IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
Nos. 89-2868
89-6226
_____________________
RITA RANGEL, ET AL.,
Plaintiffs-Appellees,
v.
THE ATTORNEY GENERAL and
THE SECRETARY OF STATE OF
THE STATE OF TEXAS
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
( November 18, 1993 )
Before KING and JOLLY, Circuit Judges, and PARKER*, District
Judge.
KING, Circuit Judge:
This section 2 voting rights appeal raises one issue: Did
the district court clearly err in finding legally significant
white bloc voting in elections involving the Thirteenth Court of
Appeals for the State of Texas? For the reasons discussed below,
we conclude that the district court did commit clear error in
finding -- essentially on the basis of one election -- that
whites vote sufficiently as a bloc so as to usually defeat the
*
Chief District Judge of the Eastern District of Texas,
sitting by designation.
preferred candidate of Hispanics in Thirteenth Court elections.
Accordingly, we reverse the judgment of the district court.
I. Background
In 1988, two Hispanic registered voters ("Plaintiffs") filed
suit against various officials of Texas ("State Defendants").
They alleged that the manner in which Texas elects judges to the
Thirteenth Court of Appeals violates section 2 of the Voting
Rights Act of 1965, as amended, 42 U.S.C. § 1973. In particular,
the Plaintiffs contended that the current practice of electing
the six judges of the Thirteenth Court from an at-large election
district, which covers some twenty counties, impermissibly
dilutes the voting strength of Hispanics.
The section 2 liability issue was tried to the district
court in April 1989. Thereafter, on July 28, 1989, the district
court entered findings of fact and conclusions of law. The
district court first found that, in 1988, Hispanics comprised 46%
of the registered voters1 in the twenty-county area constituting
the Thirteenth Judicial District. The court went on to find that
the Plaintiffs had satisfied the three threshold requirements set
forth in Thornburg v. Gingles, 478 U.S. 30 (1986). Specifically,
the court found: (a) that four single-member districts could be
drawn in which Hispanics would constitute 63.7% of the total
1
In this case, the Plaintiffs and the State Defendants
introduced evidence relating to registered voters rather than
voting age population, thereby eliminating questions about the
statistics from the presence of non-citizens in the voting age
population.
2
population; (b) that Hispanics in the Thirteenth Judicial
District are politically cohesive; and (c) that there is legally
significant white bloc voting in the Thirteenth Judicial
District. The district court then analyzed the totality of the
circumstances or Zimmer factors -- specifically, the factors
listed in the Senate Report accompanying the 1982 amendments to
section 2, see S. Rep. No. 417, 97th Cong., 2d Sess. (1982),
reprinted in 1982 U.S.C.C.A.N. 177 (citing Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd per curiam sub
nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636
(1976)). It concluded that the following Zimmer factors weighed
in favor of a vote dilution finding: (a) the history of "some
discrimination in the 20-county area that touched the rights of
Hispanics to participate in the political process"; (b) the "high
degree of racial polarization within a majority of the counties
in the 20-county area"; (c) the unusually large size and
population of the Thirteenth Judicial District; and (d)
socioeconomic disparities between Hispanics and Anglos.
Based on these findings, the district court concluded that
the Plaintiffs had proven a section 2 violation. It specifically
held that "the at-large nature of the election system used to
elect judges to the Thirteenth Court of Appeals makes it more
difficult for Hispanics to elect representatives of their choice,
thus making the present process violative of law." The district
court gave the parties thirty days "to meet and negotiate on a
proposed remedy." The district court further instructed the
3
parties, in the event they could not reach an agreement
concerning the remedy, to separately submit their proposed
remedies to the court within forty-five days.
The State Defendants immediately filed a notice of appeal
challenging the district court's section 2 liability finding. In
an "abundance of caution," the State Defendants further requested
the district court to certify its liability determination
pursuant to 28 U.S.C. § 1292(b). The district court declined to
do so and instead entered a judgment adopting the Plaintiffs'
proposed remedy on November 3, 1989. In this judgment, the
district court ordered an "interim plan" to be implemented in
"all future elections." This plan calls for, among other things,
dividing the current Thirteenth Judicial District into six
single-member districts. The State Defendants also filed a
notice of appeal from this judgment, again indicating their
intent to contest the district court's liability determination.2
2
Initially, there was some question as to whether we had
jurisdiction to consider the State Defendants' first appeal from
the district court's liability determination, which was not
certified pursuant to 28 U.S.C. § 1292(b). We now conclude,
however, that the State Defendants' appeal from the district
court's judgment on November 3, which was for all practical
purposes a permanent injunction disposing of the entire
controversy, gives us jurisdiction to consider the district
court's earlier liability decision. See 9 MOORE'S FEDERAL PRACTICE ¶
110.20[1] (2d ed. 1993) ("Of course if an order granting a
permanent injunction disposes of the entire controversy, it is
appealable as a final decision under 28 U.S.C. § 1291.").
4
II. Analysis
The State Defendants argue that the district court's section
2 liability determination must be reversed. They argue
specifically that the district court clearly erred in finding --
on the basis of one election -- that whites vote sufficiently as
a bloc in the Thirteenth Judicial District so as usually to
defeat the Hispanic-preferred candidate. We agree.
A. The Legal Test for White Bloc Voting
To establish legally significant white bloc voting under the
Gingles threshold inquiry, minority plaintiffs "must be able to
demonstrate that the white majority votes sufficiently as a bloc
to enable it -- in the absence of special circumstances such as
the minority candidate running unopposed -- usually to defeat the
minority's preferred candidate." Gingles, 478 U.S. at 51
(emphasis added). Said another way, to prove legally significant
white bloc voting, minority plaintiffs must present evidence of
"a white bloc vote that normally will defeat the combined
strength of minority support plus white `crossover' votes." Id.
at 56. It is the "usual predictability of the majority's success
[that] distinguishes structural dilution from the mere loss of an
occasional election." Id. at 51.
The amount of white bloc voting that can generally cancel
out minority voting strength will, of course, "vary from district
to district according to a number of factors." Id. at 56. Among
the factors affecting this inquiry is the percentage of
registered voters in the district who are members of the minority
5
group. Id. Where, as in the Thirteenth Judicial District, the
minority group borders on constituting a majority of registered
voters, it will probably be more difficult to establish a white
bloc vote that will usually defeat the minority group's preferred
candidate. Conversely, if the minority group constitutes only a
small fraction of the total number of registered voters, it may
be, relatively speaking, easier for the members of that group to
establish their effective submergence in a white majority.
B. Standard of Review
Because a district court's finding of legally significant
white bloc voting is a question of fact, we review it for clear
error. See Gingles, 478 U.S. at 77-80; Westwego Citizens for
Better Gov't v. City of Westwego, 872 F.2d 1201, 1203 (5th Cir.
1989) ("Westwego I"); Campos v. City of Baytown, 840 F.2d 1240,
1243 (5th Cir. 1988), cert. denied, 492 U.S. 905 (1989). That
is, as long as the district court applies the appropriate legal
standards, we will not reverse its finding of legally significant
white bloc voting unless, based upon the entire record, we are
"left with the definite and firm conviction that a mistake has
been committed." Anderson v. City of Bessemer City, 470 U.S.
564, 573 (1985). If the district court's account of the evidence
is plausible in light of the record viewed in its entirety, we
will not reverse it -- even if convinced that had we been sitting
as trier of fact, we would have weighed the evidence differently.
Id. at 573-74.
6
C. The Relevant Elections
In this case, the district court found that there was
legally significant white bloc voting in judicial elections
involving the Thirteenth Court of Appeals by relying "heavily" on
the 1984 Democratic primary race for the Thirteenth Court between
Justice Horace Young ("Young") and Homer Salinas ("Salinas") --
the only race for that court pitting an Anglo candidate against a
Hispanic candidate. In that race, Salinas, who was clearly the
preferred candidate of Hispanic voters, was defeated by a margin
of 57% to 43%.3 Obviously, this race is highly probative. See,
e.g., Magnolia Bar Ass'n, Inc. v. Lee, 994 F.2d 1143, 1149 (5th
Cir. 1993) (recapitulating that "elections involving the
particular office at issue will be more relevant than elections
involving other offices").4
However, since the focus of the third Gingles factor is upon
the usual predictability of the majority's success, evidence of
one or two elections may not give a complete picture as to voting
patterns within the district generally. Thus, where, as here,
3
Up to the time of trial, only two Hispanics had been
elected to the Thirteenth Court, both in uncontested elections.
Justice Raul Gonzalez was appointed to serve on that court in
1981, and ran unopposed for the position in 1982, after which
time he was appointed to the Texas Supreme Court. Justice
Fortunato P. Benavides was appointed to fill his seat on the
Thirteenth Court, and he ran unopposed for the office in 1986 and
1988.
4
We have also noted that, "when statistical evidence is
used to establish legally significant white bloc voting, the most
probative elections are generally those in which a minority
candidate runs against a white candidate." Magnolia Bar Ass'n,
Inc. v. Lee, 994 F.2d 1143, 1149 (5th Cir. 1993).
7
there is evidence of only one election on all fours with the
challenged process, that evidence must be viewed together with
available evidence of other elections "that encompass more
geographic area than just [the election district at issue]:
e.g., . . . state-wide or national elections,"5 to determine
whether significant white bloc voting and the other Gingles
elements are met. See Citizens for a Better Gretna v. City of
Gretna, 834 F.2d 496, 502 & n.13 (5th Cir. 1987) (citing Gingles,
489 U.S at 57 n.25), cert. denied, 492 U.S. 905 (1989); Westwego
I, 872 F.2d at 120.
1. Exogenous Elections
Supplementing the evidence of the Young/Salinas race,
evidence was offered by both sides of the following exogenous
judicial elections pitting an Anglo candidate against a Hispanic
candidate in the Democratic primary6 from which the district
court could also find indications of racial voting patterns in
the twenty-county area:
5
Westwego Citizens for Better Gov't v. City of Westwego,
946 F.2d 1109, 1112 n.2 (5th Cir. 1991).
6
In fact, there had only been four contested elections of
any kind for the Thirteenth Court, all in the Democratic primary.
Along these lines, the parties have conceded that the Democratic
primary is the effective determinant of who will sit on the
Thirteenth Court. Indeed, in its brief on appeal, the State
Defendants note that "[t]hrough trial no one had ever sought the
Republican party nomination for a seat on the court; only
Democratic party nominees had been elected to the court in
general elections." Thus, no one has argued that, even if
Hispanic-preferred candidates are consistently defeated by a
white bloc vote, those defeats are more likely the result of
partisan affiliation than racial bias in the electorate. E.g.,
League of United Latin American Citizens, Council No. 4434 v.
Clements, 999 F.2d 831, 850 (5th Cir. 1993) (en banc).
8
(1) The 1984 Democratic primary for the Texas Court of
Criminal Appeals, in which George Martinez ("Martinez")
-- the Hispanic-preferred candidate -- garnered 38% of
the total vote and 11.3% of the Anglo vote in the
twenty-county area, making him the top vote-getter;
(2) The 1986 Democratic primary for the Texas Court of
Criminal Appeals, in which Martinez again received the
majority of total vote -- this time winning 47% of the
total vote and 16% of the Anglo vote in the twenty-
county area7;
(3) The 1986 Democratic primary runoff for the Texas Court
of Criminal Appeals, in which Martinez received 60% of
the total vote in the Thirteenth District area --
including 22% of the white crossover vote;
(4) The 1986 Democratic primary for the Texas Supreme
Court, in which Justice Raul Gonzalez ("Gonzalez") --
the Hispanic-preferred candidate -- was able to garner
60% of the total vote, including 28.7% of the Anglo
vote, in the twenty-county area8; and
(5) The 1986 Democratic primary runoff for the Texas
Supreme Court, in which Justice Gonzalez received 72%
7
The next most successful candidate only received 20% of
the total vote.
8
Justice Gonzalez' three Anglo opponents, by contrast,
received only 40% of the total vote in the same area.
9
of the votes in the twenty-county area, including 40%
of the Anglo vote, and defeated his Anglo opponent.9
The district court discounted these exogenous judicial races
in large part because they were "state-wide." However, the
exogenous character of the elections does not render them
nonprobative in a case where there is only one election on all
fours. The statistics showing the performance of these
candidates over the entire twenty-county area is, in our view,
quite indicative of district-wide voting patterns.
The trial court also considered the elections not to be
highly probative because it found the winning candidate to be
unique10 or because no evidence was introduced to determine the
9
Although, as noted above, the parties agree that the
determinative vote is in the Democratic primary, we note that
evidence of general election voting patterns may also be
probative as to voting dilution. For example, in Gingles, the
Supreme Court tacitly approved the district court's conclusion
that general elections could provide further evidence on the
third factor of the threshold test. Thornburg v. Gingles, 478
U.S. 30, 60 n.29 (1986). The district court in the Gingles case
had considered relevant the fact that, "although winning the
[Democratic] primary in [the relevant] district is historically
tantamount to election, 55% of whites declined to vote for the
Democratic black candidate in the general election." Id.
Conversely, in the instant case, the Hispanic-preferred candidate
in the Supreme Court general elections -- which are the only
general elections contained in the record -- continued to garner
the majority of votes. Specifically, Justice Gonzalez received
61% of the total district-wide vote in the 1984 general election
and won 68% of the vote in the 20-county area in 1988.
10
The district court appeared to believe that Justice
Gonzalez was "unique," and that his victory over an Anglo
opponent should therefore be discounted, because he was backed by
both Republicans and Democrats. While this may make Justice
Gonzalez unique, we fail to see why, as a general matter, it
makes his victory over his Anglo opponent nonprobative. Further,
the relevant evidence with respect to Justice Gonzalez' race was
the evidence of the voting pattern in the twenty-county area,
10
"home" area of the candidate. The court surmised that Gonzalez
was "hypothetically" successful in the twenty-county area for his
Supreme Court campaign because he was a native of the area.
Conversely, it observed that there was no evidence as to the
other candidate's home area. This "hypothetical" limitation upon
the evidence is flawed because it involves speculation about a
subjective factor affecting voter preference for which there is
no evidence in the record.
Finally, the district court discredited the evidence
involving Martinez' 1984 bid for the Court of Criminal Appeals
since it was "theoretically" possible (there being no evidence on
the subject) that he was not ultimately successful in the 1984
primary runoff. While that may be a basis for caution with
respect to Martinez' victory in the 1984 primary, it does not
undercut the fact that Martinez was clearly the top vote-getter
throughout the twenty-county area in the 1986 Democratic primary,
as well as in the 1986 run-off election. Moreover, the fact that
Martinez may not have been successful state-wide does not
militate against consideration of the overwhelmingly favorable
results of the primary elections specific to the Thirteenth
District.
In summary, the district court's reasons for disregarding
the success of Hispanic candidates in these exogenous elections
are largely conjecture, and its assumptions simply do not impeach
the significant evidence that minority judicial candidates have
which both parties concede to be heavily Democratic.
11
been successful in the Thirteenth District. The evidence of
these exogenous elections is demonstrative of voting patterns in
the entire twenty-county area at issue since the statistics are
district-wide and specific to the Thirteenth region. Moreover,
the elections were for judicial positions and thus most closely
resemble the elections at issue. The notable Hispanic success in
these exogenous elections cuts heavily against a finding of
legally significant white bloc voting. We find, therefore, that
it was error for the district court to disregard this body of
exogenous election evidence when it had only one indigenous
election from which to consider the third Gingles factor.
2. "Building Block" or "Mosaic" Elections
The court below also discounted evidence from elections
that took place in selected cities, counties, and independent
school districts within the twenty-county voting district --
which we refer to as "mosaic" or "building block" elections.11
We agree with the district court that these elections were of
negligible probative value in the instant case. At trial, the
Plaintiffs introduced evidence of city- and county-wide elections
and school district elections, as well as a host of "mosaic"
elections within Bee and San Patricio Counties, as evidence,
11
At oral argument, the Plaintiffs suggested that the
results from these elections provide support for the district
court's finding of legally significant white bloc voting.
Interestingly, however, Plaintiffs took a contradictory position
in their brief by criticizing what they characterized as the
State Defendants' argument that evidence of voting patterns in
districts smaller than the one at issue is not legally probative.
12
inter alia, of legally significant white bloc voting within the
entire twenty-county area challenged. The district court
assessed this mosaic evidence as "unimpressive." We concur with
the district court's view that this evidence "does little to
establish whether Anglos are able to defeat the minority's
preferred candidate" in the twenty-county area. See also
Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1558,
1560 (11th Cir. 1987) (Tuttle, J.) (rejecting evidence of city-
wide election contests as not probative of county-wide voting
practices), cert. denied, 485 U.S. 936 (1988); cf. Mississippi
State Chapter, Operation PUSH v. Mabus, 932 F.2d 400, 409-11 (5th
Cir. 1991) (evidence of insignificant voter registration
disparities within individual towns or counties did not impeach
evidence of pronounced disparity with respect to overall state
registration rates).
Although we express no opinion about use of a "building
block" or "mosaic" theory in general -- i.e., showing legally
significant white bloc voting by referring to elections from
areas smaller than the election district -- we agree with the
district court that the Plaintiffs in this case did not present
evidence from enough of the "blocks" within the twenty-county
area to be probative of voting patterns in the district as a
whole. Both parties agree that the demographics of the
Thirteenth Judicial District vary enormously between the
southern, Hispanic-concentrated counties and the northern, Anglo-
concentrated ones. Most of the building block evidence
13
introduced involved cities, independent school districts, or
counties (particularly Bee and San Patricio Counties) within the
twenty-county area making up the Thirteenth District, and, like
the district court, we are not able to conclude that this
evidence from a scattering of voting subsets is indicative of
county-wide voting -- or more particularly district-wide voting
-- as a whole.12
III. Conclusion
In conclusion, we do not find the district court's finding
of legally significant white bloc voting to be plausible in light
of the record viewed in its entirety. Although the district
court could reasonably give more weight to the 1984 Young/Salinas
Democratic primary race in assessing the white bloc voting
inquiry, this single race is not sufficient, in our view, to
support a determination that the white bloc vote will usually
defeat the preferred candidate of Hispanics in Thirteenth Court
elections. Given the limited number of Thirteenth Court
elections, the district court should not have discounted several
exogenous judicial elections in which the Hispanic (and Hispanic-
preferred) candidates won -- in one case with substantial support
from Anglo voters. See Gretna, 834 F.2d at 502 (recognizing that
12
Some of this "evidence" will not bear much weight since
it involves allegations of vote dilution or racial polarization
rather than judicial findings. Moreover, a significant part of
the evidence includes lawsuits involving issues, such as racial
discrimination, which are relevant to the Zimmer factors analysis
reached if a prima facie case of vote dilution is made, but are
not pertinent to the threshold white bloc voting inquiry.
14
exogenous elections become more relevant where the available data
is sparse). In light of these elections, the defeat of Salinas
in the 1984 Democratic primary looks much more like the loss of
an "occasional election" -- not like evidence of the "usual
predictability of the majority's success." See Gingles, 478 U.S.
at 51.
Our conclusion that the district court clearly erred in
finding legally significant white bloc voting is reinforced by
the fact that, at the time of trial, Hispanics constituted 46% of
the registered voters in the Thirteenth Judicial District. The
evidence at trial revealed that Hispanic voters could control
election outcomes with relatively little support from Anglo
voters. In the 1986 Democratic primary runoff between Martinez
and Duncan for the Texas Court of Criminal Appeals, Martinez
received only 22.4% of the Anglo vote, yet he won the support of
60% of the total vote. Even when Anglo crossover voting was at a
low of 13.8%, as it was in the 1984 Young/Salinas race, the
Hispanic-preferred candidate was able to garner 43% of the total
vote.
Accordingly, we hold that the district court clearly erred
in finding legally significant white bloc voting. The 1984
Young/Salinas race -- whether viewed standing alone or in
conjunction with the exogenous judicial races -- is simply
insufficient to show that the white bloc vote in the twenty-
county area usually defeats the preferred candidate of Hispanic
voters in elections involving the Thirteenth Court of Appeals.
15
In short, we are left with the definite and firm conviction that
the district court was mistaken in finding to the contrary.
Because the district court clearly erred in finding legally
significant white bloc voting in elections involving the
Thirteenth Court of Appeals, its ultimate finding of vote
dilution is also erroneous. See Overton v. City of Austin, 871
F.2d 529, 538 (5th Cir. 1989) (failure to establish any one of
the Gingles preconditions is fatal to a vote dilution claim).
The Plaintiffs did not meet their burden of establishing their
submergence in a white majority. The judgment of the district
court is therefore REVERSED and RENDERED in favor of the State
Defendants.
16