TABLE OF CONTENTS I.
Facts........................................................ 837 II. Motion to Remand............................................. 840 A. The Authority of the Texas Attorney General............... 840 B. Other Motions............................................. 843 C. The Intervenors........................................... 844 D. Consent Decrees........................................... 845 E. Chisom v. Edwards......................................... 847 F. Federalism................................................ 849 III. Racial Bloc Voting........................................... 849 A. Whitcomb v. Chavis and White v. Register.................. 851 B. The 1982 Amendments....................................... 854 C. Thornburg v. Gingles...................................... 855 D. Partisan Politics......................................... 859 E. Two Objections............................................ 861 IV. Other Legal Errors Affecting the Vote Dilution Inquiry....... 863 A. Cohesiveness of Different Minority Groups................. 863 B. Relevance of Small Number of Minority Lawyers............. 865 C. Past Discrimination....................................... 866 V. Texas' Linkage Interest...................................... 868 A. The Structure of Texas District Courts.................... 868 B. The Role of Function Under § 2....................... 869 C. Weight of State's Interest is Matter of Law............... 871 D. Determining the Weight of the Linkage Interest............ 871 E. Other Means to Accommodate the Linkage Interest........... 875 F. Balancing the State's Interest............................ 876 VI. Application of Law to Each County............................ 877 A. Dallas County............................................. 877 B. Harris County.............................................. 880 C. Tarrant County............................................. 885 D. Travis County.............................................. 887 E. Bexar County............................................... 889 F. Jefferson County........................................... 890 G. Midland County............................................. 891 H. Lubbock County............................................. 892 I. Ector County............................................... 893 VII. Conclusion.................................................... 893
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Over the past fifty years, the steady march of civil rights has been to New Orleans and this court. It continues but the demands have changed. Relatively clear lines of legality and morality have become more difficult to locate as demands for outcomes have followed the cutting away of obstacles to full participation. With our diverse ethnic make-up, this demand for results in voting has surfaced profound questions of a democratic political order such as the limits on rearranging state structures to alter election outcomes, and majority rule at the ballot box and even in legislative halls, questions Congress has provoked but not answered. All this can make a simple voting rights case seem difficult, certainly so with state judges elected on a partisan ballot. Today our difficulties of fitting the Act to the unique features of the state judiciary and sorting out racial and partisan voting are large but the merits of the claims are easily grasped. As we will explain, there is a background to the debate on the large issues that must not be obscured. The evidence of any dilution of minority voting power is marginal at best. We are not persuaded that a violation of the Voting Rights Act has been proved and we reverse.
On July 11, 1988, ten individual voters and the League of United Latin American Citizens sued in federal district court alleging that Texas' system of electing state trial judges violated § 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments in several Texas counties.
As they have throughout Texas history, Texas voters elect their trial judges in county-wide elections. A voter may vote for all of the trial courts of general jurisdiction in her county. At the same time, each trial court is a distinct court, such as the 134th judicial district court of Dallas County, with county-wide jurisdiction and its own history of incumbents. A candidate runs for a particular
On November 8, 1989, the district court found county-wide elections violated § 2 in all nine counties, enjoined future elections, divided the nine counties into electoral subdistricts, and ordered a nonpartisan election for May 5, 1990, with any runoff to be held on June 2. The district court rejected the constitutional arguments, finding that plaintiffs had failed to prove that Texas instituted or maintained the electoral system with discriminatory intent.
In our first effort in this case, a panel held that the Act covers judicial elections but concluded that electing district judges in county-wide elections in Texas did not violate § 2. League of United Latin American Citizens v. Clements, 902 F.2d 293 (5th Cir.1990) ("LULAC I"). We considered the history of judicial elections in Texas and the office of district judge — the court of general jurisdiction. We held that Texas had a special interest in linking the jurisdictional and electoral bases of the trial courts, an interest accented by unwavering support throughout Texas history. Finding no truly informing analogues for resolving such an attack on at-large voting supported by a state interest unique to this judicial office, we looked to the weighing constructs familiar to the Act. We concluded that, as a matter of law, the state interest linking jurisdiction and electoral base outweighed its potentially dilutive effect. LULAC I, 902 F.2d at 308.
A majority of this court sua sponte ordered reconsideration of the panel decision en banc. League of United Latin American Citizens v. Clements, 914 F.2d 620 (5th Cir. 1990) ("LULAC II"). The en banc court held by a 7-6 vote that § 2 of the Act did not apply to judicial elections, rejecting the contrary view of the panel.
Houston Lawyers' Association, as intervenor, and LULAC petitioned for certiorari. The Supreme Court granted both petitions, consolidated them, and reversed, holding that the Voting Rights Act applies to state judicial elections. Houston Lawyers' Ass'n v. Attorney General, ___ U.S. ___, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991). The Supreme Court also held that Texas has a special interest in linking the electoral and jurisdictional bases of district judges. Id. at ___, 111 S.Ct. at 2381. The Court did not agree, however, that this state interest outweighed its dilutive effect in all cases, as a matter of law. Rather, the Court held that balancing is a case-specific enterprise, struck by inquiry into the totality of the circumstances. Justice Stevens explained that the state interest in linkage was to be weighed in deciding "whether a § 2 violation occurred." Id. Justice Stevens made plain that assessing the linkage interest is part of the determination of liability
On remand, the en banc court in turn remanded to the panel. On January 27, 1993, a majority of the panel affirmed the district court's findings in eight of the nine counties. The panel concluded that plaintiffs failed only in Travis County, a Democratic stronghold. League of United Latin American Citizens v. Clements, 986 F.2d 728 (5th Cir.1993) (LULAC III). For a second time, this court decided, on its own motion, to hear the case en banc.
Although the panel opinion had been vacated, General Morales urged a legislative solution to reforming judicial elections. He submitted a plan to the legislature calling for the election of judges from single-member districts in all Texas counties with populations over 100,000. Recognizing that the Texas Constitution mandates the current system of electing trial judges, see Tex. Const. Art. 5, §§ 7, 7a(i), Morales asked the legislature to submit a constitutional amendment to the voters to implement his plan and urged them to do so in time to moot the LULAC lawsuit. Doubting the necessary legislative support for an amendment, the Governor, the Lieutenant Governor, and minority lawmakers urged Morales to achieve the same result through settlement. Morales drafted an agreement providing for the election of the vast majority of judges in the nine urban counties by subdistricts. Democratic officials who were parties to the suit quickly agreed. But Morales could not obtain the agreement of Chief Justice Phillips, nor the district judges, Judge Wood and Judge Entz.
When a proposed resolution approving the "agreement" reached the floor of the Senate there was no quorum because all but two of the thirteen Republican senators walked out. The Senate later reconvened as a Committee of the Whole, not in formal session, and voting along party lines, adopted a resolution expressing its "sentiment" in support of a federal decree. Voting in the House also followed party lines. Nothing with the force of law could be obtained from the legislature. When the dust settled, the only legislative action was this expression of sentiment in support of a federal decree, and that from a Senate convened in a Committee of the Whole. Failing to obtain any positive enactment from the legislature, Morales requested that we remand to the district court for a hearing and entry of his proposed "consent" decree.
By the decree, 152 judges would run in districts smaller than a county, while 22 would continue to be elected at-large. District boundaries would mirror state representative districts in Dallas, Harris, Bexar, and Jefferson counties. Justice of the peace districts would be used in Tarrant County. In Lubbock, Ector, and Midland counties, judges would run from the existing commissioners court districts. Anticipating the question of how the case can be settled without the agreement of the district court judges, the plan allows Judges Wood and Entz to be elected in a county-wide election. The stated purpose was to deny the defendant district judges standing to object.
Chief Justice Phillips, Judge Wood, and Judge Entz object to the proposed decree and oppose the motion to remand. In addition, three former Chief Justices of Texas, Joe R. Greenhill, Robert W. Calvert, and John L. Hill, are before us as amici objecting to remand — and denying the authority of the Attorney General to bind the State. Judges Wood and Entz have moved to realign General Morales with the plaintiffs, and allow their assumption of the defense of the current system.
II. Motion to Remand
We are asked to remand to the district court for entry of a consent decree, although some of the parties wish to proceed with the appeal. The Attorney General argues that these non-consenting parties are no obstacle. Chief Justice Phillips, General Morales argues, was sued in his official capacity as chair of the Judicial Districts Board and the Attorney General is the exclusive lawyer for the State of Texas. On its face, this is not a remarkable contention. However, General Morales also maintains that in his role as lawyer for the State, he need not represent the State's policymakers; he can ignore them and impose his own views. That is remarkable. The force of this contention is that the Attorney General is the sole arbiter of State policy when the State's interest is in litigation. This argument is put forward despite the fact that it leaves his scrambling for legislative support wholly inexplicable; under his presently claimed power, the Attorney General did not need to have the "settlement" adopted by statute. In any event, Texas law does not sanction his actions. Nor are we persuaded that Defendant-Intervenors, Judges Entz and Wood, lack standing to object to a proposed consent decree that will allow them to run county-wide. We deny the motion to remand.
A. The Authority of the Texas Attorney General
General Morales is not the first Texas Attorney General to have staked such a claim of authority. We rejected a similar effort in Baker v. Wade, 769 F.2d 289 (5th Cir.1985) (en banc). Baker challenged Texas' antisodomy statute, suing Holt, the Dallas City Attorney, and Wade, the Dallas County District Attorney. The district court certified a defendant class of officials responsible for enforcing the statute, with Holt and Wade as representatives, and the Attorney General of Texas intervened on behalf of the State. After the district court declared the statute unconstitutional, Danny E. Hill, Potter County's district attorney, filed a notice of appeal, concerned that the Attorney General might decide not to appeal. Hill was a member of the class, but was not a named defendant and had not sought to intervene. Hill's concern was realized when the Attorney General appealed but then withdrew the notice. After failing to persuade the Texas Supreme Court to order the Attorney General to pursue the appeal and unable to obtain leave to intervene from the district court, Hill asked this court for leave to intervene on appeal. We granted this request, explaining:
Id. at 292.
Attorney General Mattox made a considered decision to accept the district court's declaration of unconstitutionality. That was a basic policy choice. Baker's relevant instruction lies in the fact that Attorney General Mattox's decision did not control. Baker rejected the very power claimed by this Attorney General. The power he would exercise cannot be squared with Baker.
That Attorney General Mattox decided to accept the ruling of the district court and Morales reaches for a similar result by a "settlement" fails to distinguish our holding in Baker. It does not respond to our holding that the Attorney General cannot bind state officials, his clients, to his own policy preferences. It is asserted that Hill as a district attorney, one of hundreds in Texas, was charged with the duty of enforcing the statute held unconstitutional. The law enforcement responsibility of a district attorney and that of the Chief Justice as chair of the redistricting board, however, do not differ in relevant ways. Indeed, that the Chief Justice
The Texas Constitution requires the Chief Justice to supervise the state district courts. Article 5, § 7a established the Judicial Districts Board and made the Chief Justice its chair. Tex. Const. Art. 5, § 7a(a) and (b). The constitution charges the Board with the duty of reapportioning the judicial districts as the need arises. Id. § 7a(f). Among other things, the Board is required to consider a district's case load and population in its reapportionment decisions. Tex.Gov't Code Ann. § 24.945 (Vernon 1988). Of special importance to this case, the Board may not create districts smaller than a county without a general election. Tex. Const. Art. 5, § 7a(i); Tex.Gov't Code Ann. § 24.945(e) (Vernon 1988). A redistricting plan may not be proposed or adopted even in anticipation of such an election. Id. Indeed the district court denied leave to intervene in this suit to Midland County concluding it was not a real party in interest. A panel of this court agreed, observing that, unlike the Judicial Districts Board, the county lacked "the power to re-shape judicial districts." LULAC v. Clements, 884 F.2d 185, 187 (5th Cir.1989). Given the Chief Justice's role as chair of the Board and his state constitutional duties to manage state judicial districts and the efficiency of the courts, his contention that he has the authority to defend this lawsuit if the Attorney General will not is compelling. If a district attorney has a sufficient interest in protecting the laws he is duty-bound to enforce, we are persuaded that the Chief Justice as chairman of the Judicial Districts Board has a sufficient interest in protecting the current district court system.
The concerns raised by the Baker dissent are not present here. The dissent was troubled by the fact that Hill was neither a named defendant nor a class representative, had never sought to intervene in the district court, and was not a named party when he filed his appeal. 769 F.2d at 294-95 (Rubin, J., dissenting). Here, Chief Justice Phillips has been a named defendant from the outset.
The state courts have had little occasion to face such a bold claim of authority. The few Texas cases that have grappled with the Attorney General's authority offer him little comfort. Morales points to Terrazas v. Ramirez, 829 S.W.2d 712 (Tex.1991), but in Terrazas, General Morales also failed in an effort to "settle" a legislative reapportionment case. Following the 1990 census, plaintiffs sued various state and county officials to prevent the use of the new census in reapportioning the legislature, because it allegedly undercounted minorities. The legislature proceeded with reapportionment and plaintiffs also challenged the resulting plans. General Morales defended the legislature's plans, lost at trial, and appealed directly to the Texas Supreme Court. Then, Morales agreed with the plaintiffs to settle the senate reapportionment challenge. The agreement included a redistricting plan that was submitted to the trial court and promptly accepted by it. Thereafter, five individuals, not parties to the suit, requested the Supreme Court of Texas to direct the trial court to vacate its judgments reconfiguring the senatorial districts, order the Attorney General to rescind the agreement, and direct the Secretary of State to withdraw submission of the plan for preclearance.
A plurality directed the trial court to vacate its judgments, but refused relief against the Attorney General. Four justices held that the trial court erred by failing to weigh all affected interests before entering the proposed decree. In Justice Hecht's words, "a district court cannot order a reapportionment plan for the State based on nothing more than an agreement of the Governor, the Attorney General, and a few citizens." Id. at
In approving of the Attorney General's conduct, however, the plurality noted that he acted "on behalf of the state defendants[,]" giving him the authority "for his clients and even on his own, to suggest possible remedies ... [and] to negotiate a settlement." Id. (Hecht, J.) (emphasis added). "To hold that he did not would be to give him less authority than any party or any other attorney participating in the case." Id. (emphasis added). The Attorney General acts as counsel for state officials who are his clients.
Terrazas recognizes that the Attorney General represents officials. It does not follow that by doing so, the Attorney General steps into their shoes and assumes the policy-making roles of those officials, against whom specific relief is sought. We need not and do not decide the authority of the Attorney General when an official is named in his official capacity only to join the State. Plaintiff sought specific relief against the Judicial Districts Board chaired by defendant Chief Justice Phillips. The petitioners who objected to the settlement in Terrazas were not even parties to the suit. The Attorney General's power to settle for his clients is certainly no less than that of other lawyers, but Terrazas does not say that it is any greater. No lawyer may forge a settlement agreement over the express objection of his client. Here, to the extent that Morales represents the Chief Justice in the Justice's defense of his constitutionally assigned task, he may not ignore him. As Justice Wallace put it for the Texas Supreme Court in Public Utility Commission of Texas v. Cofer, 754 S.W.2d 121, 125 (Tex.1988):
See also Hill v. Lower Colo. River Auth., 568 S.W.2d 473, 478 (Tex.Civ.App. — Austin 1978, writ ref'd n.r.e.) (rejecting an attempt by the attorney general to sue the Texas Water Rights Commission "in an effort to substitute his views for that of a lawfully constituted State administrative agency"); Charles Scribner's Sons v. Marrs, 114 Tex. 11, 262 S.W. 722, 729 (1924) (although attorney general had authority to represent the State Superintendent of Education, he did not have authority "to elect for the state to accept or reject a contract for text-books that is voidable," a decision for the Board of Education).
The Texas legislature has also recognized that the Attorney General represents the State but does not make its policies. "An admission, agreement, or waiver made by the attorney general in an action or suit to which the state is a party does not prejudice the rights of the state." Tex.Gov't Code Ann. § 402.004 (Vernon 1988); see also State v. Reagan County Purchasing Co., 186 S.W.2d 128, 135 (Tex.Civ.App. — El Paso 1944, writ ref'd w.o.m.) ("acts beyond the scope of [Attorney General's] delegated power are not binding on the State"). If the Texas Attorney General could make policy for the State, this provision would be superfluous, for he could never violate it. He would in effect be the State. When faced with this statute before, we appropriately noted that "Texas has been at particular pains to attempt to circumscribe the power of the attorney general to make admissions on its behalf." United States v. Texas, 680 F.2d 356, 368 n. 17 (5th Cir.1982).
B. Other Motions
We deny the Attorney General's motion to disqualify Phillips' counsel. We also deny plaintiffs' attempt to nonsuit the Texas Judicial Districts Board, including its chair, Chief Justice Phillips. The motion was filed immediately after oral arguments before the en banc court on May 24, 1993. Rule 41(a) governs voluntary dismissals and provides that a plaintiff may dismiss an action without order of the court in two circumstances. The plaintiff must either file the notice of dismissal before the adverse party serves its answer or summary judgment motion, whichever occurs first, or file a stipulation of dismissal signed by all parties who have appeared in the case. Fed.R.Civ.P. 41(a)(1). The notice of nonsuit comes almost five years after the defendants have answered, and none of the defendant-aligned parties has signed the motion. Plaintiffs have no unilateral right to dismiss the Chief Justice and Judicial Districts Board. We will not permit plaintiffs to seek injunctive relief against the office held by Chief Justice Phillips for almost five years and then dismiss him when he declines to settle. See Davis v. Huskipower Outdoor Equipment Corp., 936 F.2d 193, 199 (5th Cir.1991) (affirming refusal to dismiss defendant more than a year after the case was removed to federal court); Radiant Technology Corp. v. Electrovert USA Corp., 122 F.R.D. 201 (N.D.Tex.1988) (motion to voluntarily dismiss under Rule 41 should be denied when plaintiff seeks to circumvent an expected adverse result).
We deny the motion of the district judges as Defendant-Intervenors to realign General Morales with plaintiffs. Morales' efforts to settle the case do not require this
C. The Intervenors
The Attorney General may represent state officials in their official capacities, but there is no contention that General Morales represents Judges Wood and Entz.
To this point, the standing of the intervening parties has not been questioned. To the contrary, the intervenors played an important role at trial and have since taken the lead. After the federal district judge's ruling in favor of plaintiffs, the notice of appeal was first filed by Judges Wood and Entz, not by the Attorney General. Only the district judge's adherence to nonpartisan elections prodded the Attorney General to appeal. The Houston Lawyers' Association intervened by the same order as the intervening judges and carried the appeal from our first en banc decision to the United States Supreme Court.
Of course, these intervenors must satisfy Article III to appeal on their own. Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 1706, 90 L.Ed.2d 48 (1986); Didrickson v. United States Department of the Interior, 982 F.2d 1332, 1337-39 (9th Cir.1992); United States v. Western Elec. Co., 900 F.2d 283 (D.C.Cir.1990). A case or controversy between the State and plaintiffs remains. The parties have a right to a determination of that appeal, unless they consent to a remand. See Wheeler v. American Home Products Corp., 582 F.2d 891, 896 (5th Cir.1977) ("once intervention has been allowed, the original parties may not stipulate away the rights of the intervenor"); see also Sheffield v. Itawamba County Bd. of Supervisors, 439 F.2d 35, 36 (5th Cir.1971) ("having instituted a public lawsuit to secure rectification for a constitutional wrong of wide dimension,
Even assuming the proposed settlement foreclosed the intervening judges' standing to protect their tenure, Wood and Entz would still have a sufficient stake in the litigation to satisfy the Constitution. In an earlier opinion in this case we said
League of United Latin American Citizens v. Clements, 923 F.2d 365, 367 (5th Cir.1991) (emphasis added). In the district court, Judge Entz moved to intervene as a defendant to defend on his interests as a judge, a lawyer, and a registered voter in and citizen of Dallas County. The court's order granting intervention in his individual capacity encompasses all of these interests.
Thus, the proponents of remand view the judges' intervention too narrowly, for Wood and Entz also have standing as voters. The settlement agreement would deprive voters of the right to vote for all judges with general jurisdiction over their county. The Eleventh Circuit recently confronted a similar situation. Meek v. Metropolitan Dade County, 985 F.2d 1471 (11th Cir.1993), was a voting rights challenge to the at-large election of county commissioners in Dade County, Florida. As here, individual voters challenged a liability finding that elected officials would not contest on appeal. Swann and Sampson were Dade County residents and voters. The district court denied them leave to intervene before trial. In a second request for leave to intervene, Swann and Sampson sought to preserve their right to appeal in the event of an adverse judgment and a decision by defendants not to appeal. The court found the at-large system illegal and, as feared, the County Commission decided not to appeal. When the district court denied their third motion to intervene, Swann and Sampson appealed.
Our sister court held that the district court abused its discretion in denying the intervention and affirmed the district court on the merits. The court held that the voters had standing, a sufficient interest both to intervene and carry the appeal when the state agency declined to do so. In its view, if the court were to deny standing to these voters, it "would be forced to conclude that most of the plaintiffs also lack standing, a conclusion foreclosed by the many cases in which individual voters have been permitted to challenge election practices." Id. at 1480 (citing Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). We agree that the standing of voters in a voting rights case cannot be gainsaid. See also O'Hair v. White, 675 F.2d 680, 688-90 (5th Cir.1982) (en banc); Henderson v. Fort Worth Independent School Dist., 526 F.2d 286, 288-90 (5th Cir.1976).
D. Consent Decrees
Even if all of the litigants were in accord, it does not follow that the federal court must do their bidding. The proposal is not to dismiss the lawsuit, but to employ the injunctive power of the federal court to achieve a result that the Attorney General and plaintiffs were not able to achieve through the political process. The entry of a consent decree is more than a matter of agreement among litigants. It is a "judicial act." United States v. Swift & Co., 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). "[W]hen [the court] has rendered a consent judgment it has made an adjudication." Kaspar Wire Works, Inc. v. Leco Eng'g & Machine, Inc., 575 F.2d 530, 538-39 (5th Cir.1978) (quoting 1B James W. Moore et al., Moore's Federal Practice ¶ 0.409).
A consent decree must arise from the pleaded case and further the objectives of the law upon which the complaint is based. See Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 525, 106 S.Ct. 3063, 3077, 92 L.Ed.2d 405 (1986). When presented with a proposed judgment, the court "must not merely sign on the line provided by the parties." United States v. City of Miami, 664 F.2d 435, 440 (5th Cir. 1981) (en banc) (Rubin, J.).
Id. at 441 (Rubin, J.) (emphasis added); see also Overton v. City of Austin, 748 F.2d 941, 952-53 (5th Cir.1984); Williams v. City of New Orleans, 729 F.2d 1554, 1559 (5th Cir. 1984) (en banc) (Williams, J.).
The emphasized passage makes a critical point. A proposed consent decree is generally — as here — a request for the court to exercise its equitable powers. It involves the court's sanction and power and is not a tool bending without question to the litigants' will. As Justice Harlan wrote, "parties cannot, by giving each other consideration, purchase from a court of equity a continuing injunction." System Federation No. 91, Ry. Employees' Dep't, AFL-CIO v. Wright, 364 U.S. 642, 651, 81 S.Ct. 368, 373, 5 L.Ed.2d 349 (1961).
We have recognized that when fewer than all litigants forge a consent decree, issues affecting other parties remain to be adjudicated. City of Miami, 664 F.2d at 440 (Rubin, J.). As eleven judges recognized in the same case, our preferences for settlement and accord are insufficient to justify the imposition of a decree that infringes upon the rights of third parties. See id. at 451 (Gee, J., concurring and dissenting). A consent decree "cannot dispose of the valid claims of nonconsenting intervenors; if properly raised, these claims remain and may be litigated by the intervenor." Local 93, 478 U.S. at 529, 106 S.Ct. at 3079.
Courts must be especially cautious when parties seek to achieve by consent decree what they cannot achieve by their own authority. Consent is not enough when litigants seek to grant themselves powers they do not hold outside of court. People Who Care v. Rockford Bd. of Educ., 961 F.2d 1335, 1337 (7th Cir.1992). For example, a local government may not use a consent decree to avoid a state law requiring a referendum before the issuance of construction bonds. Dunn v. Carey, 808 F.2d 555, 560 (7th Cir. 1986).
We expressed our concern regarding the risks attending consent decrees in Overton v. City of Austin, 748 F.2d 941 (5th Cir.1984). In that case, plaintiffs and the city attorney, acting for the city council, proposed a decree substituting single-member council districts for the at-large council established by the city charter. A dissenting council member maintained that the council lacked the authority to change the existing scheme without a city-wide referendum. Id. at 947 n. 5. In the district court, several black voters sought to intervene as defendants on the ground that subdistricting would curtail their voting power. Id. at 944. The plaintiffs petitioned for a writ of mandamus to compel the district court to implement the proposed decree without further consideration. We refused to issue the writ. In doing so, Overton recognized the danger of manipulation faced by federal courts. We may be asked to effectuate substantive results that government officials are not empowered to bring about themselves. Id. at 956. The risk can
Our job is to decide a case or controversy. The parties' high-strung rhetoric does not fully obscure the reality that a live controversy yet exists. By declining to remand this case, we do not slow one whit any march for change in Texas. Its elected leaders are always free to pursue whatever scheme they think best, through the normal political process. Texas links the jurisdiction and electoral bases of its district judges and the still-contested question for this court is its legality.
The procedural posture of this case when the request to remand to the district court was heard is important. The issues in this case were well known to the entire court. The case had been fully tried and its appeal had twice been before a panel of this court and was before the en banc court a second time. The issues had been fully aired in the panel majority and dissenting opinion when this court vacated the panel opinion. In sum, we are asked to remand to the district court to consider entry of a "consent" decree and to decide whether it would "put the court's sanction on and power behind a decree that violates Constitution, statute, or jurisprudence." City of Miami, 664 F.2d at 441 (Rubin, J.). More precisely put, any federal decree must be a tailored remedial response to illegality. Cf. Shaw v. Reno, ___ U.S. ___, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). We are asked to remand for this determination although we are not persuaded that there is any illegality.
It is not a matter of our withholding announcement of our decision. We could not, in any event, remand without correcting the district court's misapprehensions of law, found even by our dissenting colleagues. Significant legal errors infected the trial court's earlier judgment, including its refusal to consider the effect of partisan voting, its finding of liability in Travis County now undefended, its selective aggregation of language and ethnic minorities, its refusal to accord weight to the State's linkage interest in the totality of the circumstances, and finally, its heavy reliance upon historical societal discrimination without bringing this history home to this case. We cannot escape this error-correcting task — and when it is done, there is no case. The amicus United States agrees with our conclusion that, once the proper legal standards are determined, the record presents no factual issue that needs revisiting. It follows that the proposed consent decree cannot respond to sufficiently identified illegality — because the record demonstrates that there is none.
E. Chisom v. Edwards
Finally, the parties urging remand point to Chisom v. Edwards, 970 F.2d 1408 (5th Cir. 1992), where we remanded a voting rights case for the district court to enter a consent decree. That case challenged the method of electing Louisiana's Supreme Court Justices. Chisom v. Roemer, ___ U.S. ___, ___, 111 S.Ct. 2354, 2358, 115 L.Ed.2d 348 (1991). Our remand in Chisom, however, resulted from different circumstances.
First, all parties joined the motion to remand, as we were careful to point out in our order:
Chisom, 970 F.2d at 1409 (emphasis added). As we have discussed, the same is not true here.
While § 3 limits the size of the supreme court to seven justices, Art. 5, § 5(A) permits the Louisiana Supreme Court to "assign a sitting or retired judge to any court." La. Const. Art. 5, § 5(A). The legislature therefore created an additional place for a judge on the Court of Appeal for the Fourth Circuit, who, upon election, would be assigned to the supreme court to serve, in reality, as the eighth justice. See La.Rev.Stat.Ann. § 13:312.4 (West Supp.1993). This temporary judgeship was to expire with a vacancy on the supreme court from the first district. The vacancy would be filled by an election in the newly created seventh district comprised of Orleans Parish. La.Rev.Stat.Ann. § 13:101.1 (West Supp.1993). Both of these provisions were contained in Act 512 which, after receiving the required two-thirds vote in both houses of the legislature, became law on June 22, 1992. Official Journal of the Proceedings of the Senate of the State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official Journal of the Proceedings of the House of the State of Louisiana, 18th Reg. Sess. at 31 (June 16, 1992). The Louisiana Legislature provided that Act 512 would not go into effect unless the federal court entered a consent decree in Chisom. La. Rev.Stat.Ann. § 13:101.1 (West Supp.1993).
The Texas Legislature refused to take positive action, and the settlement agreement attempts to avoid constitutional requirements. The Texas Constitution requires that judges be elected from districts no smaller than a county, absent a majority vote by the citizens of that county. Tex. Const. Art. 5, §§ 7, 7a(i).
Then we have all sides claiming the high ground of federalism. Some of the assertions are creative. The suggestion that state political groups, unable to muster sufficient political force to change the system, can by "agreement" enlist the preemptive power of the federal court to achieve the same end stands federalism on its head. Of course, we defer to legislative will and state decision. Here, the "decision" to which we are asked to defer is a decision by a political faction that the federal court should order the state to change its system. We do not share this curious view of federalism.
III. Racial Bloc Voting
As amended, § 2 of the Voting Rights Act prohibits states from imposing or applying any "standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." A minority group may establish a violation of this provision by proving "that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."
Section 2 claims brought against multimember schemes are governed by the framework established in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Under Gingles, plaintiffs challenging an at-large system on behalf of a protected class of citizens must demonstrate that (1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate. Growe v. Emison, ___ U.S. ___, ___, 113 S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993); Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766. Satisfaction of these three "preconditions," Voinovich v. Quilter, ___ U.S. ___, ___, 113 S.Ct. 1149, 1157, 122 L.Ed.2d 500 (1993), is necessary, Gingles, 478 U.S. at 50, 106 S.Ct. at 2766, but not sufficient to establish liability under § 2. Chisom v. Roemer, ___ U.S. ___, ___, 111 S.Ct. 2354, 2365, 115 L.Ed.2d 348 (1991); Citizens for Better Gov't v. City of Westwego, 946 F.2d 1109, 1116 (5th Cir.1991) (Westwego III). Plaintiffs must also show that, under the "totality of circumstances," they do not possess the same opportunities to participate in the political process and elect representatives of their choice enjoyed by other voters. Courts are guided in this second inquiry by the so-called Zimmer factors listed in the Senate Report.
On appeal, defendants contend that the district court erred in refusing to consider the nonracial causes of voting preferences they offered at trial. Unless the tendency among minorities and whites to support different candidates, and the accompanying losses by minority groups at the polls, are somehow tied to race, defendants argue, plaintiffs' attempt to establish legally significant white bloc voting, and thus their vote dilution claim under § 2, must fail. When the record indisputably proves that partisan affiliation, not race, best explains the divergent voting patterns among minority and white citizens in the contested counties, defendants conclude, the district court's judgment must be reversed.
We agree. The scope of the Voting Rights Act is indeed quite broad, but its rigorous protections, as the text of § 2 suggests, extend only to defeats experienced by voters "on account of race or color." Without an inquiry into the circumstances underlying unfavorable election returns, courts lack the tools to discern results that are in any sense "discriminatory," and any distinction between deprivation and mere losses at the polls becomes untenable. In holding that the failure of minority-preferred candidates to receive support from a majority of whites on a regular basis, without more, sufficed to prove legally significant racial bloc voting, the district court loosed § 2 from its racial tether and fused illegal vote dilution and political defeat. In so doing, the district court ignored controlling authorities: Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), which established a clean divide between actionable vote dilution and "political defeat at the polls"; the 1982
A. Whitcomb v. Chavis and White v. Regester
The Senate Report indicates that the 1982 amendments to § 2 were intended to "codify" the results test as employed in White and Whitcomb. See S.Rep. 417 at 2, 20-23, 32-33, reprinted in 1982 U.S.Code Cong. & Admin.News at 197-201, 210-11; Gingles, 478 U.S. at 97, 106 S.Ct. at 2790 (O'Connor, J., concurring) ("In enacting § 2, Congress codified the `results' test this Court had employed, as an interpretation of the Fourteenth Amendment, in White and Whitcomb"); Jones v. City of Lubbock, 727 F.2d 364, 379 (5th Cir.1984) (the amended § 2 "codifies pre-Bolden voting dilution law"). Consequently, "it is to Whitcomb and White that we should look in the first instance in determining how great an impairment of minority voting strength is required to establish vote dilution in violation of § 2." Gingles, 478 U.S. at 97, 106 S.Ct. at 2790 (O'Connor, J., concurring).
In Whitcomb, black citizens residing in one part of Marion County, referred to as the "ghetto" by the Court, claimed that the county's at-large method of electing members to the state legislature unconstitutionally diluted their votes. The "[s]trong differences" between "ghetto" residents and adjacent communities "in terms of housing conditions, income and educational levels, rates of unemployment, juvenile crime, and welfare assistance," 403 U.S. at 132, 91 S.Ct. at 1863,
The Whitcomb Court was reluctant to view the plaintiffs' claims of vote dilution as anything more than "a euphemism for political defeat at the polls," id., for, absent evidence of a lack of access to the political system, there was no principle by which the Court could distinguish the "ghetto's" claims and those of other unsuccessful political groups:
Id. at 154-55, 91 S.Ct. at 1875. To grant relief to black residents in this case, the Court held, "would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a multimember district vote." Id. at 156, 91 S.Ct. at 1876.
The Court's assertion that plaintiffs' racial vote dilution claim was indistinguishable from complaints which might be brought by any unsuccessful interest group hinged on its determination that "ghetto" residents did not suffer from a lack of access to the political process. Despite the presence of vast disparities in virtually every significant measure of socioeconomic status, the Court found that black voters stood on the same footing with whites in vying for representation within Marion County. "Ghetto" residents had in fact experienced a string of losses at the polls in recent years, but these defeats were shared equally among all members of the Democratic Party.
The Court confronted very different circumstances two years later in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). The Court confirmed Whitcomb's rejection of the claim that "every racial or political group has a constitutional right to be represented in the state legislature," id. at 769, 93 S.Ct. at 2341, and reiterated the standard established in its earlier decision: a minority group must prove "that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." Id. at 766, 93 S.Ct. at 2339 (citing Whitcomb, 403 U.S. at 149-50, 91 S.Ct. at 1872). Unlike the plaintiffs in Whitcomb, however, the black residents of Dallas County and the Hispanic voters in Bexar County each established that they had been effectively excluded from the political processes leading to the nomination and election of the Texas House of Representatives. 412 U.S. at 766-70, 93 S.Ct. at 2339-41.
Specifically, black voters in Dallas labored under the yoke of Texas' long history of official discrimination and were subjected to several procedural devices which, while not invidious in themselves, "enhanced the opportunity for racial discrimination." Id. at 766, 93 S.Ct. at 2339. "More fundamentally," the Court noted, the Dallas Committee for Responsible Government, "a white-dominated organization that is in effective control of Democratic Party candidate slating," had slated only two black candidates in its history, who, not coincidentally, constituted the only two blacks ever to have served in the Dallas County delegation to the Texas House since Reconstruction. Id. at 766-67, 93 S.Ct. at 2340. The DCRG failed to display any "good-faith concern for the political and other needs and aspirations of the Negro community," and in fact regularly relied on racial campaign tactics to defeat candidates supported by black residents. Id. at 767, 93 S.Ct. at 2340. Consequently, the Court had no reason to disturb the district court's conclusion "that `the black community has been effectively excluded from participation in the Democratic primary selection process,' and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner." Id. (quoting Graves v. Barnes, 343 F.Supp. 704, 726 (W.D.Tex. 1972)).
The Court also upheld a similar finding that Mexican-Americans likewise had been "`effectively removed from the political processes of Bexar [County] in violation of all the Whitcomb standards.'" Id. 412 U.S. at
The principles announced and applied in Whitcomb and White are instructive and, we believe, controlling. As Justice White, the author of these opinions, recently indicated, the central "theme" of Whitcomb and White is "that it is not mere suffering at the polls but discrimination in the polity with which the Constitution is concerned." Shaw v. Reno, ___ U.S. ___, ___, 113 S.Ct. 2816, 2835, 125 L.Ed.2d 511 (1993) (White, J., dissenting). Beyond the bounds of this litigation, the clarity with which the Whitcomb Court articulated the principles underlying the "results" test has largely forestalled confusion or doubt, even among those whom plaintiffs might be inclined to count as allies. See, e.g., Jones v. City of Lubbock, 727 F.2d 364, 384 (5th Cir.1984) ("Even where an at-large system interacts with a racially or ethnically polarized electorate to the disadvantage of the minority, the `result' is not necessarily a denial of political access.... [T]he `result' in Whitcomb [is] that polarized voting does not render an at-large system dilutive of minority voting strength"); Pamela S. Karlan, Undoing the Right Thing: Single-Member Offices and the Voting Rights Act, 77 Va.L.Rev. 1, 22 n. 78 (1991). Justice Marshall, for example, provided a clear explanation of the Court's holding in his dissent in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980):
Id. at 109, 100 S.Ct. at 1522 (Marshall, J., dissenting) (citations omitted).
Justice Marshall's references to the "lack of success at the polls" as a "result" of "partisan politics, not racial vote dilution," closely tracks the relevant language in Whitcomb, where the Court held that the "cancell[ing] out" of the "voting power of ghetto residents" was more "a function of losing elections" or "political defeat" than of "built-in bias against poor Negroes." 403 U.S. at 153, 91 S.Ct. at 1874. Absent evidence that minorities have been excluded from the political process, a "lack of success at the polls" is not sufficient to trigger judicial intervention. Courts must undertake the additional inquiry into the reasons for, or causes of, these electoral losses in order to determine whether
As Justice Marshall suggested, failures of a minority group to elect representatives of its choice that are attributable to "partisan politics" provide no grounds for relief. Section 2 is "a balm for racial minorities, not political ones — even though the two often coincide." Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 361 (7th Cir.1992) (citing Whitcomb). "The Voting Rights Act does not guarantee that nominees of the Democratic Party will be elected, even if black voters are likely to favor that party's candidates." Id. Rather, § 2 is implicated only where Democrats lose because they are black, not where blacks lose because they are Democrats. While this rule is easier stated than applied, the Whitcomb Court's application of the "results" test to the facts before it provides helpful and indeed dispositive guidance. As we explain in greater detail below, the Court's dismissal in Whitcomb of the plaintiffs' vote dilution claim as a "mere euphemism for political defeat at the polls," despite evidence of polarized voting, the lingering effects of past discrimination, and little electoral success among minority candidates, precludes finding a violation of § 2 in most, but not all, of the counties at issue.
B. The 1982 Amendments
The Senate Report accompanying the 1982 amendments to § 2 states that Congress intended to "codify" the "results test" articulated and employed in Whitcomb and White. Congress of course retained the statutory language restricting relief under § 2 to "denial[s] or abridgment[s] of the right ... to vote on account of race or color." This limitation was not so much the product of legislative discretion as constitutional imperative, given that the scope of Congress' remedial power under the Civil War Amendments is defined in large part by the wrongs they prohibit. See, e.g., City of Rome v. United States, 446 U.S. 156, 206, 100 S.Ct. 1548, 1576, 64 L.Ed.2d 119 (1980) (Rehnquist, J., dissenting); Oregon v. Mitchell, 400 U.S. 112, 152, 91 S.Ct. 260, 279, 27 L.Ed.2d 272 (1970) (Harlan, J., concurring in part and dissenting in part). Thus, the Senate Report explained that the 1982 amendments avoided constitutional difficulty because "the very terms and operation of [§ 2] confine its application to actual racial discrimination." S.Rep. 417 at 43, reprinted in 1982 U.S.Code Cong. & Admin.News at 221.
Congress embraced Whitcomb on terms consistent with § 2's limitation to cases of "actual racial discrimination." Noting that the claim before the Court in Whitcomb alleged vote dilution on grounds that "black ghetto residents with [distinct] legislative interests had been consistently underrepresented in the legislature," the Senate Report recounted what it regarded as the relevant facts of the case:
Id. at 20-21, reprinted in 1982 U.S.Code Cong. & Admin.News at 198. The facts cited by the Senate mirror those previously identified by Justice Marshall in Bolden and stressed here: Plaintiffs were unsuccessful in years in which their party suffered electoral defeat; they were able to elect representatives of their choice when their party prevailed. Not surprisingly, the Senate adopted Whitcomb's central teaching in presenting what it understood to be the kernel of the decision:
Id. at 21 (quoting Whitcomb, 403 U.S. at 153, 91 S.Ct. at 1874), reprinted in 1982 U.S.Code Cong. & Admin.News at 198.
In keeping with Whitcomb's sharp distinction between "built-in bias" and "political defeat at the polls," the Senate Report indicated that a proper application of the results test requires courts to "distinguish between situations in which racial politics play an excessive role in the electoral process, and communities in which they do not." Id. at 33, reprinted in 1982 U.S.Code Cong. & Admin.News at 211. The Senate Report, again following Whitcomb, accorded this inquiry into "racial bloc voting," that is, whether "`race is the predominant determinant of political preference,'" dispositive significance: Absent a showing of "racial bloc voting," the Senate Report asserted, "it would be exceedingly difficult for plaintiffs to show that they were effectively excluded from fair access to the political process under the results test." Id. (quoting S.Rep. 417 at 148 (Report of the Subcommittee on the Constitution), reprinted in 1982 U.S.Code Cong. & Admin.News at 321). Since the results test itself, contrary to critics' charges, "makes no assumptions one way or the other about the role of racial political considerations in a particular community," id. at 34, reprinted in 1982 U.S.Code Cong. & Admin.News at 212, the Senate Report emphasized that plaintiffs must supply affirmative proof of "racial bloc voting." The "mere existence of underrepresentation plus a history of dual schools" plainly does not suffice to make out a violation of § 2. Id.
It is difficult to see how the record in this case could possibly support a finding of liability under the approach outlined in the Senate Report. Plaintiffs have not even attempted to establish proof of racial bloc voting by demonstrating that "race," not, as defendants contend, partisan affiliation, "is the predominant determinant of political preference." They have instead maintained, in the very teeth of the Senate Report, that such a showing is unnecessary. Because the district court accepted this argument, the test employed at trial enabled plaintiffs to prevail by proving little more than a lack of success at the polls and a history of discrimination. While this standard finds clear support in Justice Brennan's plurality opinion in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), it "simply was not the approach used by the courts under the White/Zimmer test" and codified by Congress. S.Rep. 417 at 34, reprinted in 1982 U.S.Code Cong. & Admin.News at 212.
C. Thornburg v. Gingles
Justice Brennan's discussion of the first and second Gingles factors received majority support. Gingles, 478 U.S. at 50-51, 56, 106 S.Ct. at 2766, 2769.
Despite the presence of express language to the contrary in the Senate Report, see S.Rep. 417 at 33 ("racial bloc voting" is established when "race is the predominant determinant of political preference"), reprinted in 1982 U.S.Code Cong. & Admin.News at 211, Justice Brennan held that racial bloc voting or "racially polarized voting" did not describe divergent "voting patterns for which
Justice Brennan's assertion that racial political considerations had no role in examining racial bloc voting was squarely rejected by five Justices in Gingles. 478 U.S. at 83, 106 S.Ct. at 2782 (White, J., concurring); id. at 100-01, 106 S.Ct. at 2792 (O'Connor, J., joined by Burger, C.J., Powell and Rehnquist, JJ., concurring). Justice White argued that
Id. 478 U.S. at 83, 106 S.Ct. at 2782 (White, J., concurring) (emphasis added). Justice O'Connor joined Justice White in maintaining that evidence that white and minority voters generally supported different candidates did not constitute legally significant racial bloc voting where these patterns were attributable to partisan affiliation rather than the race of the candidate. She therefore rejected Justice Brennan's position that
Id. at 100-01, 106 S.Ct. at 2792 (O'Connor, J., concurring) (emphasis added).
As courts and commentators alike have noted, Justice White and Justice O'Connor were united in their fidelity to Whitcomb's distinction between vote dilution and partisan politics and in their opposition to Justice Brennan's attempt to expunge this teaching from the bloc voting inquiry. See, e.g., Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 361 (7th Cir.1992) ("Justice White ... observ[ed] that system leading to the election of black Republicans could not be dismissed as discriminatory. To disregard the race of the victors, Justice White concluded, `is interest-group politics rather than a rule hedging against racial discrimination.' Justice O'Connor agreed") (citation omitted); Note, Voting Rights Act Section 2: Racially Polarized Voting and the Minority Community's Representative of Choice, 89 Mich. L.Rev. 1038, 1044 (1991); Note, Defining the Minority Preferred Candidate Under Section 2, 99 Yale L.J. 1651, 1662-63 (1990). The division in Gingles between the Brennan plurality and the five Justices who supported the White/O'Connor approach cuts deep, reflecting quite different visions of voting rights and their statutory treatment. Since these five Justices expressly rejected a test that would permit § 2 liability to attach upon a showing that white and black citizens generally gave their votes to different candidates in favor of an inquiry into the possible explanations of these divergent voting patterns, we believe that it is this view, not Justice Brennan's, that commands our allegiance. The district court's failure to accord similar weight to this approach was not justified.
All members of the Court in Gingles agreed that only "legally significant" racial bloc voting is cognizable under § 2. They disagreed sharply, however, on the sort of proof that would implicate this provision. Justice Brennan held that a "minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 51, 106 S.Ct. at 2766-67. Justice O'Connor, on the other hand, argued that such a showing did not warrant judicial intervention: "[A] reviewing court should be required to find more than simply that the minority group does not usually attain an undiluted measure of electoral success." Id. at 99, 106 S.Ct. at 2791 (O'Connor, J., concurring). Instead, she would require a court to "find that even substantial minority success will be highly infrequent under the challenged plan before it may conclude, on this basis alone, that the plan operates to `cancel out or minimize the voting strength of [the] racial grou[p].'" Id. at 99-100, 106 S.Ct. at 2792 (quoting White, 412 U.S. at 765, 93 S.Ct. at 2339) (alterations in original).
Justice O'Connor's admonition that federal courts should stay their hand absent proof that "even substantial minority success will be highly infrequent" receives formal expression in her insistence that the racial bloc voting inquiry must include an examination of the causes underlying divergent voting patterns. Both Justice Brennan and Justice O'Connor recognized that racial bloc voting is intimately related to the responsiveness of elected officials to the interests of minorities, one of the factors considered as part of the "totality of circumstances." As Justice Brennan indicated, "[n]ot only does `[v]oting along racial lines' deprive minority voters of their preferred representatives in these circumstances, it also `allows those elected to ignore [minority] interests without fear of political consequences.'" Id. 478 U.S. at 48 n. 14, 106 S.Ct. at 3106 n. 14 (quoting Rogers v. Lodge, 458 U.S. 613, 623, 102 S.Ct. 3272, 3278, 73 L.Ed.2d 1012 (1982) (alterations in original)). The close tie between bloc voting and representatives' responsiveness noted by the Court in Rogers and confirmed by Justice
Justice O'Connor not only rejected Justice Brennan's polarized voting standard but was also unwilling to join in the questionable assumption that minorities are unable to influence elections and secure the attention of public officials where these groups have been unsuccessful in their efforts to elect their preferred representatives. Gingles, 478 U.S. at 100-101, 106 S.Ct. at 2792 (O'Connor, J., concurring). Unlike Justice Brennan, she argued that "Congress also intended that explanations of the reasons why white voters rejected minority candidates would be probative of the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account." Id. at 100, 106 S.Ct. at 2792 (O'Connor, J., concurring). Following Rogers, Justice O'Connor believed that a minority group's prospects for future electoral success and the likelihood that elected officials will take account of their interests differ materially "in a community where racial animosity is absent although the interests of racial groups diverge." Id. (O'Connor, J., concurring). A tendency among whites to cast their votes on the basis of race presents a far more durable obstacle to the coalition-building upon which minority electoral success depends than disagreements over ideology for, as Professor Ely observes, "prejudice blinds us to overlapping interests that in fact exist." John Hart Ely, Democracy and Distrust 153 (1980). Representatives who owe their office to the support of majorities bound by prejudice need not attend to the interests of minorities, since the bias uniting their constituents ensures that these issues will remain minority concerns. Where, on the other hand, voting patterns correlate with partisan affiliation or perceived interest, the open channels of communication facilitate a recognition of points of common ground that might otherwise go undetected. Elected officials in these communities cannot ignore minority interests because this group might be part of the winning coalition that votes them out of office. The deep division between Justice Brennan and Justice O'Connor on the question of racial bloc voting thus reflects fundamentally different views of political factions and our constitutional and statutory arrangements for accommodating their simultaneous demands for fluidity and fixity.
D. Partisan Politics
We need not hold that plaintiffs must supply conclusive proof that a minority group's failure to elect representatives of its choice is caused by racial animus in the white electorate in order to decide that the district court's judgment must be reversed. It is true that such a requirement could be inferred from the text of § 2 (prohibiting "denial[s] or abridgement[s] of the right ... to vote on account of race or color"); the caselaw Congress intended to codify in amending the provision, see, e.g., Whitcomb, 403 U.S. at 153, 91 S.Ct. at 1874 (vote dilution does not lie when losses at the polls do not reflect "built-in bias against poor Negroes"); the Senate Report, see S.Rep. 417 at 33 (equating proof of racial bloc voting with evidence that "race is the predominant determinant of political preference"), reprinted in 1982 U.S.Code Cong. & Admin.News at 211; the testimony of prominent supporters of the Act, see, e.g., Hearings on the Voting Rights Act Before the Subcomm. on the Constitution of the Senate Comm. of the Judiciary, 97th Cong., 2d Sess. 1367-68 (statement of Prof. Drew Days) (§ 2 implicated "where a combination of public activity and private discrimination have joined to make it virtually impossible for minorities to play a meaningful role in the electoral process"); and the controlling opinions of the Supreme Court. See Gingles, 478 U.S. at 100, 106 S.Ct. at 2792 (O'Connor, J., concurring) (distinguishing communities where polarized voting is attributable to "racial hostility" and those in which "racial animosity is absent although the interests of racial groups diverge"). There is also a powerful argument supporting a rule that plaintiffs, to establish legally significant racial bloc voting, must prove that their failure to elect representatives of their choice cannot be characterized as a "mere euphemism for political defeat at the polls," Whitcomb, 403 U.S. at 153, 91 S.Ct. at 1874, or the "result" of "partisan politics." Bolden, 446 U.S. at 100, 100 S.Ct. at 1517 (Marshall, J., dissenting).
Describing plaintiffs' burden in terms of negating "partisan politics" rather than affirmatively proving "racial animus" would not be simply a matter of nomenclature. As Judge Wood emphasizes, there are many other possible non-racial causes of voter behavior beyond partisan affiliation. A rule conditioning relief under § 2 upon proof of the existence of racial animus in the electorate would require plaintiffs to establish the absence of not only partisan voting, but also all other potentially innocent explanations for white voters' rejection of minority-preferred candidates. Factors that might legitimately lead white voters to withhold support from particular minority candidates include, for example, limited campaign funds, inexperience, or a reputation besmirched by scandal. Because these additional factors map only imperfectly onto partisan affiliation, detailed multivariate analysis might then be the evidence of choice. The argument would then be that without this additional inquiry, courts that confine their scrutiny to partisan voting might well find racial bloc voting in circumstances where the losses of minority-preferred
This argument possesses considerable force. Certainly, the allocation of proof in § 2 cases must reflect the central purpose of the Voting Rights Act and its intended liberality as well as the practical difficulties of proof in the real world of trial. In countless areas of the law weighty legal conclusions frequently rest on methodologies that would make scientists blush. The use of such blunt instruments in examining complex phenomena and corresponding reliance on inference owes not so much to a lack of technical sophistication among judges, although this is often true, but to an awareness that greater certitude frequently may be purchased only at the expense of other values. Here, we are told that we cannot ignore the significant and, assertedly, unacceptable substantive consequences that would accompany a more nuanced bloc voting inquiry. Requiring plaintiffs affirmatively to establish that white voters' rejection of minority-preferred candidates was motivated by racial animus would make racial bloc voting both difficult and, considering the additional analysis that would be needed, expensive to establish. See, e.g., McCrary, Discriminatory Intent: The Continuing Relevance of "Purpose" Evidence in Vote-Dilution Lawsuits, 28 How.L.J. 463, 492 (1985). Moreover, it would facilitate the use of thinly-veiled proxies by permitting, for example, evidence that a minority candidate was regarded as "unqualified" or "corrupt" to defeat a claim that white voters' refusal to support him was based on race or ethnicity. The argument continues that an inquiry into causation beyond partisan affiliation seems inconsistent with the fundamental division between "partisan politics" and "racial vote dilution" set out by the Court in Whitcomb and White and confirmed by Congress. Legal standards of necessity reflect a balance of competing considerations. Finally, the argument continues that limiting the racial bloc voting inquiry to a determination whether or not divergent voting patterns are attributable to partisan differences or an underlying divergence in interests best captures the mandate of § 2.
Finally, we recognize that even partisan affiliation may serve as a proxy for illegitimate racial considerations. Minority voters, at least those residing in the contested counties in this case, have tended uniformly to support the Democratic Party. At the same time, a majority of white voters in most counties have consistently voted for district court candidates fielded by the Republican Party. Noting this persistent, albeit imperfect correlation between party and race, plaintiffs assert that a determination that partisan affiliation best explains voting patterns should not foreclose § 2 liability in this case because the Republican and Democratic Parties are proxies for racial and ethnic groups in Texas. Whitcomb's distinction between "racial vote dilution" and "political defeat at the polls" should not control, they contend, for "partisan politics" is "racial politics."
We fully agree with the plaintiffs that the bloc voting inquiry, like the "question whether the political processes are `equally open,'" must rest "upon a searching practical evaluation of the `past and present reality.'" S.Rep. 417 at 30 (quoting White, 412 U.S. at 769-770, 93 S.Ct. at 2341), reprinted in 1982 U.S.Code Cong. & Admin.News at 208. Indeed, the refusal of Congress and the Supreme Court to equate losses at the polls with actionable vote dilution where these unfavorable results owe more to party than race may be traced directly to this "functional" view of political life. Plaintiffs are therefore entirely correct in maintaining that courts should not summarily dismiss vote dilution claims in cases where racially divergent voting patterns correspond with partisan
We do not agree, however, that a "functional" and "practical" review of Texas judicial elections exposes political parties as proxies for race or ethnicity. In assessing the record before us, we do not indulge in the hopeful yet unrealistic assumption that decisions to support particular political parties among black and white voters in all cases rest on issues other than race. We instead focus on the same two factors cited by the Court in Whitcomb and the concurring Justices in Gingles. First, white voters constitute the majority of not only the Republican Party, but also the Democratic Party, even in several of the counties in which the former dominates. In Dallas County, for example, 30-40% of white voters consistently support Democrats, making white Democrats more numerous than all of the minority Democratic voters combined. The suggestion that Republican voters are galvanized by a "white" or "anti-minority" agenda is plausible only to the extent that the Democratic Party can be viewed as a vehicle for advancing distinctively minority interests, which clearly is not the case. At the same time, white Democrats have in recent years experienced the same electoral defeats as minority voters. If we are to hold that these losses at the polls, without more, give rise to a racial vote dilution claim warranting special relief for minority voters, a principle by which we might justify withholding similar relief from white Democrats is not readily apparent. See Whitcomb, 403 U.S. at 153, 91 S.Ct. at 1874.
Second, both political parties, and especially the Republicans, aggressively recruited minority lawyers to run on their party's ticket. Consequently, white as well as minority voters found themselves not infrequently voting against candidates sharing their respective racial or ethnic backgrounds in favor of their party's nominee. In particular, the undisputed evidence discloses that white voters in most counties, both Republican and Democratic, without fail supported the minority candidates slated by their parties at levels equal to or greater than those enjoyed by white candidates, even where the minority candidate was opposed by a white candidate. In Dallas County, for example, Judge Wright, a black woman, received the greatest recorded percentage of the white vote (77%) in her race against a white Democrat. To conclude on this record that political parties serve as proxies for race is simply unwarranted. Because the evidence in most instances unmistakably shows that divergent voting patterns among white and minority voters are best explained by partisan affiliation, we conclude that plaintiffs have failed to establish racial bloc voting in most, but not all, of the counties.
E. Two Objections
The Houston Lawyers' Association and amicus the United States raise two particular objections that merit additional consideration. These arguments closely track those made by Justice Brennan — arguments rejected by five members of the Supreme Court in Gingles. Nevertheless, the urgency with which they are pressed here warrants a further explanation of the reasons underlying the views expressed by Justice White and Justice O'Connor in their separate opinions.
The Association contends that a requirement that plaintiffs prove that their failure to elect representatives of their choice is attributable to white bloc voting rooted in racial considerations is presumptively inconsistent with § 2's focus on "results." The Association reads this test to impose on plaintiffs the burden of affirmatively establishing that white voters are motivated by racial animus in selecting candidates. So characterized, the racial bloc voting standard we apply today allegedly contravenes the fundamental purpose of the 1982 amendments by reintroducing the "intent" test announced in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). See also Richard L. Engstrom, The Reincarnation of the Intent Standard: Federal Judges and At-Large Election Cases, 28 How.L.J. 495, 498 (1985). That is not so.
More importantly, the Association's contention that an inquiry into the explanations underlying racially divergent voting patterns somehow conflicts with Congress' abandonment of the intent requirement announced in Bolden completely ignores the fact that the Senate Report expressly adopted the standard we employ in codifying the "results" test. Indeed, like Justice Marshall in Bolden itself, see 446 U.S. at 109, 100 S.Ct. at 1522 (Marshall, J., dissenting), the Senate Report reiterated Whitcomb's holding that "[t]he failure of the ghetto to have legislative seats in proportion to its population emerges more as a function of losing elections than of built-in bias against poor Negroes" precisely in order to show that "intent had [not] been required to prove a violation." S.Rep. 417 at 21 (quoting Whitcomb, 403 U.S. at 153, 91 S.Ct. at 1874), reprinted in 1982 U.S.Code Cong. & Admin.News at 198. In keeping with Whitcomb, the Senate Report equated "racial bloc voting" with proof that "race is the predominant determinant of political preference." Id. at 33, reprinted in 1982 U.S.Code Cong. & Admin.News at 211. The Association's assertion that the test we confirm today is inconsistent with "the goals Congress sought to achieve" in amending § 2 becomes plausible only if Whitcomb is purged from our voting rights jurisprudence. It is therefore not coincidental that its brief, like Justice Brennan's opinion, see Gingles, 478 U.S. at 61-74, 106 S.Ct. at 2772-79, fails to include a citation, let alone a discussion, of the decision Congress intended to codify.
The United States offers a second argument incorporating elements of Justice O'Connor's as well as Justice Brennan's opinion in Gingles. The government agrees with Justice O'Connor that an inquiry into the causes underlying polarized voting is appropriate in certain circumstances. It follows Justice Brennan, however, in maintaining that evidence tending to show that divergent voting patterns are attributable to partisan affiliation or a divergence in interests rather than race is irrelevant in assessing whether plaintiffs have established legally significant white bloc voting. We disagree with this argument as well.
The United States' assertion that partisan affiliation cannot serve to explain voting patterns finds no support in Justice O'Connor's opinion. The very inquiry it seeks to exclude — whether election returns track "an underlying divergence in the interests of minority and white voters," — was the only nonracial cause expressly cited in her opinion as a possible explanation of divergent voting patterns. See Gingles, 478 U.S. at 100, 106 S.Ct. at 2792 (O'Connor, J., concurring).
The United States argues that the political differences frequently observed among white
This argument is not without force; it is, however, clearly foreclosed by the Senate Report. Congress was not unaware that political preference often correlates strongly with socioeconomic status; particularized needs clearly give rise to particularized interests. This observation did not, however, lead Congress to soften the line between partisan politics and racial vote dilution established by the Court in Whitcomb. To the contrary, the Senate Report not only adopted Whitcomb's holding without modification, but expressly reminded its readers in so doing that the vote dilution claim dismissed by the Whitcomb Court as "a mere euphemism for political defeat at the polls" had been brought by "black ghetto residents with [distinct] legislative interests." S.Rep. 417 at 20, reprinted in 1982 U.S.Code Cong. & Admin.News at 198. The argument pressed here by the United States has been acknowledged, and rejected, by Congress.
The Senate factor cited by Justice Brennan in support of his refusal to attach relevance to a divergence of interests expressly relates, not to whether minority groups have been able to elect representatives of their choice, but to "the extent to which members of the minority group ... bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate in the political process." S.Rep. 417 at 29 (emphasis added), reprinted in 1982 U.S.Code Cong. & Admin.News at 206. As the Court in Chisom v. Roemer confirmed, § 2 plaintiffs "must allege an abridgement of the opportunity to participate in the political process and to elect representatives of one's choice." ___ U.S. at ___, 111 S.Ct. at 2365 (emphasis in original). The effects of past discrimination, as the text of the Senate Report indicates, pertain solely to the "political access" prong of a § 2 claim. It is by considering these effects in this regard, not in the bloc voting inquiry, that courts give effect to congressional intent. The United States' approach, by contrast, would allow this single factor to assume dispositive significance in both of these inquiries. In so doing, it would permit liability to attach, in direct conflict with the Senate Report, upon "the mere existence of underrepresentation plus a history of dual schools." S.Rep. 417 at 34, reprinted in 1982 U.S.Code Cong. & Admin.News at 212. Electoral losses that are attributable to partisan politics do not implicate the protections of § 2.
IV. Other Legal Errors Affecting the Vote Dilution Inquiry
Defendants cite three additional legal errors that allegedly infect the district court's findings of illegal vote dilution in each of the counties. Specifically, they argue that the district court erred in: (1) excluding elections pitting Hispanic candidates against white candidates in counties in which the evidence unmistakably showed that black and Hispanic voters were cohesive; (2) refusing to consider the paucity of minority lawyers in assessing the extent to which members of minority groups had been elected to the district court; and (3) finding that the effects of past discrimination hindered the ability of minority groups to participate in the political process despite the presence of little or no evidence suggesting that their participation was in fact depressed. We examine these issues in turn.
A. Cohesiveness of Different Minority Groups
The importance of the distinction in § 2 jurisprudence between illegal vote dilution and political defeat, between protecting racial minorities and fostering the work of political coalitions, raises the stakes for the question whether different racial or ethnic minority groups, usually blacks and Hispanics, may combine to form a single minority group within the meaning of the Voting Rights Act.
This issue is raised today in the context of the particular elections to which the district court looked as part of its inquiry into racial bloc voting. This court has consistently held that elections between white candidates are generally less probative in examining the success of minority-preferred candidates, generally on grounds that such elections do not provide minority voters with the choice of a minority candidate. See, e.g., Campos v. City of Baytown, 840 F.2d 1240, 1245 (5th Cir.1988); Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 503 (5th Cir.1987). For this reason, courts usually focus on those elections involving black or Hispanic candidates in examining whether black or Hispanic voters enjoy an equal opportunity to elect representatives of their choice. Where blacks and Hispanics are cohesive, we have held that the relevant elections are those including either Hispanic or black candidates. See, e.g., Baytown, 840 F.2d at 1245. Defendants contend that the district court erred in refusing to consider elections pitting Hispanic and white candidates in Harris and Tarrant Counties, counties in which plaintiffs proceed on behalf of black voters only, but where the evidence indisputably showed that blacks and Hispanics were politically cohesive. In light of our precedents, we must agree.
Blacks and Hispanics have joined forces for purposes of this suit in Midland, Lubbock, and Ector Counties. In these counties, white-Hispanic elections are relevant in proving legally significant white bloc voting, for the Hispanic candidate provides the combined Hispanic-black minority with a viable minority choice. But plaintiffs contend that where they represent only black voters, white-Hispanic elections in which the Hispanic candidate received the support of black voters are irrelevant. A difference in litigation strategy cannot support this distinction. Cohesion is a fact, not a strategic card to be played at the caprice of a plaintiff. As we stated in Campos, "if the statistical evidence is that Blacks and Hispanics together vote for the Black or Hispanic candidate, then cohesion is shown." Id. at 1245 (footnote omitted). If blacks and Hispanics vote cohesively, they are legally a single minority group, and elections with a candidate from this single minority group are elections with a viable minority candidate.
Plaintiffs next argue that there is evidence in the record that blacks and Hispanics are not politically cohesive in Harris and Tarrant Counties. They do not tell us to which evidence they refer, and understandably so. The record shows that blacks and Hispanics were more cohesive in Harris and Tarrant Counties than in Midland and Ector Counties, counties in which plaintiffs represent both blacks and Hispanics and the district court found cohesion.
In Harris County, Taebel studied 45 elections in which he determined the percentage of black and Hispanic votes cast for the minority/winning candidate. In 35 elections the black and Hispanic vote percentages varied by less than 10%. Similarly, the levels of black and Hispanic support for the same candidate were within ten percentage points in 13 of the 17 elections studied in Tarrant County. In Midland County, by contrast, the black and Hispanic voting percentages differed by less than 10% in only 4 of the 8 elections analyzed; in Ector County, this close correlation between the preferences of Hispanic and black voters was shown in just 2 of 10 elections. Under the present law of this circuit, there is no error in the district
B. Relevance of Small Number of Minority Lawyers
The absence of minority office holders is typically an important consideration in dilution cases. In this litigation, the small number of minority judges in the target counties has been the cornerstone of the plaintiffs' proof.
The office of district judge has more eligibility requirements than the age and citizenship prerequisites of many public offices. A person must be a licensed attorney in the state of Texas for four years, and a resident of the district for two years, before becoming eligible for the post. The need for district judges to be experienced lawyers is obvious.
Undisputed evidence shows that in all of the counties, the percentage of minority lawyers was much smaller than the percentage of minority voters. In fact, minority lawyers disproportionately serve as judges, when their percentage among all eligible lawyers is considered. It is true that we have refused "to preclude vote dilution claims where few or no [minority] candidates have sought offices in the challenged electoral system." Westwego Citizens for Better Gov't v. City of Westwego, 872 F.2d 1201, 1208 n. 9 (5th Cir.1989) (Westwego I). That holding is a far cry from the conclusion that the number of minority candidates eligible to run has no relevance. Section 2 and the Senate Report instruct us to consider the number of minority candidates elected to office. At the same time, we are instructed to evaluate the totality of the circumstances with a "`functional' view of the political process." Gingles, 478 U.S. at 45, 106 S.Ct. at 2764. The cold reality is that few minority citizens can run for and be elected to judicial office. A functional analysis of the electoral system must recognize the impact of limited pools of eligible candidates on the number of minority judges that has resulted. See Southern Christian Leadership Conf. of Ala. v. Evans, 785 F.Supp. 1469, 1476-77 (M.D.Ala.1992).
The record discloses that at times during the 1980's, the percentage of minority judges in five targeted counties exceeded the percentage of minority lawyers who were eligible to run for district judge. The following table summarizes the evidence.
------------------------------------------------------------------------------- Table IV.B County Minority Judges as Minority Lawyers as Minority Voters %age of District %age of Eligible as %age of Voting Judges, 1988 Lawyers, 1989 Age Population ------------------------------------------------------------------------------- Dallas 8.3 1.0 16.0 (black) Harris 5.1 3.8 18.2 (black) Tarrant 13.0 2.4 10.4 (black) Bexar 26.3 11.4 41.4 (Hispanic) Travis 7.7 2.7 14.4 (Hispanic) Jefferson 0.0 3.1 24.6 (black) Lubbock 0.0 5.1 21.6 (both) Midland 0.0 3.2 19.7 (both) Ector 0.0 4.0 21.9 (both) -------------------------------------------------------------------------------
The absence of eligible candidates goes a long way in explaining the absence of minority judges. Plaintiffs cannot emphasize the scarcity of successful minority candidates to support the inference of dilution and simultaneously urge that the number of minorities eligible to run is not relevant. Plaintiffs argue that this factor may not be considered because the limited number of minority lawyers was caused by state discrimination in education. We are not persuaded this argument merits exclusion of the evidence. The Voting Rights Act responds to practices that impact voting; it is not a panacea addressing social deficiencies. See Presley v. Etowah County Comm'n, ___ U.S. ___, ___, 112 S.Ct. 820, 832, 117 L.Ed.2d 51 (1992).
C. Past Discrimination
The district court also found that Texas' history of discrimination "touched many aspects of the lives of minorities in the Counties in question including their access to and participation in the democratic system governing this State and their socio-economic status."
Texas' long history of discrimination against its black and Hispanic citizens in all areas of public life is not the subject of dispute among the parties. Nor has anyone questioned plaintiffs' assertion that disparities between white and minority residents in several socioeconomic categories are the tragic legacies of the State's discriminatory practices. Defendants do argue, however, that these factors, by themselves, are insufficient to support the district court's "finding" that minorities do not enjoy equal access to the political process absent some indication that these effects of past discrimination actually hamper the ability of minorities to participate. We again agree.
It would seem tautological that a factor directing courts to determine whether past discrimination hinders a minority group's access to the political process would require a showing that the group does not in fact participate to the same extent as other citizens. Nevertheless, prior to the amendments to § 2, this court held that evidence of decreased participation among minorities was unnecessary on grounds that "[i]nequality of access is an inference which flows from the existence of economic and educational inequalities." Kirksey v. Board of Supervisors, 554 F.2d 139, 145 (5th Cir.1977) (en banc). This standard, however, was challenged by some of our later cases, see, e.g., McIntosh Cty. NAACP v. City of Darien, 605 F.2d 753, 759 (5th Cir.1979), and was decisively rejected by Congress in 1982. As the Senate Report stated:
S.Rep. 417 at 29 n. 114 (emphasis added), reprinted in 1982 U.S.Code Cong. & Admin.News at 207 n. 114. As this statement discloses, the Senate Report, while not insisting upon a causal nexus between socioeconomic status and depressed participation, clearly did not dispense with proof that participation in the political process is in fact depressed among minority citizens. In apparently holding that socioeconomic disparities and a history of discrimination, without more, sufficed to establish these Zimmer factors, the district court employed the wrong legal standard.
Nor do we believe that the record before us can support such a finding under the proper test. Plaintiffs have offered no evidence of reduced levels of black voter registration, lower turnout among black voters, or any other factor tending to show that past discrimination has affected their ability to participate in the political process. While there are indications that Hispanic citizens register to vote at a lower rate than white and black citizens, this data provides support for such a finding in only Bexar and Travis Counties, where plaintiffs proceed on behalf of Hispanic voters only.
Plaintiffs contend that the district court could have relied on the opinion offered by Dr. Brischetto, who, during his testimony regarding Bexar County, stated:
Brischetto's statement, as its tone suggests, was not so much a finding as a prediction or hypothesis about what one might expect to find among minorities who still bore the scars of past discrimination. It is for this reason that he could claim that his testimony regarding the participation of Hispanics in Bexar applied with equal force to all of the other counties. In fact, the nature and basis of his opinion became explicit as the testimony shifted to these other locales. In Travis County, for example, he stated only that "stratification ... may very well also be an indication of the fact that Hispanics are less likely to participate fully and effectively in the electoral system in Travis County." In Lubbock, Brischetto stated only that "I think [such stratification] is an indication that minorities are less equipped with those resources that they need to participate fully in the political system." Finally, he testified in the context of Tarrant County that socioeconomic differences "indicate that minorities may have a diminished ability to participate fully in the electoral system because of their lower status and stratification that exists in that community."
Brischetto's testimony thus provides support for the common sense proposition that depressed political participation typically accompanies poverty and a lack of education; it certainly does not amount to proof that minority voters in this case failed to participate equally in the political processes. A district court's findings under § 2 must rest on an "intensely local appraisal" of the social and political climate of the cities and counties in which such suits are brought, White, 412 U.S. at 769, 93 S.Ct. at 2341, not the sort of generalized armchair speculation supplied by Dr. Brischetto. We need evidence, not musings.
Plaintiffs also contend that minority citizens' lack of financial resources makes it very difficult for minority-preferred candidates to secure funds sufficient to run creditable county-wide campaigns. Here again, the inference plaintiffs ask us to draw might well be true in most cases; regardless of its general validity, however, it is no substitute for proof that a minority group's poverty has had the predicted effect in this particular
Witnesses Coronado and Fitch did testify that minority candidates generally were unable to raise the money necessary to run county-wide. When asked about the only district court campaign in which he was personally involved, however, Coronado made no mention of money problems. In fact, he testified that "[Judge Gallardo] ran a very good campaign. I mean he was, he understood the media, had people out working boxes, he had a lot of attorneys of all ethnic groups working in his campaign, a broad base campaign in the community." Similarly, Fitch asserted that black incumbents had difficulty raising funds, but she attributed this difficulty to "racial discrimination" and black candidates' "past record of losing."
In contrast with the highly equivocal testimony of Fitch and Coronado concerning their impressions of the barriers facing minority candidates, nearly all such candidates who appeared at trial reported that they had outspent their white opponents, often by a very large amount. In Midland County, for example, Watson testified that she outspent her white opponent in the general election for Justice of the Peace by a factor of six. In Dallas County, Joan Winn White, Tinsley, H. Ron White, and Oliver all testified that they had run extensive, well-financed campaigns. In particular, Oliver stated that he spent $300,000 in a losing effort. The same was true of minority-preferred candidates in Harris County. Lee testified that she outspent her white opponent at a rate approaching twelve to one; Berry stated that the ratio in his campaign for district court was even greater. Finally, Leal testified that he raised $85,000 to $90,000 to his opponent's $1,000. A district court's findings may only rest on the evidence presented at trial. The record before us does not remotely suggest that the visible scars of discrimination have left minority-preferred candidates and their supporters within minority communities without the funds needed to launch broad-based, county-wide campaigns. In fact, the available evidence shows just the opposite. For this reason, we must conclude that plaintiffs have not established that the effects of past discrimination have hindered their ability to participate in the political process.
V. Texas' Linkage Interest
This case involves 172 judicial districts that coincide with nine Texas counties. Given the State of Texas' county-based system of venue, this venerable structure links the jurisdictional and electoral bases of the district courts. In doing so, the structure advances the state's substantial interest in judicial effectiveness. Trial judges are elected by a broad range of local citizens, rather than by a narrow constituency. This electoral scheme balances accountability and judicial independence.
As explained in detail below, the state's interest in maintaining the structure of this single-member judicial office must be weighed in the totality of circumstances to determine whether a § 2 violation exists. The weight of a substantial state interest, determined as a matter of law, is balanced against localized evidence of racial vote dilution. This substantial state interest may be overcome only by evidence that amounts to substantial proof of racial dilution. Otherwise, the at-large election of district court judges does not violate § 2.
A. The Structure of Texas District Courts
The district courts are the primary trial courts in Texas. District judges were first elected in 1850, five years after statehood, and every state constitution since 1861 has provided for their election by county residents. All voters of the entire county elect all the district judges of their county. The political boundaries of each county are the boundaries of the jurisdiction and election base in all of the challenged counties.
The electoral bases of district judges are linked to the area over which they exercise primary jurisdiction. This linkage has been in place throughout the 143 year history of judicial elections in Texas. By making coterminous the electoral and jurisdictional bases of trial courts, Texas advances the effectiveness of its courts by balancing the virtues of accountability with the need for independence. The state attempts to maintain the fact and appearance of judicial fairness that are central to the judicial task, in part, by insuring that judges remain accountable to the range of people within their jurisdiction. A broad base diminishes the semblance of bias and favoritism towards the parochial interests of a narrow constituency. Appearances are critical because "the very perception of impropriety and unfairness undermines the moral authority of the courts." John L. Hill, Jr., Taking Texas Judges Out of Politics: An Argument for Merit Election, 40 Baylor L.Rev. 339, 364 (1988). The fear of mixing ward politics and state trial courts of general jurisdiction is widely held. It is not surprising then that states that elect trial judges overwhelmingly share this structure and electoral scheme. See infra note 30. The systemic incentives of subdistricting are those of ward politics, and would "diminish the appearance if not fact of its judicial independence — a core element of a judicial office." LULAC II, 914 F.2d at 650 (Higginbotham, J., concurring).
B. The Role of Function Under § 2
In Houston Lawyers' Association v. Attorney General, ___ U.S. ___, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991), the Supreme Court agreed that the interests behind the existing court structure must be considered.
Id. at ____, 111 S.Ct. at 2381.
Justice Stevens noted that Texas' interest in linking electoral and jurisdictional bases is "a legitimate factor to be considered by courts among the `totality of circumstances' in determining whether a § 2 violation has occurred." Id. The Court was not persuaded that this "linkage" interest should defeat liability "automatically, and in every case." Rather, Houston Lawyers' held that the interest must be weighed against other relevant factors to ascertain whether the interest "outweigh[s] proof of racial vote dilution." Id. See also Nipper v. Chiles, 795 F.Supp. 1525, 1548 (M.D.Fla.1992) (holding that "a state's interest in maintaining an electoral system is a legitimate factor to be considered ... in the liability phase of a section two case").
An examination of Houston Lawyers' further illuminates why the state interests behind an office's structure and function must be weighed. The Court held that single-member office elections are within the scope of § 2. Houston Lawyers', ___ U.S. at ___, 111 S.Ct. at 2380. This holding reached beyond judicial elections. "[T]he coverage of the Act encompasses the election of executive officers and trial judges whose responsibilities are exercised independently in an area coextensive with the districts from which they are elected." Id. (emphasis added). It appears from this language that an office such as mayor or sheriff is subject to § 2 scrutiny, requiring an analysis of the totality of circumstances to determine whether illegal vote dilution exists. While that analysis is
Therefore, while the Supreme Court rejected the contention that the linkage interest in all cases defeated liability under § 2, the Court endorsed the position that the linkage interest is relevant to a determination of liability. Indeed, by noting that the linkage interest does not "automatically, and in every case, outweigh proof of racial vote dilution," the Court held that the state interest could outweigh what would otherwise be proof of illegal dilution and thus foreclose liability. As one commentator has noted:
Mary T. Wickham, Note, Mapping the Morass: Application of Section 2 of the Voting Rights Act to Judicial Elections, 33 Wm. & Mary L.Rev. 1251, 1285 (1992).
The issue we face is determining when the linkage interest will outweigh other factors and defeat liability under § 2. In resolving this issue, we reject the polar extremes of the parties. The State of Texas maintains that the linkage interest must defeat liability in every case, regardless of the other circumstances in the totality. The Supreme Court rejected this position when it held that the linkage interest does not "automatically, and in every case, outweigh proof of racial vote dilution." Houston Lawyers', ___ U.S. at ___, 111 S.Ct. at 2381.
We also reject the position of plaintiffs that the linkage interest can never defeat liability under the totality of circumstances if "illegal" dilution is otherwise established. The plaintiffs maintain that only the absence of a compelling state interest in an electoral scheme is relevant to liability, and that such an absence "is an optional factor" that plaintiffs can use to support a finding of illegal dilution. They contend, however, that the existence of a compelling interest can never defeat liability that is otherwise established under the totality of the circumstances. This position is foreclosed by the Supreme Court, which directed that this state interest is to be weighed as part of the totality of the circumstances. Id.
Citing Jones v. City of Lubbock, 727 F.2d 364, 383 (5th Cir.1984), and United States v. Marengo County Comm'n, 731 F.2d 1546, 1571 (11th Cir.1984), plaintiffs urge that the Zimmer factor of a non-tenuous state policy is among the least important of the factors for determining dilution. These decisions state only that defendants cannot defeat liability by using the non-tenuous policy justification of an electoral scheme to prove that scheme "does not have a discriminatory intent." Marengo County, 731 F.2d at 1571. See also Terrazas v. Clements, 581 F.Supp. 1319, 1345 n. 24 (N.D.Tex.1983) (three-judge panel) ("In the case of tenuousness, the lesser weight is consistent with the change in emphasis from intent to results. The principal probative weight of a tenuous state policy is its propensity to show pretext.").
The plaintiffs' argument misses the point. The State of Texas has done more than assert that its interest in this electoral scheme is not tenuous — that is, not a pretext masking discriminatory intent in the adoption or maintenance of the scheme. The interest in linking electoral to jurisdictional base takes on additional and distinct relevance because it advances objectively substantive goals. The inquiry into whether an interest is substantial goes beyond inquiring whether the interest is non-tenuous. A substantial state interest must be more than racially-neutral. Thus, the linkage interest is not examined just because it proves that the state's practice is premised on a racially-neutral policy and is consistently applied. Cf. S.Rep. 417 at 29 n. 117, reprinted in 1982 U.S.Code Cong. & Admin.News at 207 n. 117.
Having rejected the proffered extremes — that the linkage interest either always or never defeats § 2 liability — we turn to when the linkage interest precludes a § 2 violation. This question depends upon the weight of the interest.
C. Weight of State's Interest Is Matter of Law
The plaintiffs urge that the weight or substantiality of Texas' linkage interest is an issue of fact for the district court to decide in the first instance, reviewable only for clear error. We disagree. Deciding whether the adoption or maintenance of a system is a pretext for racial discrimination may present a question of fact.
The Supreme Court has held that the finding of dilution is a factual matter reviewable only for clear error. Gingles, 478 U.S. at 78, 106 S.Ct. at 2780-81. A substantial state interest is not inherently preclusive of dilution and is not raised to disprove the existence of dilution. Rather, the state's interest is weighed against proven dilution to assess whether such dilution creates § 2 liability. Houston Lawyers', ___ U.S. at ___, 111 S.Ct. at 2381 (weighing of linkage interest on remand goes to determination of whether interests "outweigh proof of racial vote dilution").
Determining the substantiality of Texas' linkage interest under the Voting Rights Act, a statute enacted to enforce the guarantees of the Civil War Amendments, is analogous to weighing the asserted state interest in constitutional law contexts. With issues of substantive due process, equal protection, and the First Amendment, the weight of a state's interest has always been a legal question, not a factual one. For example, in Posadas de Puerto Rico Ass'n v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341, 106 S.Ct. 2968, 2977, 92 L.Ed.2d 266 (1986), the Court had "no difficulty in concluding that the Puerto Rico Legislature's interests in the health, safety, and welfare of its citizens constitutes a `substantial' governmental interest." In reaching this conclusion, the Court itself determined the weight of the state interest. See also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (weighing state's interest de novo). We hold that the substantiality of Texas' interest under § 2 is a question of law for this court to determine de novo and not a question of fact that somehow will be described on a county-by-county basis.
D. Determining the Weight of the Linkage Interest
The weight of Texas' interest is virtually assigned by a Supreme Court decision handed down on the same day as Houston Lawyers'. In Gregory v. Ashcroft, ___ U.S. ___, ___, 111 S.Ct. 2395, 2404, 115 L.Ed.2d 410 (1991), the Supreme Court held that the Age
"The people of Missouri have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform." Id. at ___, 111 S.Ct. at 2407. If that interest is compelling, the people of Texas have at least a substantial interest in defining the structure and qualifications of their judiciary. Indeed, Texas' Attorney General has submitted to this court that linkage is a "fundamental right" that "serves [a] compelling interest" of the State of Texas. Linking electoral and jurisdictional bases is a key component of the effort to define the office of district judge. That Texas' interest in the linkage of electoral and jurisdictional bases is substantial cannot then be gainsaid.
Our confidence in this conclusion is bolstered by the recognition and pursuit of the linkage interest in other states. Courts have recognized the legitimacy and substance of similar linkage interests in Florida and Alabama. See Nipper v. Chiles, 795 F.Supp. 1525, 1548 (M.D.Fla.1992); Southern Christian Leadership Conf. of Ala. v. Evans, 785 F.Supp. 1469, 1478 (M.D.Ala.1992). Of the twenty-nine states that elect their principal trial court judges, including Texas, Alabama, and Florida, twenty-five employ district-wide elections.
The decision to make jurisdiction and electoral bases coterminous is more than a decision about how to elect state judges. It is a decision of what constitutes a state court judge. Such a decision is as much a decision about the structure of the judicial office as the office's explicit qualifications such as bar membership or the age of judges. The collective voice of generations by their unswerving adherence to the principle of linkage through times of extraordinary growth and change speaks to us with power. Tradition, of course, does not make right of wrong, but we must be cautious when asked to embrace a new revelation that right has so long been wrong. There is no evidence that linkage was created and consistently maintained to stifle minority votes. Tradition speaks to us about its defining role — imparting its deep running sense that this is what judging is about.
On the other hand, plaintiffs' interests are not well-served by destroying linkage. The inescapable truth is that the result sought by plaintiffs here would diminish minority influence.
The distrust of judicial subdistricts does not rest on paternalism. It recognizes Texas' historic interest in having district judges remain accountable to all voters in their district. Regardless of the race or residency of particular litigants, judges make choices that affect all county residents. Texas has insisted that trial judges answer to all county voters at the ballot box. Unlike legislators or even appellate judges, who make decisions in groups, each district judge holds a single-member office and acts alone. When collegial bodies are involved, all citizens continue to elect at least one person involved in making a particular decision. While subdistricting for multimember offices can enhance minority influence because members from minority subdistricts participate in and influence all of the decisions of the larger body, subdistricting for single-member district court judgeships would leave minority voters with no electoral influence over the majority of judges in each county. Subdistricting would partially disenfranchise citizens to whom all district judges in a county are now accountable.
By contrast, under the present regime, minority voters participate in all judicial elections in each county. This participation gives minority voters the opportunity to influence all elections, absent significant racial vote dilution. As Justice O'Connor noted in her concurring opinion in Gingles, voters can wield influence over elections even when those votes are cast for losing candidates. Gingles, 478 U.S. at 98-99, 106 S.Ct. at 2791 (O'Connor, J., concurring). Denying importance to this ability to influence asks that all measures of success be found in the win-loss column. This mandates proportional representation as the measure of dilution, contrary to the explicit terms of § 2. Indisputably, subdistricting would assure the absence of minority influence over the judicial process. See LULAC II, 914 F.2d at 649-50 (Higginbotham, J., concurring); Southern Christian Leadership Conf. of Ala. v. Evans, 785 F.Supp. 1469, 1478 (M.D.Ala.1992) (Hobbs, J.) (by subdistricting judicial positions, "black voters ... will ... be sacrificing [an] extremely valuable political right — the right to vote for all of the judges who will be serving as judges in the circuit wherein they live").
Plaintiffs contend that linking jurisdictional and electoral bases does not, in fact, protect these uniquely judicial interests. All of the plaintiffs' arguments reduce to the single contention that Texas does not consistently apply the policy of linking jurisdictional and electoral bases.
Before addressing these arguments, we note that in assessing the relationship between the end pursued and the means employed, "our scrutiny will not be so demanding where we deal with matters resting firmly within a State's constitutional prerogatives." Sugarman v. Dougall, 413 U.S. 634, 648, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973). As both Sugarman and Gregory make clear, such matters include "the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders." Sugarman, 413 U.S. at 648, 93 S.Ct. at 2851. Examining Texas' linking of electoral and jurisdictional bases in light of
The plaintiffs contend that Texas district judges often adjudicate controversies involving litigants who are not residents of the county. Defendants make several responses. First, they maintain that because a district judge's area of primary jurisdiction is defined by county-specific venue rules, most residents of a county will have their disputes adjudicated by judges they elect. Second, the residency of particular litigants is not that important. Regardless of the identity of litigants in a case, a district judge may make decisions or grant relief that impact primarily upon the residents of the district.
By drawing attention to venue, plaintiffs only remind us of concerns unique to the district judge's office. Venue rules preserve judicial fairness by preventing forum-shopping and diminishing the chances of biased adjudication. At the same time, the rules keep most local matters in local courts, where local juries are drawn and judges are accountable to voters for the legal and policy choices they make.
Similarly, family law matters will almost always be handled by the local district court. See, e.g., Tex.Fam.Code Ann. §§ 3.21, 11.04 (Vernon 1986) (concerning venue in divorce and parent-child relationship suits). Quintessentially local matters such as suits against counties or disputes involving title to real property must be tried in the district court of the same county. Tex.Civ.Prac. & Rem.Code §§ 15.001, 15.015 (Vernon 1986). Whatever the area of practice — whether civil, criminal, or family law — the conclusion reached in the concurring opinion in LULAC II remains valid. "[T]he state recognized that elimination of [the] risk and appearance of bias was essential to the office it was creating by an elaborate set of rules controlling venue." 914 F.2d at 651 (Higginbotham, J., concurring). The argument that Texas' venue rules somehow abrogate its interest in linking jurisdiction and electoral bases is illusory.
Plaintiffs also challenge the legitimacy of the state interest in linkage by pointing to the use of visiting judges in the district courts. Judges not elected by a district's residents — e.g., judges from another district or retired judges — may be temporarily assigned to a district court, when necessary to dispose of its accumulated business, by the Chief Justice or regional presiding judge. Tex.Gov't Code Ann. § 74.052 (Vernon 1988).
Moreover, even if one county were to subdivide, the interest in linkage would not be lost in the state as a whole. In Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320, modified 411 U.S. 922, 93 S.Ct. 1475, 36 L.Ed.2d 316 (1973), the Supreme Court recognized that although Virginia divided one county when reapportioning its state legislature, it retained its interest in preserving boundaries of all other political subdivisions. Id. at 327, 93 S.Ct. at 986. Texas' interest in preserving the structure of its judiciary by linking jurisdictional and electoral boundaries is greater than a state's interest in observing boundaries in legislative reapportionment, because it serves substantive purposes other than convenience.
Finally, plaintiffs note that some rural district judges, and urban justices of the peace, are elected by a small number of voters. Therefore, plaintiffs contend, judges elected by narrow constituencies are not antithetical to the state's interest in judicial independence. The structure of the justice courts have no bearing on Texas' interests in maintaining its system of district courts. Justices of the peace need not be lawyers, and preside over courts whose subject matter jurisdiction is limited to less significant disputes. For instance, the justice court's criminal jurisdiction is limited to finable misdemeanors. Significantly, the justice of the peace "is powerless to issue injunctions." Bowles v. Angelo, 188 S.W.2d 691, 693 (Tex.Civ.App. — Galveston 1945, no writ). The justice court is not a court of record, so when its rulings are appealed, the cases are tried de novo before a county court judge — a judge chosen by district-wide election. In great contrast, district courts are Texas' trial courts of general jurisdiction, charged with trying felony cases and civil matters of unlimited amounts in controversy. As to rural Texas, linkage is preserved, while providing as broad a range of constituents as the countervailing problems of courthouse proximity allow.
E. Other Means to Accommodate the Linkage Interest
Plaintiffs urge that the linkage interest can be accommodated even if the existing scheme were found to be illegal. They offer two alternatives: either a complete overhaul of the existing venue scheme or the use of unconventional electoral methods that preserve at-large voting. The plaintiffs suggest that a scheme of single-member districts may preserve linkage, by making each district judge's area of primary jurisdiction co-extensive with the single-member district from which the judge is elected. Plaintiffs provide no evidence that such a radical reworking of the venue of Texas courts would be administratively feasible. The district court likewise simply asserted that such an arrangement of venue limited to a single-member district could accommodate Texas' interests, without a glance at the feasibility of such an arrangement. One look at Harris County cut into a grid of dozens of venue blocks is enough to show the bizarre nature of this proposal.
We cannot conclude that Texas' interests could be adequately accommodated by such a radical reworking of Texas' venue rules. The proposal illustrates how different the judicial offices' at-large election scheme is from legislative and executive at-large elections. Plaintiffs must propose not only changing the means by which Texas' district
The plaintiffs also contend that the linkage interest deserves little weight because it might be accommodated by remedies other than subdistricting. In particular, plaintiffs point to the use of limited voting or cumulative voting. The Supreme Court, of course, "strongly prefer[s] single-member districts for federal court-ordered reapportionment." Growe v. Emison, ___ U.S. ___, ___, 113 S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993). In any event, we do not agree that this argument undermines the substantiality of the state's interest.
The allegedly illegal facet of the existing electoral scheme is that it employs at-large elections. Both plaintiffs' amended complaint and plaintiff-intervenors' complaint-in-intervention assert that the existing "at large scheme" violates § 2, and pray for a court order "that district judges in the targeted counties be elected in a system which contains single member districts." By employing at-large elections, the people of Texas have linked the electoral and jurisdictional base of the district judge.
Limited and cumulative voting are election mechanisms that preserve at-large elections. Thus, they are not "remedies" for the particular structural problem that the plaintiffs have chosen to attack. At trial, plaintiffs attempted to prove the three Gingles prerequisites. This test establishes "that the minority has the potential to elect a representative of its own choice in some single-member district" and "that the challenged districting thwarts a distinctive minority by submerging it in a larger white voting population." Growe, ___ U.S. at ___, 113 S.Ct. at 1084. Plaintiffs then tried to supplement that evidence with proof of Zimmer factors, such as past discrimination and anti-single shot voting rules. The question presented by this lawsuit is whether Texas' at-large election of district judges violates § 2. To answer that question, we must determine the weight of the state's linkage interest. We will not discount that interest based upon purported remedies that preserve the challenged at-large scheme. Plaintiffs cannot attack at-large voting as a violation of § 2, and then ignore the special characteristics of the judicial office by insisting that they will embrace a remedy that preserves that scheme. To do so would completely shunt consideration of the interest to the remedy stage, contrary to Houston Lawyers'.
F. Balancing the State's Interest
In finding that Texas' interest is substantial, we recognize that it will not always defeat § 2 liability. Substantiality is not quantifiable, and we translate its force in the practical world of trials to the burden required to overcome it. As we see it, plaintiffs cannot overcome a substantial state interest by proving insubstantial dilution. We hold that proof of dilution, considering the totality of the circumstances, must be substantial in order to overcome the state's interest in linkage established here. As a matter of law, Texas' interest cannot be overridden by evidence that sums to a marginal case. It will take more to create a fact issue for trial. We must examine the circumstances in each county accordingly.
We do not now attempt to define in detail what sort of proof of dilution would be substantial enough to override the state's linkage interest. We do not change the nature or usual means of proof. The Gingles prerequisites and Zimmer factors remain. Two facts are especially relevant to assessing the substantiality of the plaintiffs' proof of dilution. One is the willingness of the racial or ethnic majority — in this case, white voters — to give their votes to minority candidates. The other critical fact is the ability of minority voters to elect candidates of their choice even when opposed by most voters from the majority. Among the Zimmer factors, proof of racial appeals in elections, non-responsiveness of elected officials to minority voters, and persistent lack of electoral success by minority candidates are most important.
VI. Application of Law to Each County
We now turn to the application of these principles of law in each county. As we have explained, the district court's findings of dilution are infected by erroneous legal principles. Findings that rest upon erroneous views of the law must be set aside. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Remanding for reconsideration is inappropriate where "the record permits only one resolution of the factual issue." Id. at 292, 102 S.Ct. at 1792. Here, under controlling law, the evidence will not support the findings of liability. Our analysis is common to all counties but takes us along different routes in different counties. In the six counties of Dallas, Tarrant, Travis, Midland, Ector, and Lubbock, we hold that the district court clearly erred in finding vote dilution. Even if the district court were correct, the evidence would be outweighed by the State's substantial interest in linkage. Finally, partisan voting at the least so weakens the proof of dilution that it loses in the weighing of the totality of the circumstances. Even if we assume that some dilution may be inferred, in the three remaining counties the evidence does not outweigh the State's interest in the totality of the circumstances.
One thread runs throughout the plaintiffs' case in all of the counties — an insubstantiality of proof that the minority-preferred candidate lost "on account of race." Except in Dallas County, the district court's finding of dilution rested on three recitations: (1) the Gingles prerequisites; (2) an invocation of a general history of discrimination; and (3) the number of minority judges was not proportional to the general minority population. The size of some counties and the absence of single shot voting were seen as "enhancing" Zimmer factors. The district court also found two instances of racial appeals in Dallas County, one in a judicial race won by the minority with white support.
A. Dallas County
Plaintiffs proceed on behalf of black voters in Dallas County. The voting age population of Dallas County is 1,106,757. Of this number, 180,294 (16.3%) are black. There were thirty-six different district courts in Dallas County. Until 1987, none of the judges of these districts were black. In 1987 and 1988, three of the district judges, or 8.3% of the total, were black. In 1989, there were two black district judges in Dallas County, 5.5% of the total. Today, five of the thirty-seven
The evidence in Dallas County clearly establishes that judicial elections are decided on the basis of partisan voting patterns. We are left with the inescapable conclusion that plaintiffs have failed to prove that minority-preferred judicial candidates in this county are consistently defeated by racial bloc voting. This is a failure to meet the threshold showing required by Gingles.
Uncontroverted evidence demonstrates that 99% of black Dallas voters support the Democratic candidate in every judicial election. The evidence also indicates that the majority of white voters always voted for the Republican, and thus for candidates other than the black-preferred Democratic candidate. As a result of these voting patterns, the black-preferred Democratic candidate always lost in judicial elections, regardless of the year of the election in Dallas County. The Republican Party dominated every analyzed judicial race. Defendants understandably contend that the defeat of black-preferred candidates is the result of party affiliation rather than racial considerations. According to defendants, elections are determined by straight-party voting in which voters support their party's ticket regardless of the race of the candidates. The undisputed facts overwhelmingly support this contention. Plaintiffs offer the only answer they have — the evidence is not legally relevant.
Drs. Engstrom and Taebel, plaintiffs' and defendants' experts respectively, analyzed seven district court general elections with
--------------------------------------------------------------------------------------- Table VI.A
Year Court Candidates Race Party Non-black (white) vote1980 191st District Winn B D 38.6-39.7% (36%) Howell W R 1984 Crim Dist Ct 2 Baraka B R 60.6-61.8% (61%) Metcalfe W D " Crim Dist Ct 4 Tinsley B D 28.7-30% Maloney W R " 301st District White B D 30.6-31.9% (31%) O'Donnell W R 1986 195th District Tinsley B D 36.6-37.5% (31%) Kendall W R " 256th District Wright B R 70.6-71.7% (77%) Brin W D 1988 95th District Oliver B D 36.9-37.9% (38%) Brown W R ---------------------------------------------------------------------------------------
Roughly 61%-77% of white voters consistently supported Republicans, even when black Republicans ran against white Democrats. Virtually all black voters supported the Democratic candidate, even when the Democratic candidate was white, running against black Republicans.
Black Republicans won in two of the seven analyzed district court races. According to Taebel's study, one of these Republicans, Carolyn Wright, did better among white voters than any other Republican, white or black, winning 77% of the white vote. Other black Republicans received percentages of the white vote comparable to those received by white Republicans. Judge Baraka, the other black Republican district court candidate, took about 61% of the white vote against a white Democrat. County Judge Brashear, another black Republican running at-large against a white Democrat, took 66% of the white vote in his successful race for a county court judgeship.
Just as black Republicans did as well or better than white Republicans, black Democrats also won as large a percentage of the white vote as white Democratic candidates. The white vote for Democratic candidates ranged between 23% and 39%. According to plaintiffs' exhibits, black Democrat Oliver won about 38% — a larger than average share of the white vote for a Democrat. Winn, another black Democrat, received almost four out of ten white votes. By comparison, white Democrat Brin received no more than 29% of the white vote when running against Wright, a black Republican.
Republican candidates lost the black vote and won the white vote regardless of their public positions on matters related to race. Judge Wright, for instance, had been a member of the Dallas Chapter of the Coalition of 100 Black Women; served as a legal intern for the Lawyers' Committee on Civil Rights, a project related to civil rights in South Africa; and was a charter member and past vice-chair of the National Political Congress of Black Women. By contrast, the record is silent regarding the record of her white Democratic opponent, Brin. Brin nevertheless won the black vote handily in the general election. At the same time, an overwhelming number of white voters supported Wright.
Dr. Champagne, an expert called by defendants, testified that this voting pattern was the result of straight-ticket voting. According to Dr. Champagne, judicial elections are
We are unable to find the requisite presence of race in this data. The undisputed facts permit no conclusion but that the defeat of black-preferred candidates was the result of the voters' partisan affiliation. The black-preferred candidate was always the Democratic candidate, while the majority of white voters always supported the Republican candidate. It is significant to the probe for racial influences that 30% to 40% of the white electorate supported Democratic candidates, although the combination of black and white Democratic votes was insufficient to carry the Democratic candidate. The point is that a black Democratic voter and a white Democratic voter stand in the same position. Both are unable to elect the Democratic judicial candidate they prefer.
We repeat. The race of the candidate did not affect the pattern. White voters' support for black Republican candidates was equal to or greater than their support for white Republicans. Likewise, black and white Democratic candidates received equal percentages of the white vote. Given these facts, we cannot see how minority-preferred judicial candidates were defeated "on account of race or color." Rather, the minority-preferred candidates were consistently defeated because they ran as members of the weaker of two partisan organizations. We are not persuaded that this is racial bloc voting as required by Gingles.
Plaintiffs contend that the Democratic Party better represents the political views of black voters in Dallas County. This is doubtlessly the view of black voters, but it is not relevant to whether the minority-preferred candidate is defeated on account of race. To the extent that candidates preferred by black voters are consistently defeated because of their substantive political positions, they are the casualties of interest group politics, not racial considerations. This is not the harm against which § 2 protects. Section 2 protects black voters against defeat on account of race or color, not on account of political platform. See Whitcomb, 403 U.S. at 154-55, 91 S.Ct. at 1874-75. We are sensitive to the reality that political positions can be proxies for racial prejudice. However, where white voters support black candidates of a particular party in larger percentage than they support white candidates of the same party, there is no basis, without more, for us to conclude that the parties' political positions are proxies for racial bias.
Even assuming arguendo that plaintiffs have met the Gingles threshold by showing racial bloc voting, the totality of circumstances in the record cannot support a § 2 violation. Plaintiff-intervenors Oliver, White, and Tinsley contend that "race considerations pervade elections in Dallas County." They support this proposition with the district court's finding that there were two instances of overt or subtle racial appeals in Dallas County elections. In one, judicial candidate Baraka was labeled a "Black Muslim" by his opponent. In another, district attorney candidate Vance printed his own and his opponent West's pictures in campaign literature, thus informing the electorate that he was a white candidate running against a black opponent. Nothing in the district court's opinion indicates that these racial appeals were anything more than isolated incidents. In the only judicial election affected by a racial appeal, Judge Baraka, the black candidate, won both the Republican primary and the general election, winning a majority of the white vote in both elections.
Oliver, Tinsley, and White also contended at trial that voting patterns in nonpartisan elections show that partisan affiliation could not explain the defeats of black-preferred candidates. Dr. Weiser, a statistician with experience in voting rights litigation, presented this data. Weiser examined seven Dallas City Council elections, a presidential primary, and referenda on public transit funding, a police-review board, and the city council structure. The district court made no findings about the data. Assuming arguendo
Extending our compass to the totality of circumstances fails to bring evidence that racial politics played any role in the defeat of black-preferred candidates. The district court rejected the suggestion that the Republican Party is a white slating organization. Testimony shows that any eligible candidate could run as a Republican, regardless of race. The plaintiff-intervenors testified themselves that they had been heavily lobbied by the Republican Party leadership to run on the Republican ticket. Running as Republicans, the great likelihood is that these former district judges would have been elected, as plaintiff-intervenors conceded at trial.
The plaintiffs presented general evidence of the lingering effects of past discrimination, but offered no specific evidence of depressed levels of black political participation such as low black voter registration or turnout. On the contrary, the minority-preferred candidates ran professional, well-financed campaigns backed by the Democratic Party, a party that, until the late 1970's, had dominated Dallas County judicial races just as completely as the Republican Party now dominates those races. These Democratic candidates lost because Dallas County shifted from being a county of predominantly Democratic straight-ticket voters to a county of mostly Republican straight-ticket voters.
Plaintiffs made no factual riposte to the overwhelming evidence that election outcomes were the product of partisan affiliation. Rather, plaintiffs' answer was the legal assertion that the effect of partisan affiliation, virtually admitted, is not relevant. Plaintiffs' expert, Engstrom, conceded that there is "a stronger association between partisan affiliation and success than there is between the race of the candidate and success," while clinging to the assertion that partisan affiliation does not explain all of the voting patterns in Dallas County. Finally, he conceded that he had no data that black Democrats generally did worse than white Democrats. In fact, the undisputed facts show that, when one controls for party, black candidates did as well as, or better than, white candidates in winning the white voter and elections. Plaintiff-intervenor White conceded that partisan affiliation determined her electoral defeat in 1984. She admitted that "if I ran as a Republican ... the likelihood is that I would win."
In short, the facts demonstrate that partisan affiliation, not race, was responsible for the defeat of the minority-preferred candidate in Dallas County. The district court erred in finding racial vote dilution and a violation of § 2.
B. Harris County
Harris County elects 59 district judges at-large. Three are black, three are Hispanic, and the rest are Anglo. One black county court judge also was elected at-large. Uncontested expert testimony and surveys establish that black lawyers make up at most 3.8% of the eligible lawyers, but comprise 5.1% of Harris County's district judges. According to plaintiffs' evidence, 1,685,024 people of voting age reside in Harris County; 305,986 (18.2%) are black, and 222,662 (13.2%) are Hispanic. Plaintiffs claim to represent all black voters in Harris County.
The district court found a § 2 violation based on the three Gingles prerequisites, two primary Zimmer factors, and three "enhancing" Zimmer factors. The primary Zimmer factors were (1) the general history and lingering effects of past discrimination and (2)
Defendants argue that the district court's determination that Harris County district court elections were characterized by legally significant racial bloc voting rests on two fundamental departures from controlling law. They maintain that the district court erred in (1) refusing to consider evidence demonstrating that divergent voting patterns among black and white voters were attributable to partisan affiliation and (2) excluding elections in which the black-preferred candidate was Hispanic despite overwhelming evidence that Harris County black and Hispanic voters were a cohesive group within the meaning of § 2. In light of our previous discussion, these contentions plainly have merit.
Engstrom studied only 17 district court elections involving black candidates. Taebel studied 45 Harris County judicial elections between 1980 and 1988 with either a black or Hispanic candidate, including 24 district court elections, 9 county court elections, one court of appeals election, one Supreme Court election, and ten primary elections. Taebel examined all but two of the elections analyzed by Engstrom. Including the 42 races listed in Judge Wood's exhibits, the record before the district court contained a total of 45 general elections that involved minority candidates. Forty of these were indigenous district or county court elections.
Both the exhibits and expert testimony indicated that party, not race, was the decisive factor in determining electoral outcomes. For example, when white Democrat Schuble defeated black Republican Proctor in a 1986 district court race, Proctor won the majority of the white vote, but lost more than 95% of the black vote to Schuble. Likewise, when Irvin, another black Republican, ran for a county court judgeship against white Democrat Duncan, Irvin won the white vote while Duncan received virtually all of the black vote. Kenneth Hoyt, now a United States District Judge, won the white vote and the election in his bid for the state appellate bench against a white Democratic opponent in 1984. Yet despite the endorsement of the Houston Lawyers' Association, Judge Hoyt lost virtually all of the black vote.
It is against this backdrop of straight-ticket voting that the limited success of black-preferred candidates described by Engstrom must be assessed. Engstrom limited his study to elections involving black candidates. Since the black-preferred candidate often is not black, this precluded Engstrom from determining whether whites in Harris County consistently voted as a bloc to defeat black-preferred candidates, as he admitted at trial. Engstrom also excluded judicial elections with Hispanic candidates and races for seats on the county court, which are also conducted on a county-wide basis.
The black-preferred candidate won only two, or 11.8%, of the 17 district court elections analyzed by Engstrom. Ten of these losses by black Democrats, however, occurred in 1980, 1984, and 1988, when popular Republican presidential candidates helped Republican judicial candidates to defeat virtually all of their Democratic opponents. The victors included Judge Hoyt, a black candidate running as a Republican. As Engstrom conceded, white and black Democrats alike were "wiped out" during these years.
The fortunes of Harris County Democrats, and thus black voters, improved considerably in 1982 and 1986, when either Governor Mark White or Senator Lloyd Bentsen headed the Democratic ticket. As in the Republican years of 1980, 1984, and 1988, success at the top of the ballot carried down to judicial races marked more by anonymity than name identity. Thus, black-preferred candidates won more than a third of the indigenous judicial races in which black candidates participated—5 out of 14, or 35.7%. Considering elections with Hispanic candidates, black-preferred candidates won 13 out of 24 indigenous judicial elections, or 52.4%. Narrowing the focus to district court races, black voters elected the candidate of their choice 8 out of 14 times. In these years, the black-preferred candidate for district judge won in 57.1% of the elections studied. Even when the results of the lean years of 1980, 1984, and 1988 are included, we find that the black-preferred candidate prevailed in 14 out of 40 (35%) of all indigenous judicial elections with minority candidates. The record also indicates that black-preferred candidates won three out of five exogenous races for appellate and Supreme Court seats during these years.
Plaintiffs insist, however, that partisan affiliation cannot explain all of the results in this case, for in years not dominated by the Republican Party, black Democrats enjoyed less success than other Democrats. In the 1982 district court contests, white and Hispanic Democrats won 12 of 14 races, while black Democrats won only one of three. In 1986, black Democrats won two of eight indigenous judicial races; the success rate of white Democrats is not found in the record. Engstrom stated, without discussing the supporting data, that between 1980 and 1988, white Democratic candidates enjoyed a better success rate than their black counterparts.
This evidence may reflect a preference among white Democrats for white and Hispanic rather than black candidates. Plaintiffs'
The proof of vote dilution is marginal. The undisputed facts show that a majority of white voters invariably supported black Republican candidates, suggesting that the defeat of minority-preferred candidates was largely, although not entirely, attributable to partisan affiliation. Moreover, black voters were consistently able to elect representatives of their choice, even when they were opposed by a majority of white voters. The record indicates that black-preferred candidates prevailed in 14 out of 40 non-exogenous elections in which either black or Hispanic candidates participated — 35% of the time. Limiting the inquiry to district court races, black-preferred candidates still won in 9 of 28 races, or 32.1%.
Black voters could, therefore, repeatedly elect candidates of their choice, even when opposed by a majority of white voters. Far from being submerged in a white majority, black voters were a potent electoral force that could form coalitions with minorities of white voters to elect their preferred candidates. This ability to form coalitions and influence the elections of all judges in Harris County would be lost in the system of single-member districts proposed by the plaintiffs. Instead, black voters might control the election of perhaps ten judges, abdicate any right to vote for the remaining forty-nine, and thus radically reduce the chances of having disputes affecting them decided by a judge they had any hand in electing. A similar observation can be made in the other counties but is strikingly apt in this large urban environment.
The remaining evidence adds little to plaintiffs' claims of illegal vote dilution. Plaintiffs offered little evidence that past discrimination and socioeconomic disparities between blacks and whites hindered the ability of black residents of Harris County to participate in the political process. In particular, there was no suggestion at trial of a lower-than-average voter registration or turnout rate among black citizens. In addition, the evidence indicated that disproportionate levels of poverty within the black community had no effect on the ability of black judicial candidates to raise the funds necessary to compete on a county-wide basis. At trial, Bonnie Fitch testified, without elaboration, that a few black incumbents experienced some difficulty in obtaining financing for their campaigns, but she attributed these problems to "racial discrimination" and the candidates' "past record of losing." Even if this isolated, equivocal testimony could somehow be construed to suggest that a lack of resources among black residents hindered black candidates' campaigns, it was sharply contradicted by the accounts related by Jackson and Berry, two black judicial candidates. They testified that they were each able to raise sufficient funds and that they in fact outspent their white Republican opponents by ratios exceeding ten-to-one. In light of this evidence, the district court's finding that the effects of past discrimination hampered the black community's access to the political process was clearly erroneous.
Likewise, the representation of blacks on the Harris County bench cannot support an inference of racial politics. Three blacks are district judges — 5.1% of the total. By contrast, black attorneys make up at most only 3.8% of the eligible lawyers in Harris County. The fact that blacks constitute a smaller percentage of the district judges than of the county population is therefore not surprising. If judges were chosen at random from the pool of eligible candidates, there would be fewer black district judges on the Harris County bench.
Aside from the number of black judges and the general history of discrimination, the district court found three Zimmer enhancing factors. See Nevett v. Sides, 571 F.2d 209, 218 (5th Cir.1978). Such factors enhance the opportunity of a white majority to engage in racial politics. They do not, however, "meaningfully advance the inquiry into whether race is at issue," Terrazas v. Clements, 581 F.Supp. 1319, 1346 n. 26 (N.D.Tex.1983)
The circumstantial evidence of a relation between black voters' electoral losses and race is, at best, tenuous, given the willingness of white voters to support black Republican candidates and the consistent success enjoyed by black-preferred judicial candidates. Even if the considerable success among black-preferred Hispanic candidates is discounted, the evidence presented at trial hardly amounts to the level of dilution that might outweigh Texas' substantial interest in linking a trial judge's jurisdiction with her electoral base. Given the undisputed evidence that nearly all of the losses suffered by black candidates occurred in years when virtually the entire party slate went down in defeat and plaintiffs' negligible showing under the Zimmer factors, the claim before us reduces itself to a contention that Texas' 143-year-old electoral scheme must be dismantled in Harris County because a few black candidates — most of them recently-appointed incumbents — failed to attract decisive support from white voters within the Democratic Party. We express no opinion as to whether this minimal proof of dilution might establish a violation of § 2 absent the substantial state interest. Even assuming that it would, we conclude as a matter of law that plaintiffs' proof at best produces only a marginal case in Harris County, too insubstantial to survive the weighing of the totality of the circumstances particularly so if any appreciable weight is given the linkage interest.
C. Tarrant County
There are 23 district courts in Tarrant County. From 1985 to 1988, three of these judges (13.0%) were black. As of 1989, two district judges are black (8.7%). The defendants' undisputed evidence indicates that only 2.4% of the eligible Tarrant County lawyers are black. There are 613,698 residents of voting age in Tarrant County. Of this number, 63,851 (10.4%) are black. Plaintiffs proceed on behalf of black voters in Tarrant County.
The evidence indicates that blacks voted cohesively for the Democratic candidate. Dr. Brischetto, plaintiffs' expert for this county, analyzed four elections: three general elections for district judgeships and the 1988 Democratic presidential primary. In all four elections, the regression estimates show that from 85% to 100% of black voters in Tarrant County supported the black-preferred, Democratic candidate. Taebel's analysis similarly shows cohesion.
Taebel analyzed nine general elections, including three exogenous elections, in which a black or Hispanic had participated. These included five district court races, one county court race, two Supreme Court races, and a contest for Texas Attorney General. Brischetto analyzed only four elections, in which black candidates had participated. As in all other counties, the evidence shows consistent black support for Democratic candidates. The following tables summarize the analyzed races involving black or Hispanic candidates. For each black-preferred candidate, the estimated percentage of the white vote is listed. These are based upon Taebel's estimates, except those in parentheses, which reflect Brischetto's regression and homogenous precinct analyses. A "check" mark indicates a victory by the black-preferred candidate.
Table VI.C Indigenous judicial elections (Tarrant County)
Year Court Candidates Race Party White Vote1982 233d District Valderas H D 36% ✓ Hines W R " County Crim Ct 4 Perez H D 48% ✓ Lynch W R 1986 233d District Weaver W R Valderas H D 40% " Crim Dist Ct 1 Sturns B R Goldsmith W D 43% (51-56%)
" Crim Dist Ct 4 Drago W D 45% (54-59%) ✓ Salvant B R 1988 Crim Dist Ct 2 Dauphinot W R Davis B D 40% (42-50%) Exogenous elections (Tarrant County) Year Court/Office Candidates Race Party White Vote1986 Attorney General Barrera H R Mattox W D 39% " Supreme Court Pl 4 Bates W R Gonzalez H D 38% " Supreme Court Pl 3 Gonzalez H D 46% ✓ Howell W R 1988 Dem Pres Primary Jackson B (14-16%) Dukakis W Gore W Gephardt W Hart W Simon W
Unlike other counties, black judges occupied more than 13% of the district judgeships in Tarrant County for four out of five years — a proportion of the bench that is greater than the proportion of black voters in the county's population.
The success of black-preferred candidates was also greater in Tarrant County than elsewhere. In those general elections with black candidates, the black-preferred, Democratic candidate won only one out of three general elections — 33.3% of the studied races. However, in nine general elections with either black or Hispanic candidates included in Taebel's study, the black-preferred candidate won four out of nine, or 44.4% of the elections. In the six indigenous district and county court elections studied, the black-preferred candidate won three out of six, or 50% of the elections. These figures do not indicate the consistent defeat of black-preferred candidates.
The district court, by contrast, found that the black-preferred candidate was consistently defeated in Tarrant County. The district court reached this conclusion by ignoring elections in which Hispanics had participated. This rejection of white-Hispanic elections was erroneous. The undisputed facts, as reflected by Taebel's exhibits, are that a majority of Hispanic voters always supported the same candidate favored by black voters in every general election. The district court found that Hispanic and black voters were cohesive in Midland, Lubbock, and Ector Counties on similar evidence. With virtually identical proof in Tarrant County, the same conclusion must follow, and we hold that it does.
Brischetto included the 1988 Democratic presidential primary in which Jesse Jackson won virtually all of the black vote in Tarrant County, but only between 14% and 16% of the white vote.
Furthermore, the undisputed evidence shows that black candidates won as great a share of white votes as white candidates, if we control for party affiliation. For instance, Sturns, a black Republican with a long history of involvement in civil rights and black community organizations, won 57% of the white vote to beat a white Democrat. Salvant, another black Republican, also won a majority (55%) of the white vote, although he lost his race for a district judgeship to a white Democrat supported by a combination of black voters, Hispanic voters, and white Democrats. Black Republicans also won the same share (50%) of elections as white Republicans among the races with black or Hispanic candidates.
Finally, blacks have not been underrepresented on the Tarrant County bench. Plaintiffs' exhibit indicates that, for four out of the five years studied, three of Tarrant County's district judges were black; for these four years, while blacks made up only 10.4% of the county's voting age population, more than 13% of the relevant office holders were black. Given this persistent and substantial black presence on the Tarrant County bench, the consistent and substantial success of minority-preferred candidates, and the absence of any evidence of racial politics in Tarrant County, we conclude that, even if the plaintiffs had proven the Gingles prerequisites, the district court clearly erred in finding illegal vote dilution under the totality of circumstances. This is so even if we ignore the fact that blacks and Hispanics voted cohesively in Tarrant County and exclude the races with Hispanic candidates from our analysis. Looking at just the district court general elections involving black candidates, the black-preferred candidate won 33.3% of the time. In light of the evidence just discussed, which excluding Hispanic elections does not change, reducing the relevant success rate from 44.4% to 33.3% is insignificant in the totality of the circumstances. There is no case as a matter of law in Tarrant County.
D. Travis County
There are 13 district judges elected in Travis County. From 1985 to 1988, one of them was Hispanic, or 7.7% of the total. This judge was defeated in 1988. Hispanic lawyers make up 2.7% of the eligible lawyers in the county. There are 312,392 voting age residents in Travis County, which encompasses Austin, Texas. Of them, 44,847 (14.4%) have Spanish surnames. Only 29,067 (9.3%) are black. The district court found that a "minimally contiguous," predominantly-Hispanic judicial district could be created. Plaintiffs proceed on behalf of Hispanic voters in Travis County.
Plaintiffs' witnesses stated that the Republican Party is insignificant in Travis County and the proper testing ground for candidates is the Democratic primary. Plaintiffs analyzed three Democratic primary elections: one for district court and two for county court positions. Defendants analyzed eleven elections: four exogenous general elections, including one state senate, one Attorney General, and two Supreme Court races; four exogenous primary elections, including one state senate, one Supreme Court, and two appellate court primaries; and finally the same three indigenous judicial elections studied by plaintiffs.
By Taebel's analysis, the Hispanic-preferred candidate won all four of the exogenous general elections. In three of the four, the Hispanic-preferred candidate also won a majority of the Anglo vote. In addition, the Hispanic-preferred candidate won two exogenous primaries, for Supreme Court and state senate. Thus, the Hispanic-preferred candidate prevailed in two of the four (50%) exogenous primaries and two of the seven (28.6%) primaries studied overall. Altogether, the Hispanic-preferred candidate won
The district court found, however, that the three indigenous primary elections for judicial positions were "closer in nature to District Court elections" and sufficed to show a pattern of racial bloc voting sufficient to defeat the Hispanic-preferred candidate. The district court therefore relied solely on the three elections analyzed by both Taebel and Brischetto to find that the Hispanic-preferred candidate lost 100% of the time.
In the one district court and two county court primary elections analyzed by the parties, the Hispanic, and Hispanic-preferred, candidate was defeated by a white majority. In one of these races, however, white voters gave their support to a black candidate, and thereby defeated both the Hispanic Castro and Hughes, a white candidate. Kennedy, the black candidate, had the overwhelming support of black as well as white voters, so it is difficult to conclude that Castro was defeated by a white bloc. Castro and Hughes were defeated by a black-white coalition. Thus, Castro's defeat is not evidence of the white majority's ability "usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 51, 106 S.Ct. at 2766-67.
The two remaining indigenous primary elections offer a meager base for liability. The plaintiffs' case reduces to three facts: (1) Hispanic-preferred candidates Gallardo and Garcia gained only 33% to 37% of the Anglo vote in 1988 Democratic primaries, and failed to win nominations for district and county court elections; (2) only one Hispanic, Gallardo, served as district judge between 1985 and 1998, while no Hispanic now serves; and (3) Hispanics have suffered from past discrimination in Travis County. We conclude that the district court clearly erred to find illegal vote dilution on this record.
In finding clear error, we repeat Justice Brennan's admonition that "the usual predictability of the majority's success distinguishes structural dilution from the mere loss of an occasional election." Gingles, 478 U.S. at 51, 106 S.Ct. at 2767. It defies common sense to believe that the loss of two primary races in one year constitutes usual and predictable defeat by a white bloc, rather than simply "loss of an occasional election." However, assuming arguendo that these two elections constitute sufficient proof of the third Gingles prerequisite, they are too meager to prove dilution under the totality of circumstances, as a matter of law.
The plaintiffs contend that Hispanics are underrepresented among district judges in Travis County. Hispanics made up 7.7% of those judges in four out of five recent years, while making up no more than 2.7% of the lawyers eligible under Texas law to fill those posts. Given such a small pool of qualified candidates, it is not surprising that Hispanics have made up a small proportion of the Travis County bench. This result need not be attributed to the interaction of racial bias with the at-large electoral scheme. It is equally likely that the numbers reflect the limited candidate pool. Plaintiffs can point to only one district court election that an Hispanic candidate lost — Gallardo's race in 1988. Even if Gallardo had prevailed, the percentage of Hispanic judges would not have increased, because Gallardo was the one Hispanic sitting before 1988. While we do not require that any minority candidates run for the office in question, the court cannot ignore this reality while plaintiffs emphasize the absence of minority office holders.
Far from signalling the submergence of minority voting strength by an interaction of electoral process and bias, the undisputed facts indicate that Travis County's political system is open to Hispanic and white candidates alike. Hispanics won half of the four exogenous primary elections studied, including races for the state senate, appellate courts, and Supreme Court. The Hispanic-preferred candidate also won all four of the general elections analyzed by the defendants. The City of Austin contains most of Travis County's population. As this court noted in Overton v. City of Austin, 871 F.2d 529, 540 (5th Cir.1989):
Likewise, the defendants here produced evidence that Hispanic county commissioners had been elected from predominantly Anglo districts, and that Trevino, a Hispanic Austin city council member, had been elected in city-wide elections. Against this back-ground, which includes the success of state Senator Barrientos and Justice Gonzalez and other Hispanic-preferred candidates, plaintiffs' minimal case is plainly insufficient to prove illegal vote dilution. The district court clearly erred in finding otherwise.
E. Bexar County
The voting age population of Bexar County is 672,220. Of these, 46,767 (7.0%) are black, and 278,577 (41.4%) are Hispanic. Nineteen district judges are elected from Bexar County. Of this number, five (26.3%) are Hispanic. Undisputed evidence shows that 11.4% of the eligible lawyers in Bexar County are Hispanic. Plaintiffs proceed on behalf of Hispanic voters in Bexar County.
Plaintiffs and defendants analyzed the six district court general elections with Hispanic candidates between 1982 and 1988. Defendants also studied a 1980 general election with an Hispanic candidate, as well as two appellate court and three county court general elections with either Hispanic or black candidates. As in every other county, Hispanics voted cohesively for the Democratic candidate while a majority of Anglos supported the Republican candidate.
In the twelve judicial elections studied, the Hispanic-preferred Democratic candidate won four times, 33.3%. The Republican candidate usually won the general election, and always won the Anglo vote, regardless of the candidate. The four Democratic victories were: (1) the 1980 appellate court race between Murry and Esquivel; (2) the 1980 district court race between Prado and Priest; (3) the 1988 district court race between Bowles and Mireles; and (4) the 1988 county court race between Patterson and Canales. Priest, an Anglo Democrat, beat Prado, an Hispanic Republican, while Esquivel, Mireles, and Canales, all Hispanic Democrats, defeated their Anglo Republican opponents.
Partisan affiliation does not explain, however, the voting patterns in Democratic primary elections. By defendants' own evidence of Democratic primaries in Bexar County, the Hispanic-preferred candidate lost in nine of fourteen elections, prevailing only 35.7% of the time, when Anglo Democrats voted for the Hispanic candidate's Anglo opponent. Anglo support for the Hispanic candidate was seldom above 30% and as low as 1% — whereas the Hispanic vote for the Hispanic-preferred, and always Hispanic, candidate was above 70% for five of the nine unsuccessful candidates. Plaintiffs' as well as defendants' experts agreed, however, that primary elections do not provide a reliable guide where, as here, both parties are competitive, since they involve only a fraction of the electorate.
Partisan affiliation accounts for much of the voting patterns analyzed by the parties. Most Anglo voters are Republicans; most Hispanic voters are Democrats. Anglo voters gave a majority of their votes to Republicans, and Hispanic voters gave a majority of their votes to Democrats, even when Hispanic Republican candidates faced Anglo Democratic opponents. Prado and Barrera, Hispanic Republicans, won 70% and 86% of the Anglo vote respectively, when running against Anglo Democratic opponents who received the overwhelming majority of the Hispanic vote. Any proof of dilution is meager at best and cannot overcome Texas' substantial linkage interest as a matter of law.
Because Hispanic voters make up more than 41% of the population, they can elect Democratic candidate with minimal Anglo support and have done so repeatedly. The minority-preferred candidate won four out of twelve elections in which an Hispanic candidate participated — 33.3% of the time — with as little as 17% of the Anglo vote. Hispanic voters are plainly a potent political force that can elect candidates by forming coalitions with small percentages of Anglo voters. If Bexar County were subdistricted, Hispanic voters might elect a few more of their preferred candidates, but only at the expense of losing their influence over the majority of
Finally, the evidence that elections were affected by racial politics preventing the formation of such coalitions is thin. It consisted solely of (1) evidence of low Hispanic voter registration; (2) the usual enhancing factors present in every Texas county — anti-single shot voting and the majority runoff requirement; and (3) the fact that Hispanic judges occupy five of nineteen district judgeships — 26.3% of the total — while Hispanics make up 41.4% of Bexar County's voting age population. Again, we note that Hispanic attorneys make up only 11.4% of the eligible bar, so that the representation of lawyers on the bench is actually higher than would be produced by random selection from the pool of eligible candidates. This evidence, even if probative in the abstract, is as meager as the evidence in Harris County.
The evidence compels the conclusion that any dilution was marginal and cannot as a matter of law survive the weighing of the totality of the circumstances when Texas' substantial state interest is added to the mix. If Texas' linkage interest does not outweigh this evidence of dilution, the state's interest would be a nullity. We hold that plaintiffs' proof fails in Bexar County as a matter of law.
F. Jefferson County
Eight district judges are elected from Jefferson County. The record shows that no black judge was elected there between 1985 and 1989.
Taebel testified that Jefferson County is the most Democratic of the targeted counties, with 90% of its voters participating in the Democratic primary. Brischetto analyzed eight primary and runoff elections, including the 1988 Democratic presidential primary. Taebel analyzed six exogenous elections involving either black or Hispanic candidates: four primaries and two general elections. Unlike their other studies, Brischetto and Taebel analyzed totally different elections.
In all but one of the primary elections studied by Brischetto, the black vote was cohesive. In one case, the candidate with the greatest black support received a high plurality (47%) of the black vote. A majority of white voters always opposed the black-preferred candidate in the primary elections.
Whether the black-preferred candidate was consistently defeated by a white bloc is a close question. The answer varies with the elections counted and how they are counted. Defendants point to four primaries. In two elections, black candidate Price won the nomination for state representative. In two others, for Supreme Court and Court of Criminal Appeals, black-preferred Hispanic candidates Gonzalez and Martinez participated. Gonzalez won the Jefferson County Democratic vote; Martinez did not. Defendants also rely on two exogenous general elections, for Supreme Court and Attorney General, involving Hispanic candidates Gonzalez, a Democrat, and Barrera, a Republican. In both general elections, the black-preferred candidate — Gonzalez and Mattox, Barrera's Democratic opponent — prevailed.
Plaintiffs offer five indigenous primaries, ranging back to 1972, in which black candidates participated — four for justice of the peace and one for county court. They also submitted the exogenous 1988 presidential primary. Among these six races, the black-preferred candidate prevailed only once, when Jackson won a plurality in the 1988 presidential primary.
The total of eight elections analyzed by Brischetto includes both the initial primaries and subsequent runoffs for justice of the peace in 1972 and 1974. In the initial primaries,
Unlike Tarrant County, defendants' evidence does not include estimates of how Hispanic residents in Jefferson County voted. There are no facts showing that Hispanic and black voters were politically cohesive in Jefferson County. Anglo-Hispanic elections are entitled to less weight than white-black races in determining the success of black-preferred candidates.
Nonetheless, confining our consideration to the analyzed elections in which black candidates participated, we must conclude that the plaintiffs failed to prove a substantial case of dilution. The plaintiffs and defendants together produced evidence of eight primary elections in which a black who was also the black-preferred candidate participated. The black-preferred candidate won three primaries out of these eight elections — a success rate of 37.5%. All three of the black-preferred candidates' victories were exogenous: Jackson won the 1988 presidential primary, while Price won two Democratic primaries for state representative.
As in every county but Dallas, the district court found no sign of racial appeals. Likewise, there is no finding of nonresponsiveness on the part of elected officials to the concerns of black constituents. Enhancing factors as well as past discrimination were shown, but — as elsewhere — were not brought home to this case. The minority-preferred candidate prevailed in every general election submitted by the parties.
The plaintiffs' case was further weakened by their use of dated statistics: three of the five indigenous elections they submitted were held in 1972, 1974, and 1978. There is no evidence of a practical and searching appraisal of contemporary conditions in Jefferson County. See Nipper v. Chiles, 795 F.Supp. 1525, 1540 (M.D.Fla.1992) (noting limited probative force of "stale" elections).
We have here no more than marginal proof of illegal vote dilution. The evidence is inadequate to prove that black voters were denied an equal opportunity to participate in the political process. It is too insubstantial to survive a weighing of the totality of circumstances when the state's substantial linkage interest is added to the mix. As a matter of law, the state's interest outweighs the plaintiffs' case.
G. Midland County
Midland County contains 82,636 voting age residents, of whom 6,893 (11.9%) have Spanish surnames and 4,484 (7.8%) are black. There are three district judges in Midland County; none are Hispanic or black. Undisputed evidence shows that seven Hispanic and three black attorneys are eligible for district judgeships. They comprise 3.2% of the lawyers eligible to run for that office. Plaintiffs proceed on behalf of both Hispanic and black voters in Midland County.
Plaintiffs analyzed three general elections in Midland County. Two of them were exogenous races for the Texas Supreme Court. The third was an indigenous race involving a black candidate for a Justice of the Peace position in 1986. Defendants likewise examined Gonzalez's bids for the Supreme Court in 1986 and 1988, as well as four primary elections in which either a black or Hispanic candidate participated. Defendants also analyzed the Mattox-Barrera race for Texas Attorney General.
Both parties' analyses show that the majority of Anglo voters always opposed the candidate preferred by the geographically compact and cohesive combined minority population in the general elections. The minority-preferred candidate was always defeated by this Anglo majority.
We conclude that the district court clearly erred in finding dilution. The undisputed facts indicate that partisan affiliation, not race, caused the defeat of the minority-preferred candidate. The majority of minority voters always cast their votes in favor of the Democratic candidate. The Anglo voters
Even if plaintiffs could meet the Gingles threshold, the totality of circumstances does not add up to dilution. The plaintiffs can show only a general history of discrimination and a lack of minority judges. These facts prove little. In Midland County, only one minority lawyer has run for local office (county attorney), and none has ever run for a district judgeship. These low numbers reflect the minuscule number of eligible minority candidates. According to the evidence, only ten minority lawyers are eligible to run for the district court seat.
Because the undisputed facts show that partisan affiliation uninfected by racial politics caused the minority-preferred candidates' defeat, we hold that the district court erred in finding dilution.
H. Lubbock County
Lubbock County residents vote for five district court positions. None of these five judges are black or Hispanic. The surveys introduced by the defendants indicate that 23 Hispanic lawyers in Lubbock County are eligible to run for the district court. The surveys show that no black residing in the county is eligible to do so. The total voting age population is 150,714. Of this number, 22,934 (15.2%) have Spanish surnames and 9,509 (6.4%) are black. Plaintiffs proceed on behalf of the combined Hispanic and black voters in Lubbock County.
None of the parties analyzed indigenous elections in Lubbock County; no minority has ever run for a position on the district court. Plaintiffs analyzed two exogenous primaries and two exogenous general elections, for the Supreme Court and for the Court of Criminal Appeals. Defendants studied the same two general elections, adding an exogenous general election for Attorney General.
Plaintiffs' and defendants' evidence shows that blacks and Hispanics tend to vote cohesively. There is also no dispute that the majority of Anglo voters did not support the candidate favored by the minority voters in Lubbock County in any of the elections studied.
As in Dallas and Midland Counties, however, the undisputed facts show that, in general elections, partisan affiliation and not racial politics caused the consistent defeat of the minority-preferred, always Democratic, candidates. The data indicate that, in these counties, over 60% of white voters supported the Republican candidate, while most minority voters supported the Democratic candidate. As a result of this voting pattern, the Democratic and minority-preferred candidate consistently lost to a Republican opponent, regardless of the ethnicity of the candidates.
In the 1986 and 1988 races for the Supreme Court, Hispanic Democrat Gonzalez lost Lubbock County's vote to white Republican opponents. However, in the contest for Attorney General, Barrera, an Hispanic Republican, defeated Mattox, a white Democrat. Like Gonzalez's Republican opponents, Barrera took a majority of the Anglo votes, while his white opponent took a majority of the minority votes. In short, as in Midland County, the evidence establishes that voting patterns in Lubbock County were unaffected by the race of the candidates. Rather, they resulted from party loyalty. Therefore, plaintiffs have not met the third Gingles factor.
The plaintiffs point to two exogenous Democratic primary elections for state appellate and Supreme Court positions.
I. Ector County
There are four district judges in Ector County. All of them are Anglo. There are fewer than 200 lawyers in the county. Surveys estimate that no more than six of them are black or Hispanic and eligible to become district judges. Ector County, whose principal city is Odessa, has 79,516 voting age residents. 14,147 (17.8%) are Hispanic, while 3,255 (4.1%) are black. Plaintiffs proceed on behalf of the combined minority population in Ector County.
The parties relied on the same exogenous races in Ector County that they produced in Lubbock County. The plaintiffs examined primary and general elections for appellate courts involving Martinez and Gonzalez. The defendants added Barrera's bid for Attorney General.
The undisputed facts indicate that the minority-preferred, Democratic candidates were consistently defeated in general elections by an Anglo majority voting for their Republican opponents. In the Democratic primaries, Martinez won a majority of the vote. The minority-preferred candidate won half of the Democratic primary races and therefore was not consistently defeated in the primaries.
As in Lubbock County on virtually identical facts, we find that the district court clearly erred in finding racial vote dilution. The undisputed facts indicate that partisan affiliation controlled the outcomes of the general elections. As in Lubbock County, while Hispanic Democratic candidates lost the Anglo vote, Barrera, a Hispanic Republican, won a majority of the Anglo vote running against his white Democratic opponent Mattox.
While partisan affiliation would not explain polarization in the primaries, the facts indicate that the minority-preferred candidate was not consistently defeated by racial polarization in the primary elections. Rather, Martinez won one of the two races analyzed. Plaintiffs have failed to meet the third prerequisite of Gingles.
We would expect over time that the Texas judiciary would reflect the black and Hispanic population eligible to serve — if judges, for example, were drawn from a pool of all persons eligible to serve. In truth, minority lawyers fare better than we would expect from a random process. We do not suggest that because they fare better than they would in a system of random selection, voting rights of blacks and Hispanics could not have been illegally diluted. Rather, the observation is relevant because it brings perspective to this battle by drawing borders around its asserted implications and deflating overdrawn invocations of large wrongs of history, unremedied and unanswered.
There is no disparity between the number of minority judges and the number of minorities eligible to serve. Rather, the only disparity is between the minority population and minorities eligible to serve as judges. Much can be said about that — of deficits in education and other social shortchangings of black and Hispanic persons. To those who push judicial entry onto this larger field we must answer that our task is more narrowly drawn — to decide if voting rights have been denied. We lack the authority, even if we had the wisdom, to do more. The Voting Rights Act is not an unbridled license — to explore for example the persistent low enrollment of black law students. One small example. This year the law school at Louisiana State University graduated the largest number of black students in its history. This followed intensive recruiting efforts including the inducement of a free education — with stipends. Of the several hundred students graduated, ten were black. This sad story can be repeated at school after school. We are told that this is not relevant. We think that it is.
We decline to reach for social questions beyond the Voting Rights Act by recasting
EDITH H. JONES, Circuit Judge, with whom JOLLY, SMITH, BARKSDALE and DeMOSS, Circuit Judges, join in concurring in majority opinion:
Judge Higginbotham's excellent opinion resolves all but one of the issues in dispute between the parties, and I am pleased to concur in it as far as it goes. The single issue that I believe should have been discussed is whether different racial or language minority groups may be permitted to aggregate their strength in order to pursue a Section 2 vote dilution claim. Permitting such a black/Hispanic coalition claim was vital to plaintiffs' success in three counties in this case. The issue was preserved for appeal, albeit as an aside to the all-pervasive issues;
Congress did not authorize the pursuit of Section 2 vote dilution claims by coalitions of distinct ethnic and language minorities. What Congress did not legislate, this court cannot engraft onto the statute. Except in two eccentric decisions from Texas, the coalition theory has found no factual support anywhere else in the federal courts. The crucial problem inherent in the minority coalition theory, articulated by Judge Higginbotham and realized in this case, is that it transforms the Voting Rights Act from a statute that levels the playing field for all races to one that forcibly advances contrived interest-group coalitions of racial or ethnic minorities.
According to customary legal analysis, there should be no need to discuss the minority coalition theory of vote dilution because the text of the Voting Rights Act does not support it. The Act originally protected only black voters. When it was amended in 1975 to reach language minorities, the Act then identified four new covered groups: persons of Spanish heritage; all American Indians; "Asian Americans" including Chinese, Japanese, Korean and Filipino Americans; and Alaskan natives. 42 U.S.C. § 1973(b)(f)(1). That each of these groups was separately identified indicates that Congress considered members of each group and the group itself to possess homogeneous characteristics. By negative inference, Congress did not envision that each defined group might overlap with any of the others or with blacks. See Hunter, The 1975 Voting Rights Act and Language Minorities, 25 Cath.U.L.Rev. 250, 254-57 (1986); Katherine I. Butler and Richard Murray, Minority Vote Dilution Suits and the Problem of Two Minority Groups: Can a "Rainbow Coalition" Claim the Protection of the Voting Rights Act?, 21 Pac.L.J. 619, 624-25 (1990) (hereafter, "Butler and Murray").
The 1982 amendment to Section 2, which codified the "results" test, likewise offers no textual support for a minority aggregation theory. It speaks only of a "class of citizens" and "a protected class." 42 U.S.C. § 1973(b). Had Congress chosen explicitly to protect minority coalitions it could have done so by defining the "results" test in terms of protected classes of citizens. It did not.
Two arguments have been made for extending the Voting Rights Act to minority coalitions. First, one appellate panel stated, without citation or further reasoning, that the Act does not prohibit such claims. Campos
849 F.2d at 945.
The second argument advanced by a court that permitted a minority coalition claim under Section 2 begs the question of statutory construction altogether. This position asserts that because a minority coalition may meet the three-prong Gingles test, including the criterion of the minority group's political cohesiveness, it may gain relief from vote dilution.
Midland, 812 F.2d at 1504. Reliance on Gingles is false because Gingles does not address the meaning of or solution to vote dilution of a minority coalition.
A principal reason for distinguishing homogeneous, explicitly defined minority groups from minority coalitions lies in Section 2 itself. One may be uncertain what Congress might think about permitting minority coalitions to assert vote dilution claims, but Congress clearly walked a fine line in amending Section 2 to codify the results test for vote dilution claims while expressly prohibiting proportional representation for minority groups. The results test of vote dilution inherently recognizes that a minority group will sometimes fail to merit a single member district solely because they lack the population to "constitute a majority in a single member district." Gingles, 478 U.S. at 50 and n. 17, 106 S.Ct. at 2766 and n. 17.
The tension in Section 2 between the results test and the prohibition of proportional representation fundamentally distinguishes this case from Chisom v. Roemer, ___ U.S. ___, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991), in which the Supreme Court concluded that judicial elections are covered by Section 2. Stating that certain types of elections are within Section 2 is a definitional exercise. In Chisom, the Court held that judicial elections, having once been covered by the Act, remained covered following the 1982 amendment to Section 2. But it is a remedial exercise to decide whether to apply the results test to a minority coalition united not by race or language but only by their desire to advance a particular agenda. Enlarging the permissible boundaries of Section 2 relief to encompass minority coalitions thus runs headlong into the Section 2 prohibition of proportional representation, creating a conflict that the Supreme Court did not face in Chisom.
If Section 2 is held to permit relief for minority coalitions, the complications for Voting Rights Act litigation in our increasingly multi-ethnic society will be enormous. Those complications alone imply that Congress rather than the courts should first address any such innovation. Certain questions should give pause even to the advocates of minority coalitions. As Judge Higginbotham observed, the availability of a minority coalition theory could be a defense against an attack on an at-large system. Campos v. City of Baytown, Texas, supra 849 F.2d at 945-46 (Higginbotham, J.). Where the combined groups comprise more than half of a voting population in a plausible single-member district, their "cohesion" could be used as a device to "pack" the minorities together. Further, on what basis would a court apportion districts in the wake of a successful minority coalition Section 2 suit? If each minority is given an opportunity to prevail in a district, is this not an admission that the coalition is ephemeral and not really "cohesive" as Gingles requires? Is it possible that greater racial animosity will develop if a court permits minority aggregation on too insubstantial a basis and effectively submerges members of one group in a district controlled by the other group? Courts should be loath to embark upon coalition redistricting with no expressed guidance from a statute that reflects the will of the American people.
If, notwithstanding the absence of Congressional authorization, minority coalitions are permitted to assert aggregate Section 2 vote dilution claims, relief must be predicated on more evidence of the group's homogeneity than the maintenance of a joint lawsuit. See note 5, supra. This is so for two reasons. As noted earlier, if a fortuitous coalition of minorities can gain Section 2 relief on tenuous proof of cohesion, the courts will have effectively undone Congress's explicit disapproval of proportional representation. The less cohesive the groups truly are, the more likely relief has been fashioned only because of the groups' joint minority status. Second, there is risk to members of the minority groups themselves if their electoral fates are joined even though they do not share fundamentally similar social and political goals. To be sure, the problem of determining minority political cohesiveness under Gingles may be difficult even when the claims of one minority group are at issue.
The difficulty of proving vote dilution on behalf of coalitions of minorities has been vividly realized in practice. Except in the Midland and Campos cases, there appear to be no reported decisions in which sufficient proof of the minority coalition theory was adduced to justify Section 2 relief. The theory has been litigated all over the country, but it has repeatedly been rejected on factual grounds. See Concerned Citizens of Hardee County v. Hardee County Bd. of Commissioners, 906 F.2d 524 (11th Cir.1990); Latino Political Action Committee v. City of Boston, 609 F.Supp. 739, 744 (D.C.Mass.1985) aff'd, 784 F.2d 409 (1st Cir.1986); Butts v. City of New York, 614 F.Supp. 1527, 1546 (D.C.N.Y. 1985), reversed on other grounds, 779 F.2d 141 (2d Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3335, 92 L.Ed.2d 740; Badillo v. City of Stockton, 956 F.2d 884, 886 (9th Cir.1992); Romero v. City of Pomona, 665 F.Supp. 853, 859 (D.C.Cal.1987), aff'd, 883 F.2d 1418 (9th Cir.1989). See also Nixon v. Kent County, Michigan, 790 F.Supp. 738 (W.D.Mich.1992) in which Judge Enslen, author of a well-known constitutional law treatise, thoughtfully concluded that the only proper test for minority aggregation is whether two minority groups "are indeed one." 790 F.Supp. at 743.
What this string of defeats suggests, if not the utter bankruptcy of Section 2 minority coalition claims, is at least their factual complexity. Once the courts plunge into the business of apportioning representation among racial or ethnic coalitions, a host of difficult and potentially divisive social questions rear their heads. A finding of political cohesiveness should require such coalitions to prove, at the very minimum, not only that they usually vote for the preferred candidates of their own ethnic group but also for those of the coalition group — otherwise, the groups cannot be politically cohesive. Not only do most of the above-cited decisions case doubt on such a proposition, but considerable sociological literature also demonstrates "social distance" between minority groups that seems inconsistent with widespread coalition minority political cohesion.
The second panel opinion in this Lulac case concedes that
Lulac III, 986 F.2d at 785, n. 43. Ironically, while citing the Butler and Murray article to which I have referred, the panel makes no use of its cautionary data or its conclusion:
Butler and Murray, supra, 688-89. Butler and Murray contend that because of these differences, minority coalitions "very seldom" ought to be able to prove vote dilution under Section 2. Butler and Murray, supra at 687. The short answer to plaintiffs' joint Section 2 claims in Lubbock, Ector and Midland Counties is that they did not meet their burden of proof that blacks and Hispanics are sufficiently like a single minority group to entitle the coalition to one judicial district in each county.
The Congressional compromise that resulted in the passage of Section 2 left the field of voting rights wide open to courts in many respects. Congress did not, however, contemplate or authorize relief for coalitions of racial and language minority groups. For the courts to provide such relief, in my view, judicially amends the Act and flies in the face of the express prohibition of proportional representation in Section 2. At the very least, only under very convincing proof of a minority coalition's sociological similarities and goals as well as its political cohesion can such a claim be made. In this case, plaintiffs have not carried their burden of proof concerning Lubbock, Midland or Ector Counties. Our court's previous decisions in Midland and Campos must be overruled. With these additional observations, I concur in the majority opinion.
POLITZ, Chief Judge, with whom, JOHNSON, KING and WIENER, Circuit Judges, join dissenting:
I respectfully dissent. The parties have moved for remand of this action to the district court for consideration of a proposed settlement. Remarkably, the majority denies that motion despite the fact that our jurisprudence long has favored settlement as the preferred mode of dispute resolution,
Stripped to essentials, the majority asserts that Attorney General Morales lacks authority to settle this matter on behalf of the State because of the opposition by Chief Justice Phillips and Judges Entz and Wood. I find this nothing short of incredible. This action challenges the scheme for election of district judges in Texas. The real party in interest herein is the State of Texas.
That Chief Justice Phillips has voiced an objection does not alter the certainty that the State of Texas, through its authorized spokesman, wishes to settle this matter. As chairman of the Judicial Districts Board, Chief Justice Phillips has a measure of authority over judicial apportionments. We cannot ignore, however, that the Board's authority in this area — and hence that of the Chief Justice — is entirely subject to the will of a majority of the legislature
I would remand this case to the district court for consideration of the proposed consent decree.
KING, Circuit Judge, with whom POLITZ, Chief Judge, and JOHNSON, Circuit Judge, join, dissenting:
The majority ably accomplishes what it set out to do in this case: reach the merits of this appeal so that it can overhaul the Voting Rights Act. Indeed, from its initial decision to deny the motion to remand filed by the Plaintiffs and the State of Texas, to its decision to reverse the district court's judgment in each of the nine target counties, the majority proceeds with a kind of determination not often seen in a judicial opinion. Like Chief Judge Politz, I believe that the parties should be given the opportunity to settle this case. I also believe that fidelity to the Voting Rights Act requires us to affirm the district court's judgment in eight of the nine target counties. Accordingly, I respectfully dissent.
The majority's decision to deny the motion to remand, even standing alone, is indefensible. It demonstrates a lack of judicial restraint and sets a bad precedent. Under the majority's reasoning, states and political subdivisions embroiled in section 2 lawsuits must now defend their electoral practices to the bitter end — unless those practices can be changed in accordance with state law and everyone who is even remotely connected with the lawsuit agrees to the proposed changes. Because these circumstances are unlikely to occur, the majority has effectively ensured that section 2 cases will rarely, if ever, be settled.
In light of the majority's seriously flawed decision on the merits of this case, however, its decision to deny the motion to remand becomes even more indefensible. In my view, the majority's discussion of the merits—complete with a declaration that blacks and Hispanics are just two more interest groups and a conclusion that blacks and Hispanics are overrepresented on the Texas district court bench — perhaps provides the best argument against its decision to deny the parties' motion to remand this case for a settlement hearing. In fact, it is only after reading the majority's decision on the merits that one can truly understand why it denied the motion to remand. For that reason, I begin with the merits.
I. THE MERITS
In reversing the district court's judgment, the majority ultimately concludes that the evidence of vote dilution in this case is "marginal"—too marginal to outweigh the State of
A. The Plaintiffs' Evidence of Vote Dilution: Overhauling a Congressional Statute
As explained in my earlier opinion, the evidence of vote dilution in this case is substantial. See League of United Latin American Citizens, Council No. 4434 v. Clements, 986 F.2d 728, 776-803 (5th Cir.1993) (LULAC III).
After today, such evidence will be only "weak" evidence of vote dilution. This is because the majority has changed the analytical framework for analyzing vote dilution claims. Along the way, the majority has distorted Congressional intent, rejected Supreme Court precedent, and completely altered the focus of the section 2 inquiry. As a result of the majority's handiwork, the section 2 inquiry is no longer a blended one which looks to the "past and present reality" of the local political landscape. See S. REP. No. 417, 97th Cong., 2d Sess., at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 208 [hereinafter S. REP.]. Rather, it is one that looks only at the present, although paradoxically, not at reality.
1. Altering the Racial Bloc Voting Inquiries
The most glaring example of the majority's efforts to reshape the section 2 inquiry is its redefinition of two closely-related terms — namely, "legally significant white bloc voting" under the threshold inquiry of Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), and "racially polarized voting" under the totality of circumstances inquiry. Before today, these terms have been widely understood by lower courts, as well as by the Supreme Court, to have a descriptive meaning — a meaning that is completely in accord with section 2's focus on results. The majority, choosing to ignore this wide consensus, acts as if it is writing on a clean slate. That is, the majority acts as if Congress and the Supreme Court have not spoken on these issues. Because I refuse to put on such blinders, I cannot join the majority's decision to reformulate these terms.
a. The majority's version of racial bloc voting
The majority's formulation of "legally significant white bloc voting" under the Gingles threshold inquiry, as well as its view of racially polarized or racial bloc voting under the totality of circumstances inquiry, is confusing — to say the least. The majority spends some thirty pages at the front of its opinion explaining what these two closely related terms require; yet at the end of the section entitled "Racial Bloc Voting," all the reader knows is that more is required than showing (a) with regard to legally significant
Make no mistake about the majority opinion in this regard: it does redefine the terms of legally significant white bloc voting and racially polarized voting. To understand exactly what the majority "holds" with respect to these two terms, however, one must first go back to earlier opinions by Judge Higginbotham and then read the majority's county-by-county analysis in this opinion. It is only then that the majority's holding becomes comprehensible. Specifically, the majority holds that to establish legally significant white bloc voting and racially polarized voting, minority plaintiffs must, at the very least, negate partisan politics as an explanatory factor for the consistent defeat of their preferred candidates. The majority further implies — without deciding the issue — that minority plaintiffs may have to affirmatively prove racial animus in the electorate to meet their burden with respect to legally significant white bloc voting and racially polarized voting.
The starting point for understanding the majority's vague approach to the racial bloc voting inquiries is Judge Higginbotham's opinion in Jones v. City of Lubbock, 730 F.2d 233 (5th Cir.1984) (Higginbotham, J., specially concurring from denial of rehearing). This is where he first suggested that racial bloc voting requires a showing of racial animus in the electorate. He asserted:
Id. at 234. Judge Higginbotham further questioned whether racial bloc voting could be demonstrated without the use of a multi-variate regression analysis, which, he argued, would eliminate other possible causes of voting behavior — such as campaign expenditures, party identification, income, media use measured by cost, religion, name identification, or distance that a candidate lived from any particular precinct. See id. at 234-35.
The racial animus theme was also present, albeit to a lesser extent, in Judge Higginbotham's earlier dissenting opinion in this case, where he strongly disagreed with the panel majority's definition of legally significant white bloc voting and racially polarized voting. In particular, he stated that the "consistent defeat" of minority-preferred candidates could not be "on account of race or color," as required by section 2, unless it is tied to "racial bias in the electorate." LULAC III, 986 F.2d at 846 (Higginbotham, J., dissenting). This, he further stated, "is the heart of section 2." Id.; see also id. at 831 ("[T]he extent to which voting patterns are attributable to causes other than race is an integral part of the inquiry into racial bloc voting....").
It was also in this dissent, however, that Judge Higginbotham first advocated placing on plaintiffs the burden of "negating partisan politics" in order to show legally significant white bloc voting and racially polarized voting. That is, he appeared to retreat from his earlier, more rigid position of requiring minority plaintiffs to affirmatively establish racial animus in the electorate and instead described the plaintiffs' burden as one of negating partisan politics. See LULAC III, 986 F.2d at 834. At that point, he was willing to limit the "inquiry into racial bloc voting to determining whether divergent voting patterns are caused by partisan differences." Id.; see also id. at 845 ("Proof of majority voting based on party affiliation prevents the showing of bloc voting required by Gingles."). Thus, Judge Higginbotham's earlier position in this case was that, where the evidence "shows that divergent voting patterns among white and minority voters are best explained by partisan affiliation, ... plaintiffs have failed to establish racial bloc voting." Id. at 833-34. In short, he would have required minority plaintiffs to show that the consistent defeat of their preferred candidates was not "readily attributable to partisan affiliation." Id. at 834.
There are still vestiges of Judge Higginbotham's earlier positions in the majority
Ultimately, however, the majority purports not to resolve the debate between Judge Higginbotham's two earlier positions. Whether the plaintiffs' burden of proving bloc voting includes the burden of demonstrating racial animus in the electorate, or only the burden of negating partisan politics, we are told, "the result is the same." Id. at 860. The district court's judgment must be reversed, according to the majority, "[b]ecause the evidence in most instances unmistakably shows that divergent voting patterns among white and minority voters are best explained by partisan affiliation" — thus leaving the Plaintiffs unable to "establish racial bloc voting." See id. at 861.
That the majority has reformulated the concepts of legally significant white bloc voting and racially polarized voting becomes crystal clear in its application of the law to each county. In Dallas County, for example, the majority holds that the plaintiffs have not satisfied the third Gingles threshold requirement. It reasons:
Id. at 877. The majority makes similarly explicit holdings in Midland, Lubbock, and Ector counties. See id. at 891-92 (holding that, because partisan affiliation, not race, caused the defeat of the minority-preferred candidate in Midland County elections, "[t]he plaintiffs have not established the third prerequisite of Gingles."); id. at 893 (concluding that plaintiffs have not met the third Gingles factor because the evidence establishes that the voting patterns in Lubbock County resulted from party loyalty, not race); id. at 893 ("Plaintiffs have failed to meet the third prerequisite of Gingles" because the "undisputed facts indicate that partisan affiliation controlled the outcomes of the general elections."). Moreover, in Harris and Bexar counties, the majority strongly suggests that, because election outcomes appeared to result from partisan politics, the Plaintiffs could not establish legally significant white bloc voting.
b. Problems with the majority's version of racial bloc voting
There are grave problems with the majority's approach(es) to legally significant white bloc voting and racially polarized voting. From a purely legal perspective, the majority's reformulation of the terms simply cannot be supported. The majority's approach is also flawed from a social science perspective. More importantly, however, the reformulation of these terms essentially eviscerates section 2 of the Voting Rights Act — at least in the context of partisan elections.
(i) Legal problems
The majority asserts that its definitions of legally significant white bloc voting and racially polarized voting are required by the language and legislative history of section 2, as well as Supreme Court precedent. I disagree.
This being a question of statutory interpretation, I turn first to the language of section 2. That section provides, in pertinent part:
42 U.S.C. § 1973.
The language of this section does not, under a straightforward reading, require minority plaintiffs to "negate partisan politics" or demonstrate current racial animus in the electorate. The words "partisan politics" appear nowhere in the language of section 2. And although subsection (a) does require a link — a critical link — between the denial or abridgment of the right to vote and "race or color," there is no indication that Congress used the phrase "on account of race or color" to require proof of either the absence of partisan politics or the presence of racial animus in the electorate. In fact, Congress emphasized that it used the phrase "`on account of race or color' to mean `with respect to race or color,' and not to connote any required purpose of racial discrimination." S. REP. at 27-28 n. 109, 1982 U.S.C.C.A.N. at 205-06 n. 109.
Nor does the legislative history accompanying the 1982 amendments to section 2 offer
Id. at 33, U.S.C.C.A.N. at 211. This passage, from which the majority lifts its definition of racial bloc voting, simply does not define the term. If anything, the reference to the statement "that in many cases racial bloc voting is not so monolithic, and that minority voters do receive substantial support from white voters" reinforces my view that the racial bloc voting inquiry looks only at the extent to which minorities and whites vote differently. See infra Part I.A.1.c.
Even more incredible, however, is the majority's assertion that the Supreme Court's definition of legally significant white bloc voting, as set forth in Justice Brennan's opinion in Gingles, is still open to question. Five Justices joined the part of Justice Brennan's opinion laying out the Gingles threshold requirements — including the requirement that minority plaintiffs "must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." 478 U.S. at 51, 106 S.Ct. at 2766. Moreover, contrary to the majority's assertions otherwise, five Justices also joined in Part III.B.2. of Justice Brennan's opinion, where he defined legally significant white bloc voting as "a white bloc vote that normally will defeat the combined strength of minority support plus white `crossover' votes." Id. at 56, 106 S.Ct. at 2769.
Although there was some disagreement over the appropriate framework for analyzing section 2 claims at the time Gingles was decided — specifically, from Justice O'Connor — recent Supreme Court cases confirm that the threshold test announced in Justice Brennan's majority opinion still controls. In Voinovich v. Quilter, ___ U.S. ___, ___, 113 S.Ct. 1149, 1157, 122 L.Ed.2d 500 (1993), Justice O'Connor, writing for a unanimous Court, stated:
(emphasis added) (internal quotations omitted) (ellipsis in original). The Court similarly embraced the Gingles threshold test, as formulated by Justice Brennan, in Growe v. Emison, ___ U.S. ___, ___, 113 S.Ct. 1075,
Thus, when the majority reformulates the third Gingles threshold factor and requires minority plaintiffs to negate the existence of partisan politics (or possibly to prove racial animus in the electorate), it does so in the face of binding Supreme Court precedent. Moreover, even assuming that Gingles did not decide the question of what constitutes legally significant white bloc voting and racially polarized voting, I still cannot agree with the majority's rendition of the various opinions in the case.
The primary disagreement in Gingles concerned Justice Brennan's statement that "the reasons black and white voters vote differently have no relevance to the central section 2 inquiry." 478 U.S. at 63, 106 S.Ct. at 2772 (emphasis added). Justice O'Connor, writing for three other Justices, disagreed. She rejected Justice Brennan's assertion that explanations for racially divergent voting patterns "can never affect the overall vote dilution inquiry," id. at 100, 106 S.Ct. at 2792 (emphasis added), and cited two examples of how such explanations might affect it. First, she noted:
Id. (emphasis added). She also believed that "Congress intended that explanations of the reasons why white voters rejected minority candidates would be probative of the likelihood that candidates elected without minority support would be willing to take the minority interests into account." Id. Contrary to the majority's assertions, however, Justice O'Connor did not "maintain[ ] that evidence that white and minority voters generally supported different candidates did not constitute legally significant racial bloc voting where these patterns were attributable to partisan affiliation rather than the race of the candidate." Majority Opinion at 856. On this issue, she stated:
Gingles, 478 U.S. at 100, 106 S.Ct. at 2792 (emphasis added). This statement suggests that evidence that divergent voting patterns are explained in part by partisan affiliation will not preclude a finding of legally significant white bloc voting — a finding which bears directly on the minority group's "prospects for electoral success."
The secondary disagreement in Gingles concerned Justice Brennan's statement that "the race of the candidate per se is irrelevant to racial bloc voting analysis." 478 U.S. at 67, 106 S.Ct. at 2775. Justice White disagreed with this statement, as did Justice O'Connor. Specifically, they both argued that the race of the candidate is relevant to the racial bloc voting inquiry. See id. at 83, 101, 106 S.Ct. at 2782, 2792. That the race of the candidate is relevant to the racial bloc voting inquiry, however, does not translate to a requirement that minority plaintiffs must negate partisan politics or prove racial animus
Finally, I must say a few words about the Supreme Court's decision in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), upon which the majority places heavy reliance. The outcome in that case — i.e., the Supreme Court's reversal of the district court's vote dilution finding — did not, in my view or in Congress' view, turn on the absence of racial bloc voting. Rather, as Congress indicated in the Senate Report accompanying the 1982 amendments to section 2, the district court's error in Whitcomb was finding vote dilution "on the basis of proof that black ghetto residents with dist[inct] legislative interests had been consistently underrepresented in the legislature in comparison with their proportion of the population." S. REP. at 20, 1982 U.S.C.C.A.N. at 198; see also id. at 23, 1982 U.S.C.C.A.N. at 200 ("Whitcomb ... recognized that, in order to prevail, plaintiffs had to prove more than that minority members had not elected legislators in proportion to their percentage of the population."). Also significant to the outcome in Whitcomb, in Congress' view, was the fact that nine blacks had won at-large elections in the time period studied in Whitcomb. See id. at 21, 1982 U.S.C.C.A.N. at 198.
(ii) Social science problems
Even without the legal problems inherent in the majority's approach to legally significant white bloc voting and racially polarized voting, the majority's approach is severely flawed from a social science perspective. Regardless of whether the majority requires a multivariate regression analysis, which would seek to eliminate all causes of voting behavior other than race, or only a trivariate regression analysis, which would attempt to eliminate partisan affiliation, there is a problem with requiring this type of evidence as an integral part of the vote dilution inquiry: it ignores the critical distinction between experimental research and non-experimental research. Specifically, it ignores the warning of most respected social scientists, including the experts who testified in this case,
It is important to recognize that the kind of evidence that the majority requires minority plaintiffs to introduce will involve no experimental manipulation of independent variables. The plaintiffs will not be able to manipulate the race or party affiliation of the candidate to determine which one had the greater effect on election outcomes. Rather, the plaintiffs will have to take existing election results and work backwards. This kind of real world research has been labelled "non-experimental research" by social scientists. See ELAZAR J. PEDHAZUR, MULTIPLE
There are two main problems with inferring causation on the basis of regression analyses in the context of non-experimental research:
PEDHAZUR, supra, at 224.
Requiring minority plaintiffs to come forward with a multivariate regression analysis to determine the causes of racially divergent voting patterns, as Judge Higginbotham originally advocated in City of Lubbock, see supra Part I.A.1.a., would implicate the second problem described above. The independent variables listed by Judge Higginbotham — including incumbency, campaign expenditures, party identification, income, media use measured by cost, religion — "tend to be correlated, sometimes substantially." PEDHAZUR, supra, at 224. Therefore, "it [becomes] difficult, if not impossible, to untangle the effects of each variable." Id. By inferring causation from such analysis, we would undoubtedly be engaging in what amounts to an "almost mindless interpretation of regression analysis in nonexperimental research." Id. at 223. In short, we would be importing "junk science" into the Voting Rights Act while rejecting it in other contexts.
Requiring minority plaintiffs to only come forward with a trivariate regression analysis, as the majority seems to do in this case, does not alleviate the social science problems; it only multiplies them. Not only does such a requirement ignore the fact that the two independent variables (i.e., race and partisan affiliation) are substantially correlated, it also runs the risk that the two variables being studied are only proxies for causal variables that are not included in the regression equation. Indeed, the majority's position in this case directly conflicts with Judge Higginbotham's statement in City of Lubbock, where he criticized a bivariate regression analysis for "ignor[ing] the reality that race or national origin may mask a host of other explanatory variables." 730 F.2d at 235. That is, a trivariate regression analysis such as the one now effectively required by the majority ignores the reality that race or partisanship "may mask a host of other explanatory variables."
The trivariate regression analyses offered in this case undoubtedly demonstrate that
(iii) The practical problem
The majority's approach to legally significant white bloc voting and racially polarized voting places an almost insurmountable hurdle in front of minority groups proceeding under section 2. Unless minority plaintiffs can successfully establish that voters in the controlling political party are racially motivated — either through the use of questionable voting statistics or by calling people from that party and asking them why they voted the way they did
The typical section 2 vote dilution case — i.e., where a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by minority and white voters to elect their preferred candidates — has two prominent features: One is a politically cohesive minority group (e.g., blacks or Hispanics) whose members share political interests and vote together, usually in a single political party that also includes whites. The other is the existence of a white majority,
Under the majority's reasoning, this typical scenario, the scenario specifically contemplated by the Gingles framework, will now preclude a finding of vote dilution. As long as some whites vote with minorities in the Democratic Party, partisan affiliation will always be a better predictor of election outcomes than race (even if a few minorities vote Republican). Such circumstances, under the majority's framework, will preclude a finding of vote dilution. In short, the majority has effectively eviscerated section 2 of the Voting Rights Act in communities where there is any measurable crossover voting by whites.
In sum, in the context of a challenge to an at-large election scheme, there are two ways to view a politically cohesive minority group, which, despite the support of some whites, is consistently unable to elect representatives of its choice. I view it as one factor suggesting vote dilution — i.e., that a minority group is submerged in a white majority and unable, despite the support of some whites, to elect representatives of its choice. The majority calls this merely interest group politics.
c. A more reasonable approach to racial bloc voting, causation, and voters' motivations
Rather than altering the section 2 framework and requiring minority plaintiffs to negate partisan politics (or perhaps to prove racial animus in the electorate) in order to make out a prima facie case of vote dilution, I would adhere to the framework established by the language of section 2, as interpreted by the Supreme Court and this court. To make out a prima facie case of vote dilution, a minority group would have to satisfy the Gingles threshold inquiry by demonstrating: (1) that it is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) that it is politically cohesive; and (3) that the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances — usually
To satisfy the third Gingles threshold requirement — i.e., legally significant white bloc voting — I would not require minority plaintiffs to either negate partisan politics or prove racial animus in the electorate. Rather, as I explained in my earlier opinion, minority plaintiffs would have to demonstrate "a white bloc vote that normally will defeat the combined strength of minority support plus white `crossover' votes." LULAC III, 986 F.2d at 745 (quoting Gingles, 478 U.S. at 56, 106 S.Ct. at 2769). This is not necessarily an easy burden. Minority plaintiffs would have to demonstrate, with a fair degree of predictability, the white majority's success. See Gingles, 478 U.S. at 51, 106 S.Ct. at 2766. They could not rely on the loss of an occasional election to establish legally significant white bloc voting. See id.
I would similarly look to objective factors in analyzing, under the totality of the circumstances, "the extent to which voting in the elections of the state or political subdivision is racially polarized." S. REP. at 29, 1982 U.S.C.C.A.N. at 206. That is, I reject the argument that "racially polarized voting," as used in the Senate Report, means racially motivated voting or voting caused by racial animus in the electorate. See LULAC III, 986 F.2d at 748. For the reasons discussed above, I also reject the majority's more strained, alternative interpretation of this requirement — that racially polarized voting is voting not caused by partisan affiliation. Finally, although I would hold that the elections most relevant to the racial bloc voting inquiry are those in which a minority candidate opposes a white candidate, I would not characterize racially polarized voting as "the tendency of citizens to vote for candidates of their own race." See id. In my view, racially polarized voting is established when "there is a consistent relationship between [the] race of the voter and the way in which the voter votes, ... or to put it differently, where [minority] voters and white voters vote differently." Gingles, 478 U.S. at 53 n. 21, 106 S.Ct. at 2768 n. 21.
This is not to say that the causes of racially divergent voting patterns, or voters' motivations, are irrelevant to the section 2 inquiry. Such causes are relevant to the white bloc voting inquiry under the Gingles threshold test, but only to the extent that they call into question the consistency with which the white bloc will oppose minority-preferred candidates. See LULAC III, 986 F.2d at 745-46 n. 6.
By refusing to make racial animus in the electorate the focus of the vote dilution inquiry, I am not attempting to sever section 2 from its constitutional underpinnings. Minority plaintiffs ultimately have the burden, under the totality of circumstances inquiry, to demonstrate that their inability to participate in the political process and elect representatives of their choice is "on account of race or color." See LULAC III, 986 F.2d at 754-55. This inquiry is not a narrow one that focuses on the present motivation of voters, but a blended one that focuses on the past and present reality of the local political landscape. See S. REP. at 30, 1982 U.S.C.C.A.N. at 208. Minority plaintiffs can meet this burden by demonstrating some mix of factors under the totality of the circumstances — such as the existence of racially polarized voting, a history of official discrimination, the lingering socioeconomic effects of discrimination, racial campaign appeals, and other features of the current or past racial climate. See LULAC III, 986 F.2d at 755.
Unlike the majority, then, I cannot conclude that the district court clearly erred in finding legally significant white bloc voting and racially polarized voting in Texas district court elections — at least with respect to eight of the nine counties at issue in this case. The Plaintiffs offered evidence sufficient to support the district court's findings that the white bloc vote in Bexar, Dallas, Ector, Harris, Jefferson, Lubbock, Midland, and Tarrant counties will usually defeat the minority's preferred candidate. The Plaintiffs also offered substantial statistical evidence of racially polarized, or racially divergent, voting patterns. The district court's findings with respect to these specific inquiries are plausible in light of the record viewed as a whole; therefore, they are not clearly erroneous.
Nor can I join the majority's conclusion that the district court, by stating that the causes of racially divergent voting patterns are irrelevant to the section 2 inquiry, committed reversible error. The district court was, admittedly, wrong to suggest that the causes of racially polarized voting are irrelevant; however, the evidence offered by the State of Texas in this case concerning the causes of racially divergent voting patterns is insufficient, in my view, to negate or undercut the district court's ultimate finding, in eight of the nine counties, that blacks and Hispanics have an unequal opportunity to participate in the political process and elect representatives of their choice "on account of race or color." See LULAC III, 986 F.2d at 803-13. The trivariate regression analyses offered by the State Defendants simply do not explain why people vote the way they do. Even under the majority's narrow view of the section 2 inquiry, they do not negate "race or color" as an explanation for the inability of minorities to elect representatives of their choice.
2. Other Examples of Alterations in the Section 2 Inquiry
In its efforts to overhaul section 2, the majority does not stop at reformulating the white bloc voting and racially polarized voting inquiries. It also changes — in some instances, sua sponte — the rules with respect to several other specific inquiries under the totality of the circumstances. In particular, the majority (a) now uses the lingering socioeconomic effects of discrimination as a factor
a. Lingering socioeconomic effects of discrimination: the paucity of minority lawyers
The majority concludes that the Plaintiffs' vote dilution case in each of the counties is weakened by the indisputable fact that, in all of the counties, the percentage of minority lawyers is much smaller than the percentage of minority voters. The appalling lack of minority judges on the Texas district court bench does not point towards vote dilution, we are told, because "[t]he absence of eligible candidates goes a long way in explaining the absence of minority judges." Majority Opinion at 866. Indeed, the majority proclaims that minorities are overrepresented on the district court bench. It argues, on the one hand, that the Voting Rights Act is "not an unbridled license — to explore for example the persistent low enrollment of black law students." Id. at 893. It then suggests, however, that blacks are somehow responsible for their own plight — i.e., for their persistent low enrollment in law school. See id. at 893-94.
I cannot agree with the majority that the lack or absence of minority lawyers undercuts the Plaintiffs' vote dilution case. First, in assessing the extent to which minority candidates have been elected to public office, the appropriate comparison pool has always been the number of minorities in the population. See 42 U.S.C. § 1973(b) ("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 in numbers equal to their proportion in the population"); see also LULAC III, 986 F.2d at 750-52.
Even more inexcusable, however, is the majority's refusal to recognize that the comparative lack of minority lawyers constitutes evidence of the lingering socioeconomic effects of discrimination, which argues in favor of a vote dilution finding. The Senate Report accompanying the amended section 2 instructs courts to consider "the extent to
Nor can one seriously dispute that this lingering socioeconomic effect of discrimination hinders the ability of minorities to participate in the political process. Contrary to the majority's suggestions otherwise,
Thus, like the majority, I would hold that the relative lack of eligible minority candidates is relevant to the section 2 inquiry. Unlike the majority, however, this indisputable fact would not argue against a finding of dilution; it would be compelling evidence of the extent to which blacks and Hispanics continue to "bear the effects of discrimination in such areas as education [and] employment, ... which hinder their ability to participate effectively in the political process." S. REP. at 29, 1982 U.S.C.C.A.N. at 206.
b. Past official discrimination
The majority also suggests that the long history of discrimination against blacks and Hispanics in Texas is entitled to little, if any, independent weight under the totality of the circumstances. The majority recognizes that "Texas' long history of discrimination against its black and Hispanic citizens in all areas of public life is not the subject of dispute." Majority Opinion at 866. However, in discussing the totality of the circumstances in its application of the law to each county, the majority brushes over this history as if it were somehow irrelevant to the section 2 inquiry. I cannot join this decision to amend section 2.
The Senate Report specifically instructs courts to consider, as an independent factor under the totality of the circumstances, "the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the political process." S. REP. at 28, 1982 U.S.C.C.A.N. at 206. By including this factor as a signal of vote dilution, Congress made a legislative decision, which we must respect, that evidence of past discrimination — even standing alone — is a factor pointing toward vote dilution under
The majority thus attempts, in the words of Charles Black, Jr., to "uncouple present from past." Charles L. Black, Jr., And Our Posterity, 102 YALE L.J. 1527, 1529 (1993). As Professor Black aptly observes, however,
Id. at 1529-30; see also supra note 15.
The simple fact is that blacks and Hispanics in Texas have indisputably been the victims of official discrimination in all areas of life. The district court was warranted in taking judicial notice of this history, and in giving it weight in deciding whether the Plaintiffs demonstrated an inability to participate in the political process and elect representatives of their choice "on account of race or color." For the majority to suggest otherwise is to "publish a general Act of Oblivion." Black, supra, at 1530. I will not join such an act.
c. The elevation of several factors under the totality of circumstances inquiry
The majority further reveals its intent to shift the focus of the section 2 inquiry by elevating certain factors under the totality of the circumstances. In particular, the majority states that, in determining the strength of a vote dilution case, courts must consider, among other things: the willingness of the racial or ethnic majority to give their votes to minority candidates of their own party; whether the minority plaintiffs have found proof of racial campaign appeals; and whether elected officials were found to be nonresponsive to the needs of minority voters.
These factors are undoubtedly relevant to the section 2 inquiry, but to elevate them, as the majority does, changes the focus of the analytical framework. All of them — the willingness of white voters to vote for minority candidates of their own race,
Moreover, elevating these factors ignores Congress' instructions in the Senate Report that "there is no requirement that any particular number of factors be proved, or that a majority point one way or the other." S. REP. at 29, 1982 U.S.C.C.A.N. at 207. In particular, it ignores the statement in the Senate Report that "[u]nresponsiveness is not an essential part of plaintiff's case."). Id. at 29 n. 116; 1982 U.S.C.C.A.N. at 207; see also United States v. Marengo County Comm'n, 731 F.2d at 1571 (The absence of racial campaign appeals "should not weigh heavily against a plaintiff proceeding under the results test of section 2."). Unlike the majority, then, I would not elevate these factors under the section 2 inquiry.
d. Forcing minority groups to proceed as a coalition
Finally, the majority demonstrates the extent to which it will go to overhaul section 2 (and to preserve Texas' method for electing district court judges) by holding that the district court clearly erred in refusing to give equal weight to elections involving whites and Hispanics in Harris and Tarrant counties. In both of these counties, Plaintiffs proceeded only on behalf of black voters. The majority, noting that political cohesion is a "question of fact" and not a strategic card, makes a finding of fact on appeal that blacks and Hispanics in these two counties are politically cohesive. It makes this fact finding even though the parties never requested the district court to do so.
By making this finding, the majority shows a complete lack of judicial restraint. Regardless of what one thinks about allowing various minority groups to voluntarily combine themselves for section 2 purposes,
3. The Result of the Majority's Handiwork
In sum, I reject the majority's characterization of the evidence of vote dilution offered in this case. It can only be characterized as weak by altering the section 2 inquiry, which the majority does freely. No longer is the inquiry a blended one, which looks to the past and present reality of the local political landscape. It is now a selective inquiry into the present. I cannot join this restructuring of the section 2 inquiry.
B. The Weight of the State of Texas' Interest in Maintaining the Current Electoral System
Nor can I join the majority in its conclusion that the State of Texas' interest in maintaining its current system — specifically, its interest in linking electoral base to "primary jurisdiction" — is substantial enough to outweigh the Plaintiffs' proof of vote dilution. This interest is little more than tenuous and could not outweigh even weak evidence of vote dilution.
The majority argues that Texas links the primary jurisdiction of its district courts with their electoral base in order to preserve the values of independence and accountability. This so-called linkage interest, we are told, is substantial, because it represents the State of Texas' decision about what constitutes a state district judge. According to the majority, by linking district judges' electoral base with their area of primary jurisdiction, the State of Texas has made a decision similar to the State of Missouri's decision in Gregory v. Ashcroft, ___ U.S. ___, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), to have age qualifications for its judges.
Assuming arguendo that we are supposed to weigh non-tenuous state interests against proven vote dilution,
1. Questioning Texas' Insistence on Linkage
The majority concludes that the State of Texas does in fact link the primary jurisdiction of state district court judges with their electoral base. In doing so, it ignores that the concept of "primary jurisdiction" is found nowhere in Texas law. It also ignores that any historical insistence on "linkage" has been seriously undermined in recent years — and in recent weeks.
As discussed in my earlier opinion, state district judges in Texas do not have "primary jurisdiction" that is co-extensive with a county. See LULAC III, 986 F.2d at 767; see also McDuff, supra note 21, at 956-57. They may have primary venue responsibility that coincides with county lines, but a state district judge has state-wide jurisdiction. See TEX. CONST. art. V, § 8. For example, a state district judge elected only by the voters of
Moreover, Texas does not insist that its district judges be elected from an area no smaller than a county. Since 1985, the Texas Constitution has specifically authorized the voters of a county to decide to elect their district judges from an area smaller than a county. See TEX. CONST. art. V, §§ 7, 7a. Texas also makes extensive use of visiting and retired judges, thus indicating its willingness to use judges who either were not elected at all or whose electoral base is not at all linked to some amorphous concept of "primary jurisdiction." See LULAC III, 986 F.2d at 768. Also relevant in this regard is the State of Texas' willingness to settle this lawsuit, which is discussed more fully in Part II infra. The Governor, the Attorney General, and the elected representatives of the people of the state have all expressed approval of a settlement calling for the election of district judges from areas that are smaller than a county. These recent events undoubtedly call into question the State of Texas' insistence on linkage.
2. Questioning the Value of Linkage
Even if the State of Texas did consistently link a district judge's electoral base with venue, there is a serious question as to whether such insistence on linkage would in fact advance Texas' interests in judicial accountability and independence. The reality is that Texas's venue rules do not, and were not meant to, ensure the accountability of judges. Moreover, there are flaws in the assumptions underlying majority's assertion that linkage serves to advance the independence and fairness of district judges.
I do not see, and the majority does not explain, how linking electoral base with venue advances the State of Texas' interest in judicial accountability. If linkage did advance such an interest, one might expect the state's venue rules to reflect this purpose. As previously noted, however,
LULAC III, 986 F.2d at 768. Moreover, given the unusually large size of the election districts in several of the counties at issue in this case, it strains credibility to maintain that linkage advances the state's interest in judicial accountability. As several of the defense witnesses at trial testified, most people have no idea of who they are voting for in district court elections. These observations suggest that linkage in the large counties at issue in this case, rather than advancing the value of judicial accountability, actually detracts from it. See also H.J. of TEX, 73d Leg., R.S. 479, 482 (1993) (Address of Chief Justice Thomas R. Phillips) (arguing that retention elections should be used to enhance the accountability of judges and suggesting that, under the current system, "the people have no meaningful vote").
As for the State of Texas' interest in judicial independence, linkage advances it, if at all, only marginally. What ensures judicial independence are the integrity of individual judges and the Texas Code of Judicial Conduct, which directs judges not to be swayed "by partisan interests, public clamor, or fear of criticism." TEX. CODE OF JUDICIAL CONDUCT, Canon 3, pt. A(1). The argument that linkage advances the State of Texas' interest in judicial independence is, at bottom, a smokescreen: It suggests that district judges who are currently elected by white majorities, often with the substantial support of
3. The Existence of Less Intrusive Means
Finally, Texas' linkage interest is weakened by the existence of less intrusive means. I am referring specifically to the possible use of limited or cumulative voting. Both of these methods of election would preserve the link, to the extent there is any, between a district judge's electoral base and his or her area of primary venue responsibility. It would also serve, at least to the same extent as the current method of electing judges, Texas' interests in having accountable and independent judges.
The majority's refuses to consider cumulative and limited voting as a less intrusive means. It argues that, because "[l]imited and cumulative voting are election mechanisms that preserve at-large elections," they "are not `remedies' for the particular structural problem that the plaintiffs have chosen to attack." Majority Opinion at 876. Thus, the majority decides, "[w]e will not discount [the state's] interest based upon purported remedies that preserve the challenged at-large scheme." Id.
The majority misses the point. The Plaintiffs in this case allege that Texas' current method of electing district judges in county-wide elections dilutes their voting strength. Contrary to the majority's hypertechnical argument, cumulative or limited voting would remove the dilutive aspect of the current at-large system, which is what the Plaintiffs are challenging. That it would also preserve county-wide elections merely serves to demonstrate that it is a less intrusive means for advancing Texas' asserted interests. The majority's refusal to consider these other means, in determining the weight of the state's interests, is indefensible.
4. The Nature of Texas' Linkage Interest
Contrary to the majority's assertions, Texas' interest in linking the electoral base of its judges with venue is not a decision about what constitutes a state district court judge; indeed, it is nothing more than a decision about how to elect district court judges. The state's insistence on linking the electoral base of district judges with their area of primary venue responsibility has, in recent years and recent weeks, almost evaporated, and there are serious doubts as to whether linkage in fact advances the values of judicial accountability and independence. Further, there are other means to preserve the so-called linkage interest. Unlike the majority, then, I cannot say that the State of Texas' interest in linkage — which is simply a shorthand way of referring to its interest in maintaining the status quo — is anything like Missouri's decision in Gregory about the qualifications of a state judge.
I would therefore hold that the state's interest in linking the electoral base of its judges with their primary venue responsibility, allegedly to foster judicial independence and accountability, is little more than tenuous. At best, the argument is about appearances. At worst, it exhibits an unfounded fear of having judges elected from majority-minority districts. In any event, the majority's conclusion that this interest is substantial is not founded in the record, in Texas
II. THE MOTION TO REMAND
Given the majority's misguided and destructive efforts on the merits of this case, one might reasonably ask why the Plaintiffs and the State of Texas, acting through its Attorney General, were not given the opportunity to settle this dispute. The majority offers three reasons: First, the majority suggests that the motion to remand should be denied because the Texas Attorney General is somehow acting beyond the scope of his authority. The majority also makes a related argument that the motion must be denied because not all of the "defendants" have consented to the remand or to the proposed settlement. Finally, the majority declines to remand for a hearing on the proposed settlement on the ground that the settlement is inconsistent with state law.
As explained below, none of the reasons proffered by the majority precludes a remand for purposes of conducting a settlement hearing. That is, the majority could have easily remanded this case, but chose not to because it wanted to reach the merits of this case and overhaul the Voting Rights Act. I cannot embrace such reasoning.
A. Does the Attorney General Have the Authority to Settle this Lawsuit?
In suggesting that the Texas Attorney General is acting beyond the scope of his authority by agreeing to the proposed settlement and requesting a remand, the majority misperceives the nature of the Attorney General's status in this lawsuit. That is, the majority treats the Attorney General as just another lawyer who is representing the various officials named as defendants. The Attorney General, however, is not just another lawyer; he is also a named defendant, as well as the chief legal officer for the State of Texas in this litigation. As such, he had the power under Texas law to negotiate and execute the proposed settlement and to request a remand of this case.
1. The Nature of this Lawsuit
The majority correctly notes that the Plaintiffs in this case filed suit against the Attorney General of Texas, the Texas Secretary of State, and the members of the Texas Judicial Districts Board (including the Board's chairman, Chief Justice Phillips). These defendants were not named in their individual capacities, but only in their official capacities. The Plaintiffs were apparently required to do this under the Supreme Court's Eleventh Amendment jurisprudence — specifically, under the fiction of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which holds that a suit for declaratory and injunctive relief against state officers does not constitute a suit against the state for Eleventh Amendment immunity purposes.
Jurisdictional fictions notwithstanding, I would hold that, at least for purposes of
This case is not, therefore, like Public Utility Comm'n of Texas v. Cofer, 754 S.W.2d 121 (Tex.1988), where the Attorney General's clients — two state agencies which he was obligated to represent under separate statutes
2. The Attorney General's Power to Represent the State
Once it is recognized that the State of Texas and its election process are the real targets of the Plaintiffs' lawsuit, the question then becomes: Who is authorized to represent state and protect its interests? The answer is supplied by state law. Cf. New York v. Uplinger, 467 U.S. 246, 248, 104 S.Ct. 2332, 2332, 81 L.Ed.2d 201 (1984) ("The allocation of authority among state officers to represent the State before this Court is, of course, wholly a matter of state concern.").
The State of Texas, through constitutional and statutory law, has appointed the Attorney General to represent its interests in litigation such as this.
Contrary to the majority's assertions, the Texas Attorney General is not just another lawyer. Unlike an ordinary lawyer he is entitled and obligated by law to represent his client, the state. The Texas Supreme Court recognized as much in Maud v. Terrell, 109 Tex. 97, 200 S.W. 375, 376 (1918), when it explained:
(internal citations omitted); see also Hill v. Texas Water Quality Board, 568 S.W.2d 738, 741 (Tex.Civ.App. — Austin 1978, writ ref'd n.r.e.) ("[E]ither the Attorney General or a county or district attorney may represent the State in a particular situation, but these are the only choices[;] whichever official represents the State exercises exclusive authority and if services of other lawyers are utilized they must be `in subordination' to his authority."). Moreover, the Texas Attorney General has broad discretion to control litigation strategy where he is representing the state. Indeed, in Charles Scribner's Sons v. Marrs, 114 Tex. 11, 262 S.W. 722, 727 (1924), the Texas Supreme Court stated that, "[e]ven in the matter of bringing suits, the Attorney General must exercise judgment and discretion, which will not be controlled by other authorities." See also Bullock v. Texas Skating Ass'n, 583 S.W.2d at 894.
Despite this language from the highest court in Texas, the majority insists that the Attorney General is not the exclusive representative of the State of Texas in matters of litigation. The majority curiously finds compelling Chief Justice Phillips' argument that, as Chairman of the Judicial Districts Board, "he has the authority to defend this lawsuit if the Attorney General will not." Majority Opinion at 841.
The majority's reliance on Baker is wholly misplaced. In allowing a state district attorney to intervene on appeal and defend the constitutionality of Texas' sodomy statute, Judge Reavley emphasized the narrowness of the decision. Among other things, he noted that, "as of the date of the entry of the district court's judgment, [the state district attorney] was a member of the [defendant] class, was enjoined by that judgment, and as district attorney was a proper official under Texas law to represent the state." Id. at 291 (emphasis added) (citing TEX. CONST. art. V, § 21). In this case, by contrast, Chief Justice Phillips is not a proper official under Texas law to represent the state. Indeed, the majority has pointed to no provision of Texas law, and I can find none, that would even arguably allow the members of the Texas Judicial Districts board to represent the interests of the state in litigation.
Thus, our decision in Baker is consistent with Texas law, which provides that "either the Attorney General or a county or district attorney may represent the State in a particular situation." See Hill v. Texas Water Quality Board, 568 S.W.2d at 741. The majority opinion, on the other hand, ignores Texas law when it refuses to recognize that "these are the only choices." Id. Unlike the majority, then, I would hold that the Attorney General has the exclusive authority to represent the interests of the state in this litigation.
3. The Attorney General's Power to Settle on Behalf of the State
The majority's failure to perceive the nature of this lawsuit, as well as its failure to understand the broad and exclusive powers of the Texas Attorney General, ultimately leads it to suggest that the Attorney General in this case has acted beyond his authority in approving the settlement and asking for a remand. I reject this suggestion.
In Terrazas v. Ramirez, 829 S.W.2d 712 (Tex.1991), seven of nine members of the Texas Supreme Court rejected a similar argument. In particular, they rejected an argument that the Attorney General lacked the power to negotiate and execute a settlement agreement on behalf of the state. A plurality of the court, consisting of Justice Hecht, Chief Justice Phillips, and Justice Cook, reasoned as follows:
Id. at 721-22 (internal citations omitted) (emphasis added). Justice Hightower and Justice Gammage, dissenting on other grounds, recognized that the "Attorney General, in carrying out his constitutional responsibility to represent the interests of the state, has discretionary power to settle lawsuits on behalf of the state so long as he does not usurp the authority of a co-equal department of government." Id. at 753 (Hightower, J., joined by Gammage, J., dissenting). In a separate dissent, Justice Mauzy and Justice Doggett made similar statements about the Attorney General's power to settle lawsuits. See id. at 746-47 (Mauzy, J., joined by Doggett, J., dissenting). Thus, as Justice Mauzy
Consistently with the Texas Supreme Court's disposition in Terrazas, I would hold that the Texas Attorney General acted within his power as the chief legal officer of the state by executing the proposed settlement and, thereafter, by requesting a remand. This lawsuit is, for all practical purposes, a suit against the State of Texas, and the decisions by the Attorney General in this regard are quintessential decisions about how to protect the state's interests in litigation — decisions which, under Texas law, he is constitutionally empowered to make on behalf of the state.
B. Who Must Consent to the Settlement?
The majority also offers a second ground for refusing to remand the case for a hearing on the proposed settlement: that not all of the "defendants" have consented to the remand or to the settlement. In particular, the majority argues that, because the two intervening district judges, Judge Wood and Judge Entz, as well as Chief Justice Phillips, object to the settlement, the settlement could not be approved and therefore the case should not be remanded. Again, I disagree. In my view, by obtaining the consent of the Texas legislature, the Texas Attorney General did as much as (or perhaps more than) he was required to do under Texas law.
1. Not the Intervening Judges
Judge Wood and Judge Entz's objections to the settlement do not preclude a remand. The Supreme Court's decision in Local Number 93, International Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), could not be clearer on this point. There, the court held that a union, who intervened as a matter of right, could not block the entry of a consent decree merely by withholding its consent to the settlement. The Court stated:
Id. at 528-29, 106 S.Ct. at 3079.
Admittedly, a court may not enter a consent decree which has the effect of disposing "of the valid claims of nonconsenting intervenors." Id. at 529, 106 S.Ct. at 3079. Nor may a court "enter a consent decree that imposes obligations on a party that did not consent to the decree." Id. But these concerns are not implicated by the settlement proposed in this case.
The proposed settlement agreement in this case does not dispose of the "valid claims" of Judge Wood and Judge Entz. They are only permissive intervenors. See New Orleans
Unlike the majority, therefore, I do not think that the intervening judges have to power to block the motion to remand or the entry of the proposed settlement in this case. As permissive intervenors, they have no "claims" or "defenses" that are adjudicated by the proposed settlement. And even a cursory reading of the proposed settlement reveals that it does not impose obligations or duties on the intervening judges. Thus, under Firefighters, their withholding of consent to the motion to remand is simply irrelevant.
2. Not Chief Justice Phillips
I would also hold that Chief Justice Phillips' objections to this particular settlement do not preclude a remand. As explained earlier, I do not view this lawsuit as being one against the various named officials, but rather, as one against the State of Texas. And because the Attorney General is the exclusive representative of the state in such matters, the consent of Chief Justice Phillips is not required.
The Austin appellate court's decision in Bullock v. Texas Skating Ass'n, which was cited with approval by the plurality opinion in Terrazas, is particularly instructive. In this tax refund case, the plaintiff, who had prevailed in the lower court, argued that the Attorney General's notice of appeal should be dismissed because one of the Attorney General's "clients" — namely, the Comptroller — had instructed the Attorney General not to file a notice of appeal from the adverse decision. In denying the plaintiff's motion as meritless, the Bullock court first described the status of the various named defendants. It stated, "The Attorney General is a defendant in suits of this type in the same manner that the Comptroller and the Treasurer are jurisdictional parties, although the State of Texas is the actual party in [a] suit to recover taxes." 583 S.W.2d at 894. The court then rejected the plaintiff's argument that "the Comptroller, in the exercise of his administrative duties, such as tax refunds, can bring litigation to a halt at any time." Id. It explained:
Id. (internal citations and quotation marks omitted).
Like the majority, I think that the decision to settle a lawsuit is, for all practical purposes, indistinguishable from the decision to file (or not to file) a notice of appeal. Unlike the majority, however, I also think that the Attorney General's decision on these issues controls — at least when it does not conflict with the view of another appropriate representative of the state. See supra Part II.A.2 (discussing Baker v. Wade). Thus, I do not think that Chief Justice Phillips, who is at most a "jurisdictional party,"
3. Perhaps the Texas Legislature
In concluding that neither the consent of the intervening judges nor the consent of Chief Justice Phillips is required, I am not unmindful of the potential for state law separation of powers problems in cases like these. See Terrazas, 829 S.W.2d at 720. Nor was the Attorney General unmindful of the potential for such problems in this case. This is why he sought and obtained approval of the proposed settlement from both houses of the Texas legislature.
The majority suggests that, because the Texas legislature could not enact the proposed settlement into law, its less formal approval of the proposed settlement is meaningless. I disagree. The Texas Senate, acting as a Committee of the Whole (which is authorized by Texas law), expressed its approval of the proposed settlement in the form of a resolution. The Texas House similarly approved the proposed settlement through a resolution. Both of these resolutions were "official" expressions of the Texas legislature's position on the question of whether this case should be settled.
In my view, these resolutions only reinforce the conclusion that the State of Texas has consented to a remand and to entry of the proposed settlement. That two intervening judges and Chief Justice Phillips, none of whom was elected to represent the state in matters of litigation, do not consent, only serves to highlight the extent to which this lawsuit has become politicized. Their failure to consent does not, however, preclude a remand or the entry of a settlement agreement.
C. Can the Proposed Settlement Override State Law?
Finally, the majority declines to remand this case because the proposed settlement is inconsistent with state law — specifically, the provision of the Texas Constitution that allows judicial districts to be drawn smaller than a county, but only with the approval of the voters of the county. See TEX. CONST. art. V, § 7a(i). The majority holds that, without a final, non-appealable decision finding a section 2 violation, voting rights cases cannot be settled in a way that is inconsistent with state law. Once again, I must disagree.
The majority argues that in Chisom v. Roemer, 970 F.2d 1408, 1409 (5th Cir.1992), where we remanded a case similar to this, we were able to remand because the parties brought with them a duly enacted state law. Even assuming that the settlement proposed in Chisom was entirely consistent with state law — a matter upon which we expressed no opinion
I think the district court's section 2 liability findings provide a sufficient basis for remanding the case for a hearing on the proposed settlement. Of course, I agree with the majority that the district court would not be able to "merely sign on the line provided by the parties." See United States v. City of Miami, Florida, 664 F.2d 435 (Former 5th Cir.1981) (en banc). Given the detailed section 2 findings already made by the district court, however, I do not think that the settlement's apparent inconsistency with state law is a reason to deny the motion to remand.
Our decision in Overton v. City of Austin, 748 F.2d 941 (5th Cir.1984), rather than arguing against a remand, suggests that a remand may be particularly appropriate in this case. There, we refused to mandamus a district court to enter a proposed consent decree based on a settlement between minority plaintiffs and the City of Austin. We noted that, at the time the settlement was presented for approval, no evidence of vote dilution had been presented to the district court. In holding that the district court did not abuse its wide discretion in refusing to enter the consent decree, we concluded that the parties were effectively trying to accomplish a result — namely, the amending of Austin's City Charter — which they did not have the power to do without a vote of the people. We stated:
748 F.2d at 956-57 (emphasis added).
When the parties in this case presented their motion to remand, the case was in a very different posture than the one in Overton. There had been lengthy trial, during which time the Plaintiffs presented substantial evidence of vote dilution. Moreover, the only decision which still stood was the district court's — i.e., the one holding that Texas' method of electing district judges in at-large, county-wide elections operates in the nine target counties to dilute minority voting strength. In my view, this decision constitutes a "properly grounded judicial determination" that the current system is illegal. It was based on the evidence presented at trial and represents a reasonable interpretation of that evidence. This finding should be sufficient under Overton to allow the parties to effectuate a settlement they otherwise would not have the authority to bring about under state law.
Also, because this settlement has been approved by a majority of both houses of the Texas legislature, I think that the motion to
Id. at 548, 98 S.Ct. at 2501. (Powell, J., concurring, joined by Burger, C.J., Blackmun, and Rehnquist, JJ.). Although the resolutions passed by the Texas legislature in this case do not have the force of law, they do represent an official expression of the "elected representatives of the people" of Texas on the questions of whether and how this case should be settled.
Ultimately, the majority is able to rely on the settlement's apparent inconsistency with state law as a ground to deny the motion to remand because it is convinced "there is no [section 2] case" here. Even a cursory review of the record in this case discounts the majority's characterization of the Plaintiffs' evidence of vote dilution. See generally supra Part I. But the majority's statement does reveal something about its real motivation for denying the motion to remand: its unwavering desire to reach the merits of this case so that it can overhaul the Voting Rights Act.
D. The Implications of the Majority's Decision to Deny the Motion to Remand
In sum, the majority offers three reasons why the motion to remand filed by the State of Texas and the Plaintiffs in this case must be denied. None is persuasive. The majority cannot seriously argue that the Attorney General has exceeded his authority or that he has somehow failed in his duty to represent the interests of the State of Texas. And, although the majority correctly notes that not all of the nominal "defendants" have joined in the motion to remand, it offers no reason why the case cannot be remanded without the consent of the intervening judges and Chief Justice Phillips. Finally, the majority is able to rely on the fact that the proposed settlement is inconsistent with Texas law only by reaching the merits of the underlying section 2 dispute — and reversing the district court on clearly erroneous grounds.
The majority's rationale for denying the motion to remand will discourage, if not prohibit, the settling of most voting rights cases. It will effectively require the consent of all of the various named officials, as well as any party who, for whatever reason, has been permitted to intervene. And, in most cases, it will require a final, non-appealable decision that there is a section 2 violation. That is, under the majority's reasoning, a state may effectively be forced to defend an election system, even when its chief legal officer thinks that the system runs afoul of the Voting Rights Act, unless there is a conclusive determination by the Supreme Court that the system does indeed violate section 2. Somehow, I do not think this is consistent with our policy of encouraging settlements in other areas of the law.
Moreover, the majority's rationale for denying the motion to remand places a premium on judicial efficiency. The majority concludes that, based upon the evidence the Plaintiffs' adduced at trial, no reasonable district court could enter a consent decree that would override provisions of Texas law. Of course, in making this conclusion, the majority necessarily tramples upon other judicial values that are equally, if not more, important — namely, the values of judicial restraint and federalism. It also turns a deaf ear to the one voice in this lawsuit who is authorized to speak on behalf of the State of Texas, the Attorney General, and ignores the
Instead of elevating judicial efficiency above these other values, I would grant the motion to remand. In doing so, I would express no opinion on the proposed settlement, but would instruct the district court that it should carefully consider the objections of the intervening judges, Chief Justice Phillips, and other interested parties. I would also instruct the district court that, in deciding whether a settlement can override state law, it must consider all evidence relevant to the question of whether there is a section 2 violation, including the state's valid interests in maintaining the current system.
Admittedly, this course of action might eliminate our opportunity to address many of the new, burning questions about the frame-work for deciding section 2 cases. But that is not the duty of an Article III court. Rather, as the majority notes, "[o]ur job is to decide a case or controversy." Majority Opinion at 847. Where the plaintiffs and the defendant in a case have expressed a desire to settle their dispute, I think that principles of judicial restraint require us to give them the opportunity to do so.
WIENER, Circuit Judge, dissenting.
I respectfully dissent. In so doing I join the dissent of Chief Judge Politz in the belief that we judge best when we judge least, particularly in controversial matters of high public interest to the several states. If forced to take a position on the merits of this, the second en banc consideration of the case, I would regrettably find it impossible to concur in the reasoning of Judge Higginbotham's majority opinion or Judge Jones' concurring opinion. For me those writings simply do not "hang together." I would therefore reach the same conclusion as does Judge King in her dissent — and for most if not all of the same reasons.
State ex rel. Amerland v. Hagan, 44 N.D. 306, 175 N.W. 372, 374 (1919), overruled on other grounds, Benson v. North Dakota Workmen's Compensation Bureau, 283 N.W.2d 96 (N.D.1979). According to the Mississippi Supreme Court,
State ex rel. Allain v. Mississippi Public Serv. Comm'n, 418 So.2d 779, 784 (Miss.1982); see also Frazier v. State by and through Pittman, 504 So.2d 675, 691 (Miss.1987) (where attorney general refuses to represent state agency, agency is entitled to its own lawyer and court may retain jurisdiction and entertain the suit). Arizona does not permit its Attorney General to appeal a decision against the wishes of the state agency he represents. Santa Rita Mining Co. v. Department of Property Valuation, 111 Ariz. 368, 530 P.2d 360 (1975). Finally, the authority of the Attorney General of Illinois does not permit him to waive the rights of his client. Cook County v. Patka, 85 Ill.App.3d 5, 40 Ill.Dec. 284, 288, 405 N.E.2d 1376, 1380 (1980).
Art. 5, § 7a(i) provides:
(b) A violation of subsection (a) is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
42 U.S.C. § 1973.
Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are:
S. Rep. 417 at 28-29, reprinted in 1982 U.S.Code Cong. & Admin.News at 206-07. These factors are derived from our decision in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973), aff'd sub nom East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), as well as White. See S. Rep. 417 at 28 n. 113, reprinted in 1982 U.S.Code Cong. & Admin.News at 206 n. 113.
Id., 403 U.S. at 149-50, 91 S.Ct. at 1872.
As we state in the text, we regard evidence that divergent voting patterns are attributable to partisan affiliation or perceived interests rather than race as quite probative on the question of a minority group's future success at the polls. The dissent, however, while apparently willing to consider other possible non-racial causes, asserts that partisan affiliation is insignificant. We are told, in fact, that "the Voting Rights Act, as interpreted in Gingles and succeeding cases, pre-supposes partisan voting." Dissent at 910. This refusal to distinguish racial politics from partisan politics strikes us as utterly inconsistent with the unbroken line of authority extending from Whitcomb and White through Justice Marshall's dissent in Bolden and the 1982 amendments to the controlling concurring opinions in Gingles the dissent purports to embrace.
S. Rep. 417 at 28-29, reprinted in 1982 U.S.Code Cong. & Admin. News at 206.
Mississippi and Louisiana only recently abandoned the link between jurisdiction and electoral base in order to settle prolonged litigation.
North Carolina allows every elector within a district court's jurisdiction to vote for its judge by holding statewide elections after district-wide primaries. See Republican Party of N.C. v. Martin, 980 F.2d 943, 947 (4th Cir.1992) (holding that Fourteenth Amendment challenge to system by Republican Party is justiciable).
Table VI.B Indigenous judicial elections (Harris County) 1. candidate listed first prevailed 2. bold indicates black-preferred candidate 3. * indicates race Engstrom studied 4. ✓ indicates victory by black-preferred candidate
Year Court Candidates Race Party1980 80th District* McAfee W R BonnerB D " 309th District Zimmerman W R HinojosaH D " County Crim Ct 6 Musselwhite W R MuldrowB D 1982 157th District SalazarH D ✓ Powell W R " 208th District* RouttB D ✓ Arnold W R " 262d District* Shaver W R JamesB D " 281st District* Moore W R WardB D " 308th District RobertsonW D ✓ Leal H R " County Crim Ct 6 Musselwhite W R MuldrowB D " County Crim Ct 9 LealH D ✓ Kolenda W R 1984 80th District* Powell W R BerryB D " 178th District* Harmon W R JacksonB D " 215th District* Chambers W R LeeB D " 339th District Lanford W R SalinasH D " County Civil Ct 3 Hughes W R HobsonB D 1986 133d District* McCorkle W R PlummerB D " 157th District SalazarH D ✓ Wittig W R " 180th District Lykos W R GuerreroH D " 185th District* WalkerB D ✓ Godwin W R " 209th District McSpadden W R SanchezH D " 232d District AziosH D ✓ Youngblood W R " 245th District* SchubleW D ✓ Proctor B R " 281st District* Moore W R BerryB D " 308th District RobertsonW D ✓ Dodier H R " County Civil Ct 3 HobsonB D ✓ Hughes W R " County Crim Ct 3 DuncanW D ✓ Irvin B R " County Crim Ct 4 Anderson W R WilliamsB D " County Crim Ct 9 LealH D ✓ Powell W R " County Crim Ct 11 MendozaH D ✓ Pickren W R " County Crim Ct 13 Atkinson W R FitchB D " County Crim Ct 14 Barclay W R FisherB D " County Probate Ct 4 McCullough W R LeeB D 1988 80th District* Powell W R BerryB D " 133d District* McCorkle W R PlummerB D " 152d District* O'Neill W R FitchB D " 179th District Wilkinson W R GuerreroH D " 215th District* Chambers W R JacksonB D " 295th District* Downey W R LeeB D " 333d District* Wilson W R SpencerB D " 351st District SalinasH D ✓ Pruett W R
Butler and Murray term "shocking" the court's reliance only on the facts that suit has been brought jointly and that the minority groups are willing to work together to accomplish "compatible" goals. Butler and Murray, supra at 667.
Butler and Murray, supra, 667-68 (emphasis added).
Nixon at 790 F.Supp. 744.
I further note that although courts generally must defer to state apportionment policy in fashioning the remedy for a violation of Section 2, district courts have equitable power to depart from state law if necessary. See, e.g., White v. Weiser, 412 U.S. 783, 797, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335 (1983) (Constitution and Voting Rights Act limit judicial deference to state apportionment policy). If the court ultimately concludes that there is a reasonable factual and legal basis for finding such a violation, see City of Miami, 664 F.2d at 441, the exercise of such powers by way of a consent decree may be appropriate.
Id. at 832.
Id. at 1022 (Tjoflat, C.J., joined by Fay, Edmonson, Cox, and Hill, JJ., specially concurring). The section 2 framework, as he envisions it, would work in a manner analogous to the framework followed in Title VII cases. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If minority plaintiffs satisfy the Gingles threshold inquiry, a rebuttable presumption arises that the community is motivated by racial bias. See Solomon, 899 F.2d at 1035. If the defendant offers nothing in rebuttal, the minority plaintiffs win. However,
Id. (internal citations omitted) (emphasis added).
Even Judge Tjoflat recognizes the concept of racial bloc voting does not contain any racial animus requirement. He notes:
Id. at 1035 n. 12.
Id. The simple answer to this concern about limiting the reach of section 2 is that, unlike the minorities in this case, whites are not politically cohesive. Thus, contrary to the majority's assertions, white Democrats would be no more able to obtain relief under section 2 than would white Republicans.
478 U.S. at 100, 106 S.Ct. at 2792 (emphasis added). As noted previously, see supra note 3, I read this passage as saying that evidence of partisan voting patterns that overlay racial bloc voting patterns would not call into question the consistent defeat of minority-preferred candidates.
The point of this discussion is that many minorities residing in the target counties at issue in this case — especially those who are forty or older — attended segregated schools. This is precisely the age group from which one would expect state district court judges to be drawn. How one can say that this past discrimination does not hinder the current ability of blacks and Hispanics to participate in the political process involving the election of state district court judges escapes me.
Moreover, as I noted in my earlier opinion, the issue of whether blacks and Hispanics continue to suffer the effects of discrimination — effects that hinder their ability to participate in the political process — was not a contested issue at trial and has not been pursued by the parties on appeal. See LULAC III, 986 F.2d at 782-83 n. 41. The majority's decision to pursue this issue and reverse the district court's finding on clearly erroneous grounds is, thus, a further indication of its insistence on cleaning up — or cleaning out — section 2.
While there was evidence in Dallas County that two black Republican district court candidates were elected with the support of the white majority, there was also expert testimony, based on a telephone survey, that most voters in Dallas County had absolutely no idea of the race of the candidate for whom they were voting. At most, then, this evidence shows that white voters in Dallas County could not have been motivated by specific racial animus toward candidates. But this is only because of the so-called anonymity factor. There was also, admittedly, evidence suggesting that the Republican Party in Dallas County attempted to recruit minority candidates.
As for the other counties, however, there is little, if any evidence that white majorities would support Republican minority candidates in district court elections. This is because, as best I can tell from the record: (1) in Harris County, only one black Republican district court candidate won a contested district court election; (2) in Bexar County, only one Hispanic Republican won a contested district court election; and (3) in Tarrant County, only one black Republican won a contested district court election. This lack of Republican minority district court candidates also calls into question the majority's assertion that the Republican Party actively recruited minority candidates in other counties. There is very little evidence of any such recruitment in counties other than Dallas.
The majority asserts that the parties' failure to request a finding on the question of whether blacks and Hispanics in Harris and Tarrant counties is beside the point. It argues that the claim raised on appeal is that the district court improperly refused to consider elections involving Hispanic candidates, elections studied by the State of Texas' own expert. This latter question, the majority asserts, "is most assuredly before" this court. I disagree.
The State of Texas, in a reply brief to the original panel that heard this case in 1990, raised this issue for the first time on appeal. It asserted:
Thus, the defendants "raised" this issue by asking a rhetorical question in a reply brief. Even if there were nothing to prevent voting rights defendants from proving the existence of a de facto coalition between blacks and Hispanics in Harris and Tarrant counties, the problem with the argument is that the State of Texas simply did not seek to prove this fact in front of the district court and, with regard to Harris County, expressly requested a fact finding to the contrary.
(emphasis in original). Official-capacity lawsuits, because they are in essence lawsuits against the state, are generally barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at 3106 n. 14 ("Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, ... a State cannot be sued directly in its own name regardless of the relief sought.") (citing Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978)).
There is an exception to this rule. Specifically, "[i]n an injunctive or declaratory action grounded on federal law, the State's immunity can be overcome by naming state officials as defendants." Kentucky v. Graham, 473 U.S. at 169 n. 18, 105 S.Ct. at 3107 n. 18. As the Supreme Court itself has recognized, this exception is based purely upon a legal fiction. See, e.g., Pennsylvania v. Union Gas Co., 491 U.S. 1, 26, 109 S.Ct. 2273, 2287, 105 L.Ed.2d 1 (1989) (recognizing that Ex Parte Young established a "fiction"); Cory v. White, 457 U.S. 85, 95, 102 S.Ct. 2325, 2331, 72 L.Ed.2d 694 (1982) (referring to "fiction of Ex Parte Young"); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 105, 104 S.Ct. 900, 910, 79 L.Ed.2d 67 (1984) (same). Under this fiction, because state officers have no authority to violate federal law, their illegal acts, although qualifying as "state action," are not "acts of the state"; therefore suits to enjoin those acts or to declare them illegal are not precluded by the Eleventh Amendment. See Young, 209 U.S. at 159-60, 28 S.Ct. at 454. Thus, under the Young fiction, "official capacity actions for prospective relief are not treated as actions against the State" for purposes of the Eleventh Amendment. Kentucky v. Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at 3106 n. 14. But see also Diamond v. Charles, 476 U.S. 54, 57 n. 2, 106 S.Ct. 1697, 1701 n. 2, 90 L.Ed.2d 48 (1986) (noting, in context of suit against state officials for declaratory and injunctive relief, that "[a] suit against a state officer in his official capacity is, of course, a suit against the State").
H.J. OF TEX., 73d Leg., R.S. 479, 482 (1993) (Address of Chief Justice Thomas R. Phillips); see also id. at 481 ("One thing can be said with confidence about our current system of choosing judges: No one likes it.").
I also am aware that, under Texas law, "[a]n admission, agreement, or waiver made by the attorney general in an action or suit to which the state is a party does not prejudice the rights of the state." TEX.GOV'T CODE.ANN. § 402.004 (Vernon 1990). However, "the weight of authorities interpreting section 402.004 shows it to be a legislative limitation on the affirmative powers and discretion granted to the attorney general." Texas Dep't of Human Servs. v. Green, 855 S.W.2d 136 (Tex.App. — Austin 1993, n.w.h.). That is, the section has not been construed to limit the Attorney General's constitutional authority to propose, negotiate, and execute settlement agreements on behalf of the State of Texas — despite arguments to the contrary. See Terrazas, 829 S.W.2d at 728 n. 5, 733 n. 5 (concurring opinions of Justice Gonzalez and Cornyn); see also Executive Condominiums, Inc. v. State, 764 S.W.2d 899, 902 (Corpus Christi 1989, writ denied) (rejecting argument that section 402.004 prevented Attorney General from compromising and settling claims on behalf of the state).
Harris v. Amoco Production Co., 768 F.2d 669, 675 (5th Cir.1985) (emphasis added) (internal citations omitted), cert. denied, 475 U.S. 1011, 106 S.Ct. 1186, 89 L.Ed.2d 302 (1986); see also Kirkland v. New York State Dep't of Correctional Servs., 711 F.2d 1117, 1126 (2d Cir.1983) ("[T]he sum of rights possessed by an intervenor, even if granted unconditional intervention, is not necessarily equivalent to that of a party in a case and depends upon the nature of the intervenor's interest."), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984).
In her motion to intervene filed in the district court, Judge Wood asserted:
In support of her motion, Judge Wood cited Williams v. State Board of Elections, 696 F.Supp. 1563 (N.D.Ill.1988), a case dealing specifically with whether sitting elected judges should be joined as necessary parties in a section 2 case challenging judicial elections. At no point in her motion, or in her supporting memorandum, does Judge Wood assert that she is entitled or should be allowed to intervene as a voter. In fact, she does not allege that she is a registered voter of Harris County. Thus, unlike the majority, I cannot say that she was permitted to intervene as a registered voter.
In his motion to intervene, Judge Entz similarly focuses his arguments on why he should be allowed to intervene as a sitting elected judge of Dallas County. He also alleges that he is a resident of Dallas County and is duly qualified and registered to vote in the county. He then states, that "as such" he has an "interest in the fair administration of justice in Dallas County and the selection of a qualified judiciary." However, in his supporting memorandum, he never again mentions his status as a voter. Rather, like Judge Wood, he relies solely on the Williams case to support his motion to intervene. Therefore, I am unable to conclude that he was permitted to intervene to protect his interest — if, indeed, he has any such interest — in voting for all of the judges in Dallas County.
Assuming section 2 does not waive a state's Eleventh Amendment immunity, the Plaintiffs correctly named the Texas Attorney General and the Secretary of State in their official capacities. After all, both are responsible for enforcing the current method of electing district court judges. However, the members of the Texas Judicial Districts Board (including Chief Justice Phillips), have legislative responsibilities — responsibilities that arise only if the Texas legislature fails to act. See TEX. CONST. art. 5, § 7a(e). They have no enforcement responsibilities whatsoever. Thus, in my mind there is a question as to whether the Plaintiffs' action against the members of the Judicial Districts Board, including Chief Justice Phillips, are barred by the Eleventh Amendment.