United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 25, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-31065
WILLIAM H. PREJEAN; ET AL,
Plaintiffs,
HARRY J. CHAUVIN; EMILE POCHE; NED C. GOLDSTON;
DENNIS P. LOUVIERE; EUGENE J. SCHEXNAYDER,
Plaintiffs-Appellants,
versus
M. J. FOSTER, JR., Governor of the State of Louisiana;
RICHARD P. IEYOUB, Attorney General of the State of
Louisiana; W. FOX MCKEITHEN; JERRY M. FOWLER,
Commissioner of Elections of the State of Louisiana;
STATE OF LOUISIANA,
Defendants-Appellees,
and
JANICE G. CLARK; ORSCINI B. BEARD; EDDIE G.
CRAWFORD; VOTER INFORMATION PROJECT, INC.,
LOUIS SCOTT; SYLVIA COOKS; CONNIE SADLER;
LLOYD DANGERFIELD; TOM NELSON; ALBERT
RICHARD; BRENDA FORD; EDWARD LARVADAIN;
JOSIE FRANK; NORBERT C. RAYFORD,
Intervenor Defendants-Appellees.
----------------------------------
JOHN OREN, ET AL.,
Plaintiffs,
ROBERT J. HEATH,
Plaintiff-Appellant,
versus
M. J. FOSTER, JR., also known as Mike Foster, Governor
of the State of Louisiana, in his Official Capacities; RICHARD
IEYOUB, Attorney General of the State of Louisiana, in his
official capacity; W. FOX MCKEITHEN, Secretary of State
for the State of Louisiana, in his official capacity; JERRY M.
FOWLER, Commissioner of Elections for the State of
Louisiana, in his official capacities,
Defendants-Appellees.
Appeal from the United States District Court for
the Middle District of Louisiana
(USDC No. 96-CV-3418)
_______________________________________________________
Before REAVLEY, HIGGINBOTHAM and BENAVIDES, Circuit Judges.
PER CURIAM:*
The questioned legislation (Act 780) created a subdistrict with an
approximately 75 percent black population and its voters authorized to elect 1 of the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
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5 district judges. The other subdistrict is 80 percent white and its voters authorized
to elect 4 of the 5 judges. Plaintiffs challenged this act as violative of the Equal
Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and
Section 2(a) of the Voting Rights Act. A bench trial was conducted in which the
plaintiffs’ claims were dismissed.
Appellees have challenged the appellants’ standing insofar as some of the
plaintiffs may not have proved that they live in the majority black subdistrict. There
must be evidence in the record that at least one of the plaintiffs lives in the black
majority subdistrict. In cases with multiple plaintiffs, the presence of at least one
party with standing makes the case justiciable. Dep’t of Commerce v. U.S. House of
Representatives, 525 U.S. 316, 330 (1999). Thus, if any of the extant plaintiffs,
Emile Poche, Ned C. Goldston, Dennis P. Louviere, produced evidence of their
residence in sub-district 1, then the court may proceed to the merits. Bd. of Educ. of
Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 827 n.1 (2002). All three plaintiffs
testified at trial that they were only able to vote for Judge Turner in the 23rd Judicial
District Court elections which necessarily means that they lived in the relevant
subdistrict. See Tr. at I-28, I-36, II-22. The standing requirement has been satisfied.
This court reviews evidentiary rulings under an abuse of discretion standard.
See Green v. Adm’rs of Tulane Educ. Fund., 284 F.3d 642, 660 (5th Cir. 2002).
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This is a demanding standard which is met only when no reasonable person could
take the trial court’s adopted view. See Whitehead v. Food Max of Miss., Inc., 332
F.3d 796, 803 (5th Cir. 2003). Even if there is a showing of abuse of discretion, the
abuse is only reversible is the error affected a substantial right of the complaining
party. See Green, 284 F.3d at 660.
First, appellants object to the exclusion of the legislative history and pre-
clearance materials from a series of redistricting acts passed by the Louisiana
Legislature in the years before and after passage of Act 780. Appellants felt this
legislative history would provide evidence of the state’s racial preoccupation. The
district court excluded the evidence for failing to meet FED. R. EV. 401's relevancy
requirement.
When determining whether a facially neutral law is racially discriminatory
law, the court ought to consider the legislative history of that law. See Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977). The
history of a legislative decision helps the court adduce legislative motivation. Id.
Historical background of the “specific sequence of events leading up [to] the
challenged decision” may also prove instructive. Id. at 267. Here, the district court
clearly considered both the legislative history of Act 780 as well as background
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materials demonstrating the state’s concern with race. The court need not consider
every facet of the historical background from which the legislation emerges. While
Act 1069 was a precursor to Act 780, no election was ever held under its
subdistricting plan. This makes the legislative history surrounding Act 1069
substantially less instructive than the legislative history of Act 780 itself. Similarly,
Acts 838, 839, and 844 of 1989 and Act 145 of 1994 did not deal directly with the
subdistricting of the 23rd Judicial District Court (“JDC”) but instead with various
other subdistricts within the state. It was not unreasonable for the court to conclude
that the legislative history of these acts would not shed light on the state’s intent to
create a majority black subdistrict in the 23rd JDC. The excluded legislative history
could only provide tenuous inferences as to the state’s reasoning process in Act 780,
whereas the history to Act 780 and the correspondence with the Department of
Justice over the construction of the 23rd JDC itself provided much more direct
evidence of the state’s intent in this instance. There was no abuse of discretion.
Appellants also complain about the exclusion of evidence demonstrating the
adverse effects of racial subdistricting. This evidence includes testimony from
Representative Joseph Accardo, Judge Pitcher, and Judge Jones as well as the post
trial proffer of several news articles. The district court concluded that this evidence
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did not bear any relevance to any of the questions raised about the possible
violations of the Fourteenth Amendment, Fifteenth Amendment, or Section 2 of the
Voting Rights Act. Whether or not the practice of racial subdistricting is harmful
does not address whether or not there was a violation of an identified right or
statute. We find no abuse of discretion.
Race or traditional considerations in the state’s creation of the subdistrict
In determining whether a legislature’s districting plan violates the Equal
Protection guarantee of the Fourteenth Amendment, the appellants carry a
demanding burden to show that the legislature’s motive was predominantly racial,
not political. See Easley v. Cromartie, 532 U.S. 234, 241 (2001). In creating a
majority-minority district, such as the one in question here, the plaintiffs “must
show at a minimum, that the ‘legislature subordinated traditional race-neutral
districting principles . . . to racial considerations.” Id. (quoting Miller v. Johnson,
515 U.S. 900, 928 (1995) (O’Connor, J. concurring)). Race is a permissible factor
so long as it is not “the ‘predominant factor’ motivating the legislature’s districting
decision.” Id. (internal citations omitted) (emphasis in the original). Traditional
districting concerns include such factors as one person-one vote, the protection of
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political incumbents, compactness, and reflection of communities of interest. See
Chen v. City of Houston, 206 F.3d 502, 512 (5th Cir. 2000).
Legislatures, rather than courts, are institutionally better suited to make
districting decisions, so courts must “exercise extraordinary caution in adjudicating
claims that a State has drawn district lines on the basis of race.” See Easley, 532
U.S. at 242 (quoting Miller, 515 U.S. at 915 (emphasis added in Easley)). Courts
should be especially cautious when the legislature has proffered a legitimate
political explanation for the districting decision and the “voting population is one in
which race and political affiliation are highly correlated.” Id.
Ascertaining legislative intent is a fact question. Prejean v. Foster, 227 F.3d
504, 509 (5th Cir. 2000). Therefore, this court will review the district court’s
findings for clear error. See Easley, 532 U.S. at 242. This is a deferential standard
under which “a reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left
with the definite and firm conviction that a mistake has been committed.’” Id.
(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
Where evidence can be viewed to support different findings, the choice between the
views of the evidence is not a clear error. See Theriot v. Parish of Jefferson, 185
F.3d 477, 490 (5th Cir. 1999).
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We review the direct and indirect evidence of discrimination. Id. at 484. This
is necessary because
[e]vidence that blacks constitute even a supermajority
in one congressional district while amounting to less
than a plurality in a neighboring district will not, by
itself, suffice to prove that a jurisdiction was motivated
by race in drawing its district lines when the evidence
also shows a high correlation between race and party
preference.
Hunt v. Cromartie, 526 U.S. 541, 551-52 (1999). The plaintiffs submitted history
surrounding a prior settlement, the Section 5 preclearance submissions, racial
statistics that were submitted to the Department of Justice, and expert testimony
about the subversion of traditional districting principles. To counter this evidence,
the Defendants provided evidence from: Judge Alvin Turner who drew the
subdistricts; then Representative Joseph Accardo who supported Act 780 in the
legislature; and from Dr. Richard Engstrom, an expert in political redistricting.
The district court concluded that the construction of the 23rd JDC employed
traditional redistricting criteria, that race was not a predominant factor, and thus,
strict scrutiny was not triggered.
After reviewing the record, this court is satisfied that the Louisiana
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Legislature’s motivation in redistricting was not driven by race. The testimony of
Judge Alvin Taylor, who drafted the subdistricting plan, strongly suggests that he
was motivated by traditional districting concerns. While race may have been a
relevant factor, the trial court did not clearly err in its conclusion that Judge Turner
was most concerned with drawing the sub-district to include precincts that
supported him and to reflect the concerns of incumbent judges. Appellants suggest
that incumbency protection evolved into an issue of race because incumbent white
judges were able to maintain their judgeships in the majority white district. This
court sees no evidence suggesting Alvin Taylor drew the districts with the
motivation of protecting white judges per se. Rather, it so happened that all of the
incumbent judges were white and Taylor redrew the lines to protect them.
Protecting incumbent judges is a traditional and legitimate districting concern. Chen,
206 F.3d at 512. Turner’s testimony was bolstered by Representative Accardo who
was the lead representative supporting Act 780. He testified that he supported Act
780 for political reasons and that while race was a concern, it was not the
predominant factor. Both Accardo and Turner provided an alternate, credible
explanation for the subdivision of parishes and the lines drawn through Lutcher,
Donaldsonville, and Gonzales– Turner wanted to protect incumbents while
capturing areas that had provided strong support for him in the past. It is not for this
9
court to second-guess the trial court’s assessment of these witnesses’ credibility.
The defendants’ expert witness, Dr. Engstrom, also provided ample support for this
explanation. After looking at the subdistricts created by Act 780, Engstrom
concluded that while race and support for Turner were clearly intermingled,
Turner’s map was consistent with and showed concern for traditional districting
concerns. Both Accardo and Engstrom also countered the argument that the racial
data compiled and submitted to the DOJ in support of Section 5 preclearance
demonstrated that race was the motivating factor in the legislature’s districting
decisions.
While the legislative history behind Act 780 and the racial statistics
accompanying Louisiana’s Section 5 preclearance materials do provide some
evidence of race as a serious concern in the redistricting process, they are not so
persuasive as to overcome the strongly deferential review due both the legislature
and the trial court. Therefore, we uphold the trial court’s determination that race
was not a predominant factor in the creation of a black majority subdistrict under
Act 780. We need not decide whether the redistricting plan was in pursuit of a
compelling state interest and whether it was tailored to achieve that compelling
interest.
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Fifteenth Amendment and Section 2 of the Voting Rights Act
When race is the predominant factor in motivating the way in which the
subdistricts were drawn, there may be a denial of the right to vote under the
Fifteenth Amendment. See Prejean, 227 F.3d at 518-19. Gomillion v. Lightfoot held
that if redistricting was used as a device to disenfranchise Negro citizens from
voting in a municipal election while leaving all white voters in the same district, it
would show that the act in question “was not an ordinary geographic redistricting
measure even within familiar abuses of gerrymandering.” 364 U.S. 339, 341 (1960).
Yet no such disenfranchisement is present here, as we agree with the district court’s
assessment that the boundaries were drawn with traditional political concerns rather
than race predominating.
Similarly, we also agree with District Court’s assessment that there was no
violation of Section 2 of the Voting Rights Act. Section 2 of the Voting Rights Act
states that “[n]o voting qualification or prerequisite to voting or standard, practice or
procedure shall be imposed or applied by any State of political subdivision in a
manner which results in denial or abridgment of the right of any citizen of the United
States to vote on account of race or color . . . .” 42 U.S.C. § 1973(a) (2001). Yet
there is no evidence of vote dilution here. Since political decisions guided the
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districting process, there is no reason to believe the voting strength of any particular
racial group has been diluted.
AFFIRMED.
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