that the plaintiffs satisfy
the first two prongs of the Gingles threshold inquiry: Hispanics
are sufficiently numerous and geographically compact to constitute
a voting age majority in Justice Precinct Two, and they are
politically cohesive. The evidence adduced before the district
court focused on Gingles’ third inquiry, i.e., the ability of
Hispanics to elect their preferred candidate under the 2001 plan in
5
reapportioned Justice Precinct Two.4 The plaintiffs’ argument is
that although Precinct Two retains a majority of Hispanic
residents, the majority is narrower than that in former Precinct
Five and, having been diluted, is barely sufficient to ensure
Hispanic electoral success. Since neither party presented
significant evidence regarding the other redistricted precincts,
our analysis is confined to Justice Precinct Two.
The critical question before the district court, and now
on appeal, is whether the plaintiffs met their burden of proof on
the third Gingles factor. Lacking such proof, the plaintiffs
cannot succeed. See, e.g., Magnolia Bar Ass’n, Inc. v. Lee, 994
F.2d 1143, 1148 (5th Cir. 1993).
After carefully reviewing the record, and being cognizant
of the deference owed to the district court, we have concluded that
the district court made substantial legal and factual errors in
evaluating the plaintiffs’ evidence. Principally, but not solely,
the court erred in ignoring the defendants’ reconstituted election
analysis, and it erred in applying the “special circumstances” test
to ignore the consistent electoral victories of Hispanic candidates
in Precinct Two. As a result, the district court clearly erred in
ultimately concluding that the 2001 redistricting plan
impermissibly diluted the Hispanic vote in Bexar County.
4
All references in this opinion to Justice Precinct Two, unless
otherwise noted, refer to the newly redistricted Justice Precinct Two.
6
1. Reconstituted Election Analysis
Because, at the time of trial, only one election had been
held within the new precinct boundaries created by the 2001 plan —
the 2002 election for Bexar County Constable in Justice Precinct
Two — experts for both sides agreed that it was appropriate to look
to exogenous races to determine whether racial bloc voting took
place in the revised Justice Precinct Two.5 In doing so, the
experts employed reconstituted election analysis to evaluate the
results of 12 exogenous races for other elected posts that took
place in 2002.6 Both experts agreed that these races were the most
relevant to determining whether Anglos voted as a bloc usually to
defeat the Hispanic candidate of choice in Precinct Two.7 In
addition, the plaintiffs’ expert responded to the defendant’s
expert’s analysis of other prior election cycles and agreed that
the results from the 2000 elections also had substantial probative
value. Not surprisingly, the expert opinions conflicted on the
5
This court has repeatedly endorsed the analysis of exogenous
elections in Section 2 vote dilution cases. See Rangel v. Morales, 8 F.3d 242,
247 (5th Cir. 1993); NAACP v. Fordice, 252 F.3d 361, 370 (5th Cir. 2001).
6
See Johnson v. Miller, 864 F. Supp. 1354, 1391 (S.D. Ga. 1994) (per
curiam) (“Statistically speaking, reconstituted election results from precincts
within a certain district, actual prior election results from a certain district,
and frequency distributions are the primary methods used to estimate the
percentages needed to give [minority] voters an equal opportunity to elect a
candidate of their choice.”) aff’d Miller v. Johnson, 515 U.S. 900, 115 S. Ct.
2475, 132 L. Ed. 2d 762 (1995).
7
The defendant’s expert, Dr. John R. Alford, also examined reconsti-
tuted election results from nine races from the 2000 general election and eight
races from the 1998 general election, as well as two races from the 1998
Democratic primary election and seven races from the 2002 Democratic primary
election. See Ex. D-9.
7
critical point. Compare Ex. D-9 with Exs. P-108, P-146. The
district court, noting these contrary conclusions, determined that
the reconstituted election analyses presented by both sides were
insufficient and unpersuasive, and opted to consider other evidence
to make its determination as to the third Gingles factor.
The district court discarded the reconstituted election
evidence offered by both parties for two reasons. First, the court
found the reconstituted election methodology to be inherently
unreliable because including or excluding what the district court
believed were a “handful” of “over and under” ballots could lead to
substantially different conclusions on the ultimate question of
racial bloc voting. In addition, the court found that “special
circumstances” in both the 2000 and 2002 election cycles made these
elections unreliable for the purpose of evaluating the validity of
the 2001 redistricting plan. Unfortunately, the district court
clearly erred in both determinations.
Reconstituted election analysis is a relatively simple
method that extracts actual election results from a variety of
statewide and local races that subsume the area being analyzed and
determines, precinct-by-precinct within the new district, the
racial composition of the vote and the “winner” within the new
district. This method of aggregation allows a researcher to
determine how an individual candidate performed within the
boundaries of the target district even though the actual election
covered a different geographical area.
8
The defendant’s expert, Dr. John Alford, employed this
standard method in examining 13 races from the 2002 general
election. The plaintiffs’ expert, Dr. Henry Flores, also employed
a similar method — with one crucial difference: in calculating the
percentage of the vote received by each candidate, Dr. Flores used
the correct numerator — the total votes cast for each candidate
within the boundaries of Justice Precinct Two. However, in
calculating the appropriate denominator, Dr. Flores did not use the
total votes cast in each race within Precinct Two, but rather used
the total ballots cast in Precinct Two in the overall election.
This approach systematically misrepresents the percentage of the
vote obtained by each candidate. It does so by improperly
including “over-votes” and “under-votes” in the denominator of the
equation. Over-votes are ballots where a voter casts more than one
vote for an office and thus invalidates his vote for that office.
Under-votes are those ballots where a voter does not mark any
candidate for a given office. Neither over-votes nor under-votes
“count” toward determining victory in a race because they
represent, respectively, either a “spoiled ballot” or an uncast
ballot for that particular race. The ballot remains valid, of
course, for those races and only those races in which it was
properly marked. But to use such ballots in the denominator for
calculating the percentage of the vote received in a given race,
when the votes from those ballots would not have affected the race,
is simply incorrect and results in skewed and inaccurate vote
9
percentages. Dr. Flores’s report erred in this manner. Based on
the inaccurate percentages he calculated, Dr. Flores concluded that
only eight of the 13 Hispanic candidates of choice “won” their
races within the boundaries of Justice Precinct Two.8
At trial, Bexar County’s counsel carefully dissected this
error, leading Dr. Flores to admit, contrary to his written report,
that the proper calculation would have shown that 12 out of 13
Hispanic candidates of choice actually “won” the exogenous
elections within the confines of Justice Precinct Two.9 ROA vol.
11 at 81.
To its credit, the district court recognized this fatal
flaw in Dr. Flores’s methodology. However, instead of simply
discarding Dr. Flores’s flawed findings and relying on the proper
calculations made by the defendant’s expert, the district court
8
In using the term “won,” Dr. Flores apparently means that the
candidate obtained more than 50 percent of the votes cast based on his flawed
calculation methods. Beyond the simple arithmetic error made by Dr. Flores, the
use of a 50 percent threshold may, in some cases, misrepresent the actual
percentage necessary to win because it fails to account for the potential
presence of a third candidate. As a result, even if Dr. Flores had employed the
proper denominator, his approach would not accurately indicate which candidate
actually “won,” because while Dr. Flores is correct that a candidate “wins” if
he obtain more than 50 percent of the vote in a two-person, head-to-head race,
a candidate may win a three-way race with as little as 34 percent of the vote
(assuming the other two candidates split the vote evenly). For example, in two
of the races analyzed by both experts in the 2002 election — the Governor’s race
and the race for Court of Criminal Appeals, Place 3 — the winning candidate
within new Justice Precinct Two, i.e. the candidate who got the most votes within
the target area, nonetheless garnered less than 50 percent of the total votes
cast in that race within the target area. See Ex. D-9. In this sense,
Dr. Flores’s report not only improperly derives the candidates’ vote percentages,
but also misrepresents the threshold portion of the vote necessary to win in a
given race.
9
Indeed, even the one loss was extremely close, with a difference of
only 26 votes out of a total of 79,888 votes cast in that race. See Ex. D-9,
table 4.
10
held that Dr. Flores’s errors demonstrated “how easily reconsti-
tuted election analysis can be abused under the best of
circumstances.” As a result, the district court found the
“evidence generated from these reconstituted election analyses to
be largely unpersuasive.” The district court then inexplicably
threw out the defendant’s expert evidence based on the flawed
methodology employed by the plaintiffs’ expert.
The district court first erred in suggesting that the
difference between the two expert analyses arose from the inclusion
of a “handful of ballots.” To take just one example, in the Garza-
Wilborn race for Justice Precinct Two Constable, Dr. Flores used
the total ballots cast in the election — 83,968 — as the
denominator in his equation to determine that Garza received 44.6
percent of the vote. See ROA vol. 11 at 76.10 However,
Dr. Flores’s methodology improperly included 6,372 under-votes and
24 over-votes from that election. Id. These votes, taken
together, constitute 7.6 percent of the ballots used in the
denominator of Dr. Flores’s equation. Omitting these uncounted
ballots from the calculation, as should have been done, reveals
that Garza actually obtained 48.3 percent of the vote. See Ex.
D-9. Thus, we disagree that the mistakenly included ballots were
10
The exact numbers contained in defense exhibit D-13 vary slightly
from the numbers in the trial transcript apparently because of the way that state
law requires early votes from small precincts to be reported. These differences
were discussed at trial and do not make a significant difference in the
percentages discussed above. See ROA vol. 11 at 74-76, Ex. D-13.
11
a mere “handful.” On the contrary, Dr. Flores’s calculation errors
were significant and systematic, and produced a substantially
flawed analysis. These erroneous results do not cast doubt on the
methodology of reconstituted election analysis, but on the quality
of the particular calculations.11
The district court, though appropriately disturbed at the
serious errors made by the plaintiffs, chose to toss out all of the
reconstituted election evidence put forward by both sides. But as
the defendant’s brief points out, such an approach is similar to
determining that mathematics is a flawed science simply because one
expert testifies that two plus two is four and another expert
testifies that two plus two is five. The court should have
considered Dr. Flores’s errors as undermining the weight of his
testimony, not that of the defendant’s expert. See Rollins v. Fort
Bend Indep. Sch. Dist., 89 F.3d 1205, 1219 (5th Cir. 1996) (holding
that numerous errors by an expert witness can make all of that
expert’s findings and theories unreliable). An independent
assessment of the validity of the defendant’s expert testimony
11
We note that this is not the first time that this court has found
substantial errors in Dr. Flores’s work. See Rollins v. Fort Bend Indep. Sch.
Dist., 89 F.3d 1205, 1214-15 (5th Cir. 1996) (“FBISD demonstrated inconsistencies
in Dr. Flores’s data and showed that some of Dr. Flores’s methodologies made his
results inaccurate or unreliable. Dr. Flores manually corrected exhibits while
testifying and admitted to other errors FBISD and the district court identified.
Dr. Flores’s testimony also indicated that his analysis was incomplete and
slanted in support of the black plaintiffs. . . . Dr. Flores . . .[was] forced
to concede that several of [his] opinions were either suspect or incorrect.”).
In Rollins, this court upheld the district court’s decision to discredit
Dr. Flores’s findings and theories on the basis of numerous errors in his
analysis. Id. at 1219.
12
would then have shown that analysis completely uncontradicted in
its findings that the Hispanic candidate of choice obtained more
votes within new Justice Precinct Two in 12 out of the 13 races
identified by both experts as central to the court’s Gingles
analysis. Moreover, when the 2000 general election is included in
this analysis, the defendant’s uncontradicted expert testimony
indicates that the Hispanic candidate of choice would have won 21
of the 22 most recent races within Justice Precinct Two.
These results contradict the district court’s deter-
mination that the Anglo bloc voting serves usually to defeat the
Hispanic candidate of choice in Justice Precinct Two. The district
court’s decision to disregard these results constitutes clear
error. This error prevented the district court from considering
the data that both sides agreed were the most probative on the
third Gingles factor, and thus, strikes at the core of the district
court’s ultimate conclusions.
2. Evaluating “Special Circumstances”
In its initial opinion, the district court acknowledged
that both sides focused on expert testimony regarding the 2000 and
2002 elections and concurred on the importance of these elections
in proving the legality of the 2001 redistricting plan.
Nevertheless, the court held that these elections exhibited
“special circumstances” that made “an accurate extrapolation of the
redistricting plan’s effect . . . impossible.” The district court
13
identified as the relevant “special circumstances” the presence of
a Hispanic candidate, Tony Sanchez, a Democrat running for Governor
in 2002, and the presence of George W. Bush, at the time the
Republican Governor of Texas, as a candidate for President in 2000.
The Supreme Court has cautioned that “special circum-
stances . . . may explain minority electoral success in [an
otherwise] polarized contest,” and that such aberrational victories
do not necessarily disprove racial vote dilution. Gingles, 478
U.S. at 57, 106 S. Ct. at 2770. The district court, however,
misapplied the special circumstances analysis in a manner contrary
to that contemplated by the Supreme Court and this circuit’s
precedents.
As explained in Gingles, the special circumstances
analysis was designed to prevent defendant jurisdictions from
arguing that a minority candidate’s occasional victory in an
otherwise racially polarized electorate defeats a vote dilution
claim. Id. To this end, the Court listed several factors that
might contribute to the unusual success of an individual minority
candidate — the absence of an opponent, incumbency, or utilization
of “bullet voting” procedures. Id. While not exhaustive, this
list comprises circumstances that might explain a victory for a
minority candidate in a polarized district. This circuit
accordingly holds that while special circumstances may be used to
“explain a single minority candidate’s victory,” the Supreme
Court’s comment regarding such circumstances “cannot be transformed
14
into a legal standard which requires the court to force each and
every victory of several minority candidates to fit within a
prescribed special circumstance.” Rollins, 89 F.3d at 1213
(emphases added). The Rollins court went on to note that “[e]very
victory [of a minority candidate] cannot be explained away as a
fortuitous event.” Id.
In the present case, the district court employed the
Gingles special circumstances analysis not to explain the victory
of an individual minority candidate, but rather to explain away the
consistent success of Hispanic candidates in a number of races over
two general election cycles. This was clear error. As noted
above, reconstituted election analysis — performed with the proper
arithmetic — demonstrates that the Hispanic candidate of choice won
21 of 22 contests during the 2000 and 2002 general elections within
Justice Precinct Two.
Moreover, even if “special circumstances” could be used
to explain away all of the minority candidate victories, the
evidence fails to provide any basis for such a finding in this
case. The district court reasoned that in the 2000 elections,
George W. Bush’s candidacy for President likely affected both
Hispanic and overall voter turnout, but the court failed to explain
what the “special circumstances” of Bush’s candidacy might have
been. Without evidence, it is impossible to tell whether Bush’s
candidacy helped or harmed Hispanic-favored candidates in 2000. We
do not doubt that Bush’s candidacy had some effect on turnout
15
within Texas. The plaintiffs’ expert believed that Hispanic
election success was more difficult in 2000. However, because no
other evidence described the magnitude or nature of this effect,
the court clearly erred in speculating how Bush’s candidacy
explained the overwhelming success of Hispanic-favored candidates.12
Similarly, the district court clearly erred in
determining that the presence of Tony Sanchez at the top of the
ticket in 2002 was a special circumstance that explained the
success of Hispanic candidates in that election cycle. No evidence
presented at trial tended to indicate that Hispanic candidates were
more likely to succeed as a result of Sanchez’s candidacy.
Instead, the plaintiffs’ expert testified that he had not conducted
a study regarding the effect of Sanchez’s candidacy, or what he
termed “racist” anti-Sanchez ads, on Hispanic turnout, and he
opined that there was “no way of telling the effects of how those
ads played out.” ROA vol. 11 at 135-36. Indeed, the plaintiffs’
expert went on to testify specifically that Sanchez’s candidacy and
the related ads “could have increased turnout on both sides.” Id.
at 136.
12
In contrast, the plaintiffs’ expert testified that the 2000 election
represented an extremely favorable electoral situation for Republicans. See ROA
vol. 11 at 67. Given that the Hispanic candidate of choice — according to both
parties’ experts — is the Democratic candidate, regardless of ethnicity, it also
makes little sense to use this “special circumstance” to explain the success of
Hispanic-favored candidates. See id. at 64 (plaintiffs’ expert agreeing with
defense counsel’s assertion that “in Precinct 2 general elections, the Hispanic
candidate of choice is almost certain to be a Democrat” and that “Hispanic
Republicans were not the candidate[s] of Hispanic choice. . . . Hispanics, when
given a choice, voted for the Democrat[.]”).
16
The lack of supporting evidence wholly undermines the
district court’s finding that these elections were not sufficiently
reliable to provide any insight into the polarized voting inquiry.
The district court’s finding in this regard is clearly erroneous.
Because they are not vulnerable to a special
circumstances attack and were not otherwise disputed, the 2000 and
2002 election results, as properly reconstituted, have substantial
probative value on the question whether the plaintiffs met the
third Gingles precondition. The evidence of overwhelming electoral
success for Hispanic-favored candidates over a wide range of
offices and in two separate general election cycles, in both a
Presidential and a non-Presidential election year, leads to the
firm and definite conclusion that the district court clearly erred
in finding that Anglos vote as a bloc usually to defeat the
Hispanic candidate of choice within new Justice Precinct Two.
Recent voting patterns and trends suggest that Hispanics will
continue to enjoy substantial success in electing the candidates
they support in Justice Precinct Two.13
3. Other Statistical Evidence
After erroneously discarding the probative reconstituted
election analyses, the district court purported to rely on the
13
While statistical evidence is not always conclusive in a racial
polarization inquiry, where the record supports no other conclusion than that
suggested by the statistical evidence, such evidence has substantial probative
value. Cf. Clark v. Calhoun County, 88 F.3d 1393, 1397-98 (5th Cir.), reh’g
denied, 95 F.3d 1151 (1996) (finding racially polarized voting where the
plaintiffs provided statistical evidence showing such polarization and the trial
record did not support a contrary finding).
17
“homogenous precinct analysis” conducted by the plaintiffs’ expert.
At trial, the plaintiffs submitted expert reports and testimony
developed using both regression and homogenous precinct analysis.
See, e.g., ROA vol. 11 at 22-24. The homogenous precinct analysis
conducted by the plaintiffs’ expert selected predominantly Hispanic
and Anglo precincts14 from within Justice Precinct Two and examined
the performance of the 13 candidates who ran in the 2002 elections.
Id. We need not consider this homogeneous precinct analysis
further, however, because, despite its statements to the contrary,
the district court did not actually rely on this analysis.15
The court’s opinion makes clear that it confused the
plaintiffs’ homogenous precinct analysis with the separate analysis
conducted by the plaintiffs’ expert of some 115 jurisdictions16 that
had been redistricted on a single member concept and which
14
The plaintiffs’ expert examined nine precincts in Bexar County with
Hispanic voter registration over 90 percent and (because only one precinct
consisting of 14 total registered voters had Anglo voter registration over 90
percent) eight precincts with Anglo voter registration over 80 percent. ROA vol.
11 at 22-24.
15
This is perhaps not surprising given that the district court had
(erroneously) held that the 2002 elections used in the plaintiffs’ homogenous
precinct analysis were not reliable because of the presence of “special
circumstances.”
16
Dr. Flores’s expert report indicates that he examined approximately
200 different electoral districts in the San Antonio metropolitan area. Ex.
P-146, ¶ 4. However, plaintiffs’ trial exhibits that list the jurisdictions
examined only show a total of 154 jurisdictions, 39 of which are City Council
Districts that fall outside the 1992-2001 timeframe that the plaintiffs’ expert
analyzed. Exs. P-14, P-15; ROA vol. 11 at 26. Thus, the data submitted at trial
appear to indicate that the plaintiffs’ expert only examined 115 districts within
the relevant timeframe.
18
contained varying percentages of Hispanic voters.17 These election
jurisdictions consisted of San Antonio city council districts,
state house and senate districts, state board of education
districts, and U.S. Congressional districts. In each of these
election jurisdictions, the plaintiffs’ expert examined the overall
population and voting age population by racial group, as well as
the “Spanish-surname”18 voter registration. See ROA vol. 11 at
25-26; Pls. Ex. 14-15. In addition, the plaintiffs’ expert focused
on the success rates of Hispanic candidates who ran for election in
these districts. See ROA vol. 11 at 25-52. The expert’s analysis
of single member districts is completely separate and distinct from
the homogenous precinct analysis.
17
The district court’s confusion in this regard is somewhat
understandable given that on direct examination, the plaintiffs’ expert testified
regarding the results of his homogenous precinct analysis immediately before and
after presenting the results of his additional analysis regarding these
redistricted single member districts. See ROA vol. 11 at 22-24, 53-56.
18
The use of “Spanish-surname” registration is novel and highly
problematic. At least one district court has recently noted the problems
associated with “Spanish-surname analysis” because of its tendency to misidentify
Hispanic persons as non-Hispanic and vice-versa. See United States v. Alamosa
County, 306 F. Supp. 2d 1016, 1022 (D. Colo. 2004) (Krieger, J.). That court
held that the expert testimony based on Spanish-surname data, while probative,
should be afforded reduced weight, and noted that self-identification data
provides a more reliable means of determining ethnicity. Id. Both parties in
this case presented Spanish-surname data and neither argues that the district
afforded too much weight to these data. However, part of the testimony at trial,
as well as some of the discussion in the briefs before this court, focused on the
fact that the 2002 race for Constable in Justice Precinct Two took place between
two Hispanics named Garza and Wilborn. The fact that Wilborn, a Hispanic with
a “non-Hispanic” name, would not have been counted in the Spanish-surname
registered voter data presented by either party, gives us pause as to the
reliability of such data. We share the concerns raised by the district court in
Alamosa County regarding the use of Spanish-surname data, and agree that without
a strict showing of its probativeness, Spanish-surname data are disfavored, and
census data based upon self-identification provides the proper basis for
analyzing Section 2 vote dilution claims in the future.
19
Based on his examination of the success rates of Hispanic
candidates in Bexar County, the plaintiffs’ expert confirmed, at
least in his mind, the conclusion he had reached based on his
earlier homogenous precinct analysis that examined the results of
the 13 reconstituted elections from the 2002 general election. Dr.
Flores concluded that, for a Hispanic candidate to succeed in Bexar
County, the “Spanish-surname” registered voter population must
exceed 50 percent in a given election jurisdiction. Accepting this
conclusion, the court held that because
new Justice Precinct Two [does] not contain a percentage
of registered voters in excess of 50 percent . . . the
Court is in agreement with Dr. Flores that Anglo voters,
in the absence of special circumstances, can and will
vote as a bloc in new Precinct Two usually to defeat the
candidate chosen by Hispanics . . . [and therefore] the
third prong of Gingles is satisfied.
The district court’s determination in this regard is
clearly erroneous for two reasons. First, we know of no caselaw
that simply correlates minority candidate success rates, absent any
additional statistical analysis, with a minimum threshold of
minority voter registration that automatically satisfies Gingles’
third prong. Indeed, in our view, such an approach cuts at the
heart of Gingles and its progeny, which prohibit courts from
presuming racial bloc voting and require the plaintiffs to prove
that Anglos actually vote as a bloc usually to defeat the minority
candidate of choice. See Growe v. Emison, 507 U.S. 25, 41, 113
S. Ct. 1075, 1085, 122 L. Ed. 2d 388 (1993) (“a court may not
presume bloc voting even within a single minority group”) (citing
20
Gingles, 478 U.S. at 46, 106 S. Ct. at 2764). Because the district
court discounted the reconstituted election evidence submitted by
both parties,19 it had no information that would have shed any light
on whether Anglo voters in these areas actually vote as a bloc
usually to defeat the Hispanic candidate of choice. Rather, in
relying only upon the remaining data submitted by the plaintiffs in
support of their expert’s conclusion, the district court
impermissibly presumed Anglo bloc voting against Hispanic
candidates in any and all districts where Hispanic voter
registration is below 50 percent.
Moreover, even if this method of analysis were
appropriate, the data relied upon by the district court are
ambiguous at best on the question whether 50 percent is the minimum
threshold for Hispanic voter registration in order to assess
Section 2 compliance. The data shed little, if any, light on the
real question in this case, i.e., whether the 48 to 49 percent20 of
19
This category includes the regression and homogenous precinct
analysis actually conducted by the plaintiffs’ expert that analyzed 13 races from
the 2002 election cycle. See ROA vol. 11 at 22-24.
20
At trial, there was some dispute and/or confusion as to the
percentage of Hispanic voters in new Justice Precinct Two. The plaintiffs’
expert initially testified that 48.5 percent of the registered voters were
Hispanic, but then later testified that 48.2 percent of the registered voters
were Hispanic. See ROA vol. 11 at 13 (“Well, currently, [Justice] Precinct 2,
the way it was redistricted, has 48.5 percent Hispanic registered voters.”); See
ROA vol. 11 at 24 (“You compare that to new [Justice] Precinct 2 and the – where
the registration is 48.2 percent . . .”). The defendant’s expert, on the other
hand, testified that the Hispanic registration was 49 percent by 2002. See ROA
vol. 12 at 52 (“Q: Now, let’s go to the 2002 general election. And first,
what’s happened to the Spanish surname registered voter level? A: By 2002,
you’re at 49 percent.”). The district court found that Hispanic voters made up
48.8 percent of registered voters in new Justice Precinct Two. Because the
relatively minor differences in these numbers do not substantively alter our
21
Hispanic voters in Justice Precinct Two is sufficient that they
have an opportunity to elect the candidate of their choice. As
Bexar County points out, of the 115 districts examined by
Dr. Flores, 71 have over 50 percent Hispanic registered voters.
See Exs. P-14, P-15. It is undisputed that when the percentage of
Hispanic registered voters exceeds 50 percent, Hispanics have a
clear opportunity to elect their candidates of choice in those
districts. But, the question before the district court was whether
a lower percentage of registered voters was sufficient to afford
such an opportunity. Of the remaining 44 districts, 41 had less
than 32 percent Hispanic registration and 26 of these had less than
20 percent Hispanic registration. Id. Evidence regarding such
heavily non-Hispanic districts does not carry the plaintiffs’
burden as to Precinct Two. In fact, in the only relevant set of
three districts where Hispanic voter registration lay between 48
and 49 percent, a Hispanic candidate was actually elected.21 While
the experts disagreed as to the reasons for the success of the
Hispanic candidate in this below-50 percent district, the results
undermine Dr. Flores’s finding that 50 percent Hispanic voter
registration is a “magical number” below which the third Gingles
analysis, and neither party directly argues that the district court clearly erred
in its factual finding, we accept, for the sake of argument, the district court’s
calculation.
21
These “three districts” all represent the same state House district
at different points in time. Under Dr. Flores’s methodology, these districts
were considered separate and distinct.
22
factor may be presumed to be satisfied.22
For the foregoing reasons, the only supporting evidence
referenced by the district court on the third Gingles prong was
actually non-probative, and the court’s finding was therefore
clearly erroneous.23
4. Plaintiffs’ Burden of Proof
A final observation is in order concerning plaintiffs’
burden of proof of the third Gingles factor. Elections for the
three offices in Justice Precinct Two — one constable and two
justices of the peace — are held in November of even-numbered
years, with two positions on the ballot in presidential election
years and one position on the ballot in non-presidential election
22
Further undercutting Dr. Flores’s conclusion is his admission at
trial that roughly between 25 and 33 percent of Anglo voters would cross over to
support the Hispanic candidate of choice within new Justice Precinct Two. See
ROA vol. 11 at 65. In Gingles, the Supreme Court made clear that crossover
voting by the majority racial group is relevant to the racial polarization
inquiry. See Gingles, 478 U.S. at 56, 106 S. Ct. at 2269. In applying the
Gingles factors in the context of a racial gerrymandering case, the Supreme Court
more recently declined to overturn a district court’s determination that
insufficient evidence of racial polarization existed where Anglos crossed over
to vote for the minority candidate of choice at rates ranging between 22 and 38
percent. See Abrams v. Johnson, 521 U.S. 74, 92-93, 117 S. Ct. 1925, 1936-37,
138 L. Ed. 2d 285 (1997). In the present case, the district court did not even
discuss Dr. Flores’s acknowledgment of a relatively substantial portion of Anglo
voters’ support for Hispanic candidates. See ROA vol. 11 at 65.
23
Because we hold that the district court erred in determining that 50
percent was an appropriate threshold below which the third Gingles factor was
satisfied, we need not reach the question whether the district court was correct
in holding that the post-trial submission of Bexar County — indicating that the
Hispanic registration in new Justice Precinct Two exceeded 50 percent — “proves
nothing.” However, we do note that even had the district court’s determination
regarding the threshold percentage been correct, such evidence would strongly
indicate that no relief was warranted, given that the primary factor relied upon
by the district court in finding liability - Hispanic voter registration below
50 percent - ceased to exist. Cf. Westwego Citizens for Better Gov’t v. City of
Westwego, 906 F.2d 1042, 1045 (5th Cir. 1990) (remanding to the district court
for consideration of post-trial election results that related to the evidence
presented at trial and the district court’s findings).
23
years. On cross-examination, Dr. Flores admitted that he agreed
with the defense expert, Dr. Alford, that in presidential election
years, Anglos do not vote as a bloc usually to defeat the Hispanic
candidate of choice in Justice Precinct Two. See ROA vol. 11 at
65-67. In addition, Dr. Flores admitted that it was unclear and
uncertain whether Anglos vote as a bloc, in non-presidential
election years, usually to defeat the Hispanic candidate of choice
within the challenged area. Id. at 67-68.24 Given that the
plaintiffs’ own expert witness at trial admitted that for two out
of the three relevant election scenarios the third Gingles factor
could not be met, and that in the remaining election scenario, it
is unclear and uncertain whether this factor could be met, the
district court’s finding that the plaintiffs had satisfied their
burden of proof on this factor is all the more perplexing.
5. Totality of the Circumstances Inquiry
Because the plaintiffs failed to meet their burden of
proof on one of the three essential Gingles preconditions for a
24
Q: All right. Now we had some areas of disagreement. Is it fair
to say that we’re going to disagree as to whether Anglos in Precinct 2 vote as
a bloc to usually defeat the Hispanic choice in nonpresidential year general
elections?
A: To me, it’s not clear. That’s correct.
Q: So you’re saying –- let me back up just a second. You’re saying
that it’s not clear whether they vote as a bloc usually to defeat?
A: Well, in non-presidential year general election, all we’ve got
is that one - - that one election. So usually in that one election, to me, that
doesn’t make very much - - if we have a history of elections, then I could - -
I could have a better answer for this. But I really can’t answer this.
Q: All right. So we may agree that they don’t vote as a bloc
usually to defeat the Hispanic choice or we may not disagree on that. You just
don’t know?
A: To me, this is an area of uncertainty.
24
Section 2 vote dilution claim, we need not reach the County’s claim
that the district court clearly erred in its analysis of the
totality of the circumstances. Magnolia Bar, 994 F.2d at 1148.
Nonetheless, where plaintiffs are able to satisfy the Gingles
threshold inquiry and a district court properly turns to the
requisite totality of the circumstances analysis, district courts
must thoughtfully consider the factors enumerated in Zimmer v.
McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), and the Senate
Judiciary Committee report on the 1982 amendments to the Voting
Rights Act, S. Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982),
reprinted in 1982 U.S.C.C.A.N. 177, 206-07. The district court’s
relatively cursory analysis of the factors was insufficient in this
case. In particular, the court ignored that five of the 11
officials elected from the county’s justice precincts are Hispanic
and that as the election cycle progresses in the new Precinct Two,
more Hispanics will likely be elected.25 This powerful evidence of
nearly proportional representation ought to have been considered by
the court.
6. Relief Ordered by the District Court
From the preceding discussion, it is clear that the
district court’s award of injunctive relief must be vacated.
We pause briefly, however, to note that district courts
should use a great deal of caution in invalidating the results of
25
Plaintiffs’ refusal to identify Constable Wilborn as Hispanic simply
because he lacks an Hispanic surname borders on the ridiculous.
25
a duly held election and ordering the implementation of its own
alternative districting plan. The primary responsibility for
correcting Voting Rights Act deficiencies rests with the relevant
legislative body. Jones v. Lubbock, 727 F.2d 364, 387 (5th Cir.,
reh’g denied, 730 F.2d 233 (1984)) (citing Chapman v. Meier, 420
U.S. 1, 27, 95 S. Ct. 751, 766, 42 L. Ed. 2d 766 (1975)). Both the
Supreme Court and this court have admonished district courts to
afford local governments a reasonable opportunity to propose a
constitutionally permissible plan and not haphazardly to order
injunctive relief.26 Id. (citing Wise v. Lipscomb, 437 U.S. 535,
540, 98 S. Ct. 2493, 2497, 57 L. Ed. 411 (1978)). The extra-
ordinary relief granted in this case, in which the district court
not only ordered the election results overturned, but required the
26
In our view, the district court did not afford Bexar County a
reasonable opportunity to fashion an appropriate remedy. In Bexar County’s
filings with the district court regarding the relief to be ordered, as noted
above, the county pointed out that the district court’s primary rationale for
finding liability — the fact that Hispanic voter registration was under 50
percent in Justice Precinct Two — had changed since the time of trial. See
R. Doc. 190 (Bexar County’s suggestion to the court on the scope of available
relief and reconsideration of Section 2 finding highlighting the changed
circumstances); R. Doc. 193 (Bexar Court’s suggestion of mootness based on the
changed circumstances). As a result, the County requested that the district
court either alter its finding on liability or provide the County with
information on what criteria the court would use to evaluate a proposed plan so
that the county could submit such a plan. See R. Doc. 190 (requesting that the
district court either alter its finding on liability or, in the alternative,
provide additional guidance to the parties); R. Doc. 202 (Bexar County’s comments
on the plaintiffs’ September 18 advisory to the court indicating that Bexar
County stood ready “to propose a remedial plan that cures the legal infirmities
that have been identified by the court,” but requesting “a status conference or
other hearing prior to [the district court] granting relief” and arguing that
such a proceeding “would be of great benefit to the court and the parties in
determining exactly what relief would address the infirmities identified by the
court.”). However, rather than address Bexar County’s reasonable concerns, the
district court simply granted the bulk of the plaintiffs’ requested relief.
R. Doc. 203. Such an approach does not comport with the Supreme Court’s and this
court’s clear requirements.
26
county to recreate and refund the eliminated constable office, is
reserved only for the most extreme cases. See, e.g., Cook v.
Luckett, 735 F.2d 912, 922 (5th Cir. 1984). This case was in no
way extreme. The court’s order was an abuse of discretion.
B. Plaintiffs’ Constitutional Claim
While the district court’s analysis of the plaintiffs’
Section 2 Voting Rights Act claim was wanting in many respects, we
note, however, that the district court engaged in a careful
analysis of the plaintiffs’ claim under the Texas Constitution.
Our review of the briefs and record indicates that the district
court properly resolved this claim on the merits. We affirm this
portion of the judgment.
III. CONCLUSION
This is the rare case in which the district court
erroneously refused to consider probative evidence and just as
erroneously relied on non-probative evidence to support its vote
dilution finding. To uphold a finding of vote dilution without any
supporting evidence, and with much evidence that indicates
(a) sustained Hispanic electoral success in Precinct Two;
(b) significant Anglo crossover voting for Hispanic candidates;
and (c) nearly proportional Hispanic representation in the justice
precinct posts, ignores modern-day reality. The court’s finding
and resulting judgment cannot stand.
For the reasons discussed above, the judgment of the
27
district court is REVERSED IN PART and AFFIRMED IN PART. In light
of our conclusions, we RENDER JUDGMENT in favor of Bexar County and
VACATE the district court’s injunctive order.
28