League of United Latin American Citizens, Council No. 4434 v. Clements

TABLE OF CONTENTS

I. Facts . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Motion to Remand . . . . . . . . . . . . . . . . . . . . 9
A. The Authority of the Texas Attorney General . . . . . 10
B. Other Motions . . . . . . . . . . . . . . . . . . . . 18
C. The Intervenors . . . . . . . . . . . . . . . . . . . 20
D. Consent Decrees . . . . . . . . . . . . . . . . . . . 24
E. Chisom v. Edwards . . . . . . . . . . . . . . . . . . 29
F. Federalism . . . . . . . . . . . . . . . . . . . . . 32

III. Racial Bloc Voting . . . . . . . . . . . . . . . . . . . 32
A. Whitcomb v. Chavis and White v. Register . . . . . . 38
B. The 1982 Amendments . . . . . . . . . . . . . . . . . 46
C. Thornburg v. Gingles . . . . . . . . . . . . . . . . 49
D. Partisan Politics . . . . . . . . . . . . . . . . . . 57
E. Two Objections . . . . . . . . . . . . . . . . . . . 64

IV. Other Legal Errors Affecting the Vote Dilution Inquiry . 71
A. Cohesiveness of Different Minority Groups . . . . . . 71
B. Relevance of Small Number of Minority Lawyers . . . . 75
C. Past Discrimination . . . . . . . . . . . . . . . . . 77

V. Texas' Linkage Interest . . . . . . . . . . . . . . . . 83
A. The Structure of Texas District Courts . . . . . . . 84
B. The Role of Function Under § 2 . . . . . . . . . . . 85
C. Weight of State's Interest is Matter of Law . . . . . 90
D. Determining the Weight of the Linkage Interest . . . 92
E. Other Means to Accommodate the Linkage Interest . . . 102
F. Balancing the State's Interest . . . . . . . . . . . 105

VI. Application of Law to Each County . . . . . . . . . . . 106
A. Dallas County . . . . . . . . . . . . . . . . . . . . 107
B. Harris County . . . . . . . . . . . . . . . . . . . . 115
C. Tarrant County . . . . . . . . . . . . . . . . . . . 125
D. Travis County . . . . . . . . . . . . . . . . . . . . 130
E. Bexar County . . . . . . . . . . . . . . . . . . . . 135
F. Jefferson County . . . . . . . . . . . . . . . . . . 138
G. Midland County . . . . . . . . . . . . . . . . . . . 141
H. Lubbock County . . . . . . . . . . . . . . . . . . . 143
I. Ector County . . . . . . . . . . . . . . . . . . . . 145

VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . 147
 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-8014

LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
COUNCIL NO. 4434,
Plaintiffs-Appellees,
and

JESSE OLIVER, ET AL.,
Intervening Plaintiffs-
Appellees,

versus

WILLIAM P. CLEMENTS, Etc.
Defendants,

JIM MATTOX, ET AL.,
Defendants-Appellees-
Appellants,

versus

JUDGE F. HAROLD ENTZ, Etc.,
JUDGE SHAROLYN WOOD, Etc., and
GEORGE S. BAYOUD, JR., Etc.,
Defendants-Appellants,

and

TOM RICKHOFF, SUSAN D. REED, JOHN J.
SPECIA, JR., SID L. HARLE, SHARON
MACRAE and MICHAEL P. PEDAN, Bexar
County, Texas State District Judges,
Appellants.

Appeal From the United States District Court
for the Western District of Texas

(August 23, 1993)

Before POLITZ, Chief Judge, KING, JOHNSON, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, and
DeMOSS, Circuit Judges.
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 makeup, 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.

I. Facts

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

2
Amendments in several Texas counties.1 They sued the Governor of

Texas,2 the Attorney General, the Secretary of State, and the Chief

Justice of the Supreme Court as chair of the Judicial Districts

Board. Because this board is responsible for reapportioning the

judicial districts, the suit also named each of its members as

defendants. On March 12, 1989, the district court granted the

motions to intervene of the Houston Lawyers' Association, the

Legislative Black Caucus, and two Texas district court judges, in

their individual capacities--Sharolyn Wood, 127th District Court in

Harris County, and Harold Entz, 194th District Court in Dallas

County.

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 court. Plaintiffs contend that electing trial

judges county-wide violates § 2 of the Voting Rights Act by

impermissibly diluting the voting power of Hispanics and blacks.

Plaintiffs proceed on behalf of language and ethnic minorities in

different combinations in different counties. Depending on the

1
Plaintiffs originally challenged the election of district
judges in 44 counties, but by trial, winnowed their targets to
the following nine urban counties: Harris County, Dallas County,
Travis County, Tarrant County, Jefferson County, Ector County,
Bexar County, Midland County, and Lubbock County.
2
Plaintiffs early in the case dismissed the Governor.

3
county--more specifically, the numbers--they argue that Hispanic

voters, black voters, or the combination of both Hispanic and black

voters "have less opportunity than other members of the electorate

to participate in the political process and elect representatives

of their choice." Plaintiffs aimed their constitutional challenge

at Article 5, § 7a(i) of the Texas Constitution, which precludes

the creation of judicial districts smaller than a county absent

approval by a majority of the voters in that county. They argued

that this limitation on the power to redistrict of the Judicial

Districts Board, chaired by defendant Chief Justice Phillips, was

enacted with discriminatory intent.

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.3 Intervenors Judge Wood and Judge Entz

appealed. Unhappy with nonpartisan elections ordered by the

district court, the Texas Attorney General first moved the court to

alter its interim plan. After the court denied the motion, the

3
This ruling was not appealed.

4
Attorney General filed a notice of appeal.4 We stayed the district

court's order pending appeal.

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

4
Former Secretary of State George S. Bayoud, Jr., a named
party defendant, objected to the Attorney General's decision not
to appeal immediately. Bayoud took the position that as chief
elections officer of the State of Texas, he was the Attorney
General's client and the Attorney General must represent his
interests. Bayoud obtained independent counsel and filed a
notice of appeal himself.

5
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 (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 and not remedy alone. The Court effectively came down

between the "goes only to remedy" view of the Department of Justice

and the "matter of law" view of the concurring opinion in LULAC II.

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

6
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

7
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

8
defense of the current system.5 Judge Wood has also moved to

disqualify the Texas Attorney General as counsel for the State.

When settlement negotiations began, Chief Justice Phillips obtained

independent counsel.6 General Morales responded by moving to

disqualify Phillips' counsel. Finally, immediately after oral

argument, plaintiffs filed a notice of nonsuit of Chief Justice

Phillips and the Texas Judicial Districts Board.

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

5
Judge Wood also filed a motion to strike the Attorney
General's Notice of Action Toward Settlement, which we denied
before oral argument.
6
We granted Chief Justice Phillips' motion requesting that
he be allocated time at oral argument.

9
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' anti-sodomy 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:

10
 [Hill] would be seriously prejudiced were he not allowed
to intervene, whereas allowing the appeal to proceed
would prejudice no one. As a state official empowered by
Texas law to enforce criminal laws, his interest and its
impairment by the district court's judgment cannot be
questioned. . . .
In this case where the district court has rejected
binding Supreme Court authority, the circuit court is
entitled to conclude as a matter of law that those
interests were inadequately represented by those who
failed to pursue the appeal and that the state officer
seeking to intervene was a proper party to do so.

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 may defend the suit is an a fortiori

case under Baker. After all, his judicial duties aside, the Chief

Justice's enforcement responsibilities under the redistricting

11
provisions of state law are statewide. A district attorney's

duties, however, run only to the county line. See Crane v. Texas,

766 F.2d 193 (5th Cir. 1985).

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

12
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.7

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

7
The dissent argues that Chief Justice Phillips was joined
solely as a jurisdictional party for Eleventh Amendment purposes.
Even if that were true, and it is not, see supra page 4, it would
not answer the real question: if the State of Texas is the real
party in interest, does the Attorney General possess exclusive
authority to choose whether the State's interests will be
asserted on appeal? In Baker, we answered in the negative.

13
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 714.8 Indeed a

majority believed the Attorney General's "discretion includes the

authority to propose a settlement agreement in an action attacking

the constitutionality of a reapportionment statute." Id. at 722

(Hecht, J.) (emphasis supplied).

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

8
Justice Gonzalez joined section II.A. of the plurality
opinion regarding the entry of redistricting relief.

14
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 policymaking 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):

We emphasize that when a statute confers a right upon the
attorney general to represent an agency, it imposes a
corollary duty, and the agency has every right to expect
the same diligent and faithful representation as any
other "client."

15
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, 262 S.W. 722, 729 (Tex. 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

16
of the attorney general to make admissions on its behalf." United

States v. Texas, 680 F.2d 356, 368 n.17 (5th Cir. 1982).9

9
Because the office of Attorney General is rooted in the
common law, many states, including Texas, refer to their Attorney
General's common law powers. E.g. Martinez v. State, 753 S.W.2d
165, 179 (Tex. App.--Beaumont 1988, writ ref'd). Thus, there is
some value to looking at how other states have dealt with the
issue we face today. In Tice v. Department of Transportation,
312 S.E.2d 241, 246 (N.C. Ct. App. 1984), the North Carolina
court held "that the Attorney General . . . is bound by the
traditional rule governing the attorney-client relationship, and
cannot enter a consent judgment without the consent of the entity
represented." In Georgia, the Attorney General may not "bind his
client by settlement for less than the full sum claimed, unless
express authority be given by the client." State v. Southwestern
R.R., 66 Ga. 403, 407 (1881). The North Dakota Attorney
General's power to represent state departments and officers

does not mean that the attorney general, standing in the
position of an attorney to a client, who happens to be an
officer of the government, steps into the shoes of such
client in wholly directing the defense and the legal steps
to be taken in opposition or contrary to the wishes and
demands of his client or the officer or department
concerned.

State ex rel. Amerland v. Hagan, 175 N.W. 372, 374 (N.D. 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,

The unique position of the Attorney General requires
that when his views differ from or he finds himself at odds
with an agency, then he must allow the assigned counsel or a
specially appointed counsel to represent the agency
unfettered and uninfluenced by the Attorney General's
personal opinion.

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, 530 P.2d 360 (Ariz. 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, 405 N.E.2d 1376,

17
 Stated another way, the Attorney General's right to represent

state officials or state agencies cannot be gainsaid, see Hill v.

Texas Water Quality Bd., 568 S.W.2d 738, 741 (Tex. Civ. App.--

Austin 1978, writ ref'd n.r.e.); Morris v. Smiley, 378 S.W.2d 149,

152 (Tex. Civ. App.--Austin 1964, writ ref'd n.r.e.), but he must

in fact represent them. He cannot ignore his clients and bind the

State against their wishes.10 This is not to say that the Chief

Justice is the sole arbiter. Both he and the Attorney General are

named parties to this suit, and each has the right to be heard in

this case. The Attorney General's authority does not allow him to

"close either the mouth of [Phillips] or the ears of the courts,

when there are complaints that the Attorney General or his

assistants are not in fact fulfilling their duty." Cofer, 754

S.W.2d at 125.

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

1380 (Ill. App. 1980).
10
Professor Fiss has recognized the problem raised by
Attorney General Morales' actions in this case. "We are left to
wonder, for example, whether the attorney general should be able
to bind all state officials, some of whom are elected and thus
have an independent mandate from the people, or even whether the
incumbent attorney general should be able to bind his
successors." Owen M. Fiss, Against Settlement, 93 Yale L.J.
1073, 1079 (1984).

18
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 measure. He is

entitled to take a position in settlement negotiations that is

different from his trial posture. However, if the Attorney General

changes his views on the merits of the case, realigning him with

the plaintiffs may be appropriate. Cf. Delchamps, Inc. v. Alabama

19
State Milk Control Bd., 324 F. Supp. 117, 118 (M.D. Ala. 1971)

(allowing Alabama Attorney General, who like the Texas Attorney

General took an oath to defend both state and federal law, to

realign himself with plaintiffs to challenge the federal

constitutionality of a state law). We also deny Judge Wood's

motion to disqualify General Morales as counsel for the State.

While we have rejected his claimed power to bind against their will

state officials he is charged to represent, he is nonetheless their

counsel.

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.11 They have intervened in

their personal capacities and have elected to obtain their own

counsel.12 As we earlier observed, the proposed consent decree

11
After trial, certain Bexar County district judges also
sought to intervene as defendants, and we have before us an
appeal from the denial of their motion. A motion to intervene
under Rule 24 must be timely. Fed.R.Civ.P. 24(a), (b); Jones v.
Caddo Parish School Bd., 735 F.2d 923, 926 (5th Cir. 1984) (en
banc). Although the district court did not expressly state that
their motion was untimely, it was well within the district
court's discretion to deny the motion on this ground.
12
Because we find that the judges' standing in their
individual capacities survives the settlement agreement, we are
not required to address the ability of Texas district court
judges to represent themselves in their official capacities. It
appears, however, that Texas law permits them to do so. Tex.
Gov't Code § 74.141, titled Defense of Judges provides:

The attorney general shall defend a state district judge, a
presiding judge of an administrative region, or an active,
retired, or former judge assigned under this chapter in any
action or suit in any court in which the judge is a
defendant because of his office as judge if the judge

20
would allow Judge Wood and Judge Entz to continue to run county-

wide. General Morales urges that they therefore lack standing to

either prosecute the suit or object to the proposed decree.

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.13 Even now, no one

questions the earlier uncontested standing of the intervenors; nor

could they. Wood and Entz intervened in part to protect their

tenure as elected judges. The district court found that they were

illegally elected.

Of course, these intervenors must satisfy Article III to

appeal on their own. Diamond v. Charles, 476 U.S. 54, 68 (1986);

Didrickson v. United States Department of the Interior, 982 F.2d

requests the attorney general's assistance in the defense of
the suit.

(emphasis added).
13
"Since an intervenor is bound by future orders, it may
appeal from an appealable order unless the intervention has been
specifically limited to forbid it." Matter of First Colonial
Corp., 544 F.2d 1291, 1298 (5th Cir. 1977). There is obviously
no such limitation on the intervenors' right to appeal in this
case.

21
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,

[plaintiffs] cannot privately determine its destiny"). Put another

way, the proposed settlement does not deprive this court of its

jurisdiction to hear the appeal independently perfected by Judges

Wood and Entz, an appeal from a decision that declared their

elections illegal.

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

[a]sserting interests both as a Texas voter and as a
sitting Texas district judge, Judge Sharolyn Wood moved
to intervene on the side of the defendant--the state.
The court allowed her to intervene in her personal
capacity, permitting Dallas County District Judge Harold
Entz to do so as well.

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

22
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

23
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 (1971); Baker v. Carr, 369 U.S.

186 (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).14

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 (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[5]). Courts must exercise equitable

discretion before accepting litigants' invitation to perform the

judicial act.

14
Our conclusion that Defendant-Intervenors continue to have
standing in their individual capacities to defend the current
method of electing trial judges makes it unnecessary for us to
consider their motion to modify their intervention to enable them
to do so.

24
 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 (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.).

Because the consent decree does not merely validate a
compromise but, by virtue of its injunctive provisions,
reaches into the future and has continuing effect, its
terms require more careful scrutiny. Even when it
affects only the parties, the court should, therefore,
examine it carefully to ascertain not only that it is a
fair settlement but also that it does not put the court's
sanction on and power behind a decree that violates
Constitution, statute, or jurisprudence. . . . If the
decree also affects third parties, the court must be
satisfied that the effect on them is neither unreasonable
nor proscribed.

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

25
continuing injunction." System Federation No. 91, Ry. Employees'

Dep't, AFL-CIO v. Wright, 364 U.S. 642, 651 (1961).15

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

15
In the same passage, Wright reminds us that "authority to
adopt a consent decree comes only from the statute which the
decree is intended to enforce." 364 U.S. at 651.

26
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 be realized in many ways, but is palpable where

sharply divided state officials would draw the federal courts into

a partisan political battle.

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

27
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, 113 S.Ct. 2816 (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

28
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, 111 S. Ct. 2354, 2358 (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:

The Joint Motion to Remand to Effectuate Settlement filed
by all parties is hereby granted; and this case is
remanded to the United States District Court for the
Eastern District of Louisiana for the limited purpose of
effectuating a settlement. Jurisdiction of the appeals
is hereby retained. Upon notification that a consent
judgment has been entered by the district court, the
appeals will be dismissed. We express no opinion, of
course, on the settlement or judgment.

Chisom, 970 F.2d at 1409 (emphasis added). As we have discussed,

the same is not true here.16

16
For the same reason, Supreme Court authority does not
require a remand. In Turnock v. Ragsdale, 493 U.S. 987 (1989),
the Court granted the parties' joint motion to defer further
proceedings for the parties to submit a proposed consent decree
to the district court. Unlike the case before us, the joint
motion in Turnock was a true joint motion; there were no
objections. See Ragsdale v. Turnock, 941 F.2d 501, 503 (7th Cir.
1991) (recounting procedural history). In spite of its label,
the Attorney General's motion is far from being a joint motion.

29
 Second, the parties in Chisom came to this court asking for

remand carrying a duly enacted state law with them. They did not

seek to invoke the preemptive force of the federal law. The decree

in Chisom was agreed to by all parties and adopted into law by the

state legislature. The consent decree did not set aside any state

laws--and not by accident. It was carefully crafted to that end.

In Louisiana, the legislature can create more supreme court

districts with a two-thirds vote from both houses. La. Const. Art

5, § 4.17 Article 5, § 3 of the Louisiana Constitution fixes the

number of supreme court justices at seven and establishes that each

shall serve a ten-year term.18 Because the state wished to create

the Orleans district without upsetting the terms of the sitting

justices, Louisiana had to temporarily expand the supreme court to

eight members.19

17
Art. 5, § 4 provides:

The state shall be divided into at least six supreme court
districts, and at least one judge shall be elected from
each. The districts and the number of judges assigned to
each on the effective date of this constitution are
retained, subject to change by law enacted by two-thirds of
the elected members of each house of the legislature.
18
Art. 5, § 3 provides:

The supreme court shall be composed of a chief justice and
six associate justices, four of whom must concur to render
judgment. The term of a supreme court judge shall be ten
years.
19
Louisiana's first effort to create an eighth position, and
thereby resolve the Chisom litigation, came in 1989 in the form
of a proposed constitutional amendment. However, the voters
rejected the proposal. See La. Const. Art. 5, §§ 4, 35,
Historical Notes.

30
 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.l (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

31
citizens of that county. Tex. Const. Art. 5, §§ 7, 7a(i).20 The

settlement agreement is not contingent on approval by the voters of

each county. The legislature has not proposed a constitutional

amendment. It has made no laws.

F. Federalism

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.

20
Art. 5, § 7 provides:

The state shall be divided into judicial districts,
with each district having one or more judges as may be
provided by law or by this Constitution. . . .

Art. 5, § 7a(i) provides:

The legislature, the Judicial Districts Board, or the
Legislative Redistricting Board may not redistrict the
judicial districts to provide for any judicial district
smaller in size than an entire county except as provided by
this section. Judicial districts smaller in size than the
entire county may be created subsequent to a general
election where a majority of the persons voting on the
proposition adopt the proposition "to allow the division of
County into judicial districts composed of parts of
County." No redistricting plan may be proposed or
adopted by the legislature, the Judicial Districts board, or
the Legislative Redistricting Board in anticipation of a
future action by the voters of any county.

32
 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."21 Congress intended "to

make clear that proof of discriminatory intent is not required to

establish a violation of Section 2" by "restor[ing] the legal

21
Section 2 reads in full:

(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied
by any State or political subdivision in a manner which
results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or
color, or in contravention of the guarantees set forth in
section 4(f)(2), as provided in subsection (b) of this
section.

(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.

33
standards" which prevailed in constitutional voting discrimination

cases prior to Mobile v. Bolden, 446 U.S. 55 (1980). S. Rep. 417

at 2, reprinted in 1982 U.S. Code Cong. & Admin. News at 206.

Specifically, the 1982 amendments "codify" the "results test"

articulated in White v. Regester, 412 U.S. 755 (1973). Id.

Section 2 claims brought against multimember schemes are

governed by the framework established in Thornburg v. Gingles, 478

U.S. 30 (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, 113 S.Ct. 1075, 1084 (1993); Gingles,

478 U.S. at 50-51. Satisfaction of these three "preconditions,"

Voinovich v. Quilter, 113 S.Ct. 1149, 1157 (1993), is necessary,

Gingles, 478 U.S. at 50, but not sufficient to establish liability

under § 2. Chisom v. Roemer, 111 S.Ct. 2354, 2365 (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

34
are guided in this second inquiry by the so-called Zimmer factors

listed in the Senate Report.22

22
The Senate Report indicates that "[t]ypical factors
include":

1. 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 democratic
process;

2. the extent to which voting in the elections of the state
or political subdivision is racially polarized;

3. the extent to which the state or political subdivision
has used unusually large election districts, majority vote
requirements, anti-single shot provisions, or other voting
practices or procedures that may enhance the opportunity for
discrimination against the minority group;

4. if there is a candidate slating process, whether the
members of the minority group have been denied access to
that process;

5. the extent to which members of the minority group in the
state or political subdivision bear the effects of
discrimination in such areas as education, employment and
health, which hinder their ability to participate
effectively in the political process;

6. whether political campaigns have been characterized by
overt or subtle racial appeals;

7. the extent to which members of the minority group have
been elected to public office in the jurisdiction.

Additional factors that in some cases have had probative value as
part of plaintiffs' evidence to establish a violation are:

whether there is a significant lack of responsiveness
on the part of elected officials to the particularized
needs of the members of the minority group.

whether the policy underlying the state or political
subdivision's use of such voting qualification,
prerequisite to voting, or standard, practice or
procedure is tenuous.

35
 A central issue here, one that divided the panel and one over

which the parties vigorously disagree, concerns Gingles' white bloc

voting inquiry and the closely related Zimmer factor directing

courts to examine "the extent to which voting . . . is racially

polarized." S. Rep. 417 at 29, reprinted in 1982 U.S. Code Cong.

& Admin. News at 206. As the Court in Gingles held, the question

here is not whether white residents tend to vote as a bloc, but

whether such bloc voting is "legally significant." Gingles, 478

U.S. at 55; Salas v. Southwest Texas Jr. College Dist., 964 F.2d

1542, 1553 (5th Cir. 1992). In finding a violation of § 2 in each

of the nine challenged counties, the district court held that

plaintiffs need only demonstrate that whites and blacks generally

support different candidates to establish legally significant white

bloc voting. Because "it is the difference between choices made by

blacks and whites alone . . . that is the central inquiry of § 2,"

the court excluded evidence tending to prove that these divergent

voting patterns were attributable to factors other than race as

"irrelevant" and "legally [in]competent."

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

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
(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.

36
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 (1971), which established a clean divide

between actionable vote dilution and "political defeat at the

polls"; the 1982 amendments, enacted to restore a remedy in cases

"where a combination of public activity and private discrimination

have joined to make it virtually impossible for minorities to play

37
a meaningful role in the electoral process," 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) (emphasis added); and Thornburg v. Gingles, 478

U.S. 30 (1986), where a majority of the Justices rejected the very

test employed by the district court as a standard crafted to shield

political minorities from the vicissitudes of "interest-group

politics rather than a rule hedging against racial discrimination."

Id. at 83 (White, J., concurring); id. at 101 (O'Connor, J., joined

by Burger, C.J., Powell and Rehnquist, JJ., concurring). We must

correct these errors.

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 (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 (O'Connor, J.,

concurring).

38
 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 132,23 correlated closely with voting patterns in the

county. "Ghetto" residents "voted heavily Democratic," but since

the county's more affluent white majority consistently voted

Republican, black-preferred candidates were defeated in four of the

five elections between 1960 and 1968. Id. at 150. The Whitcomb

Court recognized that the at-large electoral scheme caused the

"voting power of ghetto residents [to be] 'cancelled out,'" id. at

153, but held that this result by itself did not provide grounds

for relief. Noting that blacks enjoyed full access to the

political process,24 the Court reasoned that "had the Democrats won

23
See also Chavis v. Whitcomb, 305 F. Supp. 1364, 1376-81
(S.D. Ind. 1969).
24
The Court stated:

We have discovered nothing in the record or in the
court's findings indicating that poor Negroes were not
allowed to register or vote, to choose the political
party they desired to support, to participate in its
affairs or to be equally represented on those occasions
when legislative candidates were chosen. Nor did the
evidence purport to show or the court find that
inhabitants of the ghetto were regularly excluded from
the slates of both major parties, thus denying them the
chance of occupying legislative seats.

Id. at 149-50.

39
all of the elections or even most of them, the ghetto would have no

justifiable complaints about representation." Id. at 152. For

this reason, the Court concluded that the "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." Id. at 153.

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:

[A]re poor Negroes of the ghetto any more under-
represented than poor ghetto whites who also voted
Democratic and lost, or any more discriminated against
than other interest groups or voters in Marion County
with allegiance to the Democratic Party, or, conversely,
any less represented than Republican areas or voters in
years of Republican defeat? We think not. The mere fact
that one interest group or another concerned with the
outcome of Marion County elections has found itself
outvoted and without legislative seats of its own
provides no basis for invoking constitutional remedies
where, as here, there is no indication that this segment
of the population is being denied access to the political
system.

Id. at 154-55. 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.

40
 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 (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, 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 (citing Whitcomb, 403

U.S. at 149-50). 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.

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. "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. 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. 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. at 769 (quoting Graves, 343 F. Supp. at 733).

Like black residents of Texas, Mexican-Americans "had long

42
'suffered from, and continue[d] to suffer from, the results and

effects of invidious discrimination and treatment in the field of

education, employment, economics, health, politics and others.'"

Id. at 768 (quoting Graves, 343 F. Supp. at 728)). In addition,

the district court determined that "cultural and language

barrier[s] . . . 'conjoined with the poll tax and the most

restrictive voter registration procedures in the nation have

operated to effectively deny Mexican-Americans access to the

political processes in Texas even longer than the Blacks were

formally denied access by the white primary.'" Id. (quoting

Graves, 343 F. Supp. at 731). The exclusionary effects of past and

present discrimination, the Court found, were palpably reflected in

low voting registration among Mexican-Americans, the election of

only five Bexar County Mexican-Americans to the Texas Legislature

since 1880, and the county delegation's unresponsiveness to the

community's interests. Id. at 768-69. Given that the district

court's findings flowed from "a blend of history and an intensely

local appraisal" of conditions in Bexar County, the Court was "not

inclined to overturn" its conclusion that the multimember district

"invidiously excluded Mexican-Americans from effective

participation in political life." Id. at 769. As we will explain,

this earlier time in Texas history and the elections at issue here

present stark contrasts. The record before us contains no evidence

that past or present discrimination has affected minorities'

political access in any way.

43
 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, 113 S.Ct. 2816, 2835 (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 (1980):

In Whitcomb v. Chavis, we again repeated and applied the
Fortson [effects] standard, but determined that the Negro
community's lack of success at the polls was the result
of partisan politics, not racial vote dilution. The
Court stressed that both the Democratic and Republican
Parties had nominated Negroes and several had been
elected. Negro candidates lost only when their entire
party slate went down to defeat. In addition, the Court
was impressed that there was no finding that officials
had been unresponsive to Negro concerns.

44
Id. at 109 (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. 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

they were the product of "partisan politics" or "racial vote

dilution," "political defeat" or "built-in bias." It is only upon

concluding that a minority group's failure to prevail at the polls,

that is, their failure to attract the support of white voters, was

the "result" or "function" of "racial vote dilution" or "built-in

bias," that a court may find that minority plaintiffs have suffered

"a denial or abridgement of the right . . . to vote on account of

race or color." In sum, Whitcomb unmistakably prescribes the very

inquiry into the causes underlying the lack of support for

minority-preferred candidates among white voters with which the

district court dispensed.

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

45
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

46
defined in large part by the wrongs they prohibit. See, e.g., City

of Rome v. United States, 446 U.S. 156, 206 (1980) (Rehnquist, J.,

dissenting); Oregon v. Mitchell, 400 U.S. 112, 152 (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:

The evidence showed that the ghetto area voted
Democratic, that the Republicans won four of the five
elections from 1960 to 1968, and that in 1964, when the
Democrats won, ghetto area senators and representatives
were elected. Nine blacks had in fact been elected to
the legislature from the at-large districts between
[1960] and 1968.

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

47
adopted Whitcomb's central teaching in presenting what it

understood to be the kernel of the decision:

The 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. The voting power of ghetto residents may have
been "cancelled out," as the district court held, but
this seems a mere euphemism for political defeat at the
polls.

Id. at 21 (quoting Whitcomb, 403 U.S. at 153), 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

48
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 (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,

49
56.25 With respect to the third element, however, five justices

rejected Justice Brennan's proposed standard for proving racial

bloc voting. Id. at 83 (White, J., concurring); id. at 100-01

(O'Connor, J., joined by Burger, C.J., Powell and Rehnquist, JJ.,

concurring). For this reason, we believe that it is to these

opinions, not Justice Brennan's, that we should look in attempting

to define the contours of the inquiry into legally significant bloc

voting.

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 the principal cause is race." Gingles, 478 U.S. at 61.

Instead, he asserted that "[i]t is the difference between the

choices made by blacks and whites--not the reasons for that

difference--that [matters]." Id. A consideration of "irrelevant

variables" such as partisan affiliation or the race of the

candidate, Justice Brennan urged, would "distort[] the equation and

25
In order to make out a § 2 vote dilution claim under
Gingles, minority plaintiffs challenging an at-large system must
prove 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. Gingles, 478 U.S.
at 50-51.

50
yield[] results that are indisputably incorrect under § 2 and the

Senate Report." Id. at 64.

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

(White, J., concurring); id. at 100-01 (O'Connor, J., joined by

Burger, C.J., Powell and Rehnquist, JJ., concurring). Justice

White argued that

Justice Brennan states in Part III-C that the crucial
factor in identifying polarized voting is the race of the
voter and that the race of the candidate is irrelevant.
Under this test, there is polarized voting if the
majority of white voters vote for different candidates
than the majority of the blacks, regardless of the race
of the candidates. I do not agree. Suppose an eight-
member multimember district that is 60% white and 40%
black, the blacks being geographically located so that
two safe black single-member districts could be drawn.
Suppose further that there are six white and two black
Democrats running against six white and two black
Republicans. Under Justice Brennan's test, there would
be polarized voting and a likely § 2 violation if all the
Republicans, including the two blacks, are elected, and
80% of the blacks in the predominately black areas vote
Democratic . . . . This is interest-group politics
rather than a rule hedging against racial discrimination.
I doubt that this is what Congress had in mind in
amending § 2 as it did, and it seems quite at odds with
the discussion in Whitcomb v. Chavis, 403 U.S. 124, 149-
160 (1971).

Id. at 83 (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

51
 evidence that the divergent racial voting patterns may be
explained in part by causes other than race, such as an
underlying divergence in the interests of minority and
white voters . . . . can never affect the overall vote
dilution inquiry. Evidence that a candidate preferred by
the minority group in a particular election was rejected
by white voters for reasons other than those which made
that candidate the preferred choice of the minority group
would seem clearly relevant in answering the question
whether bloc voting by white voters will consistently
defeat minority candidates. Such evidence would suggest
that another candidate, equally preferred by the minority
group, might be able to attract greater white support in
future elections.

I believe 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. In a community that is polarized along racial
lines, racial hostility may bar these and other indirect
avenues of political influence to a much greater extent
than in a community where racial animosity is absent
although the interests of racial groups diverge. Indeed,
the Senate Report clearly stated that one factor that
could have probative value in § 2 cases was "whether
there is a significant lack of responsiveness on the part
of elected officials to the particularized needs of the
members of the minority group." S. Rep., at 29. The
overall vote dilution inquiry neither requires nor
permits an arbitrary rule against consideration of all
evidence concerning voting preferences other than
statistical evidence of racial voting patterns. Such a
rule would give no effect whatever to the Senate Report's
repeated emphasis on "intensive racial politics," on
"racial political considerations," and on whether "racial
politics . . . dominate the electoral process" as one
aspect of the "racial bloc voting" that Congress deemed
relevant to showing a § 2 violation. Id., at 33-34.
Similarly, I agree with Justice White that Justice
Brennan's conclusion that the race of the candidate is
always irrelevant in identifying racially polarized
voting conflicts with Whitcomb and is not necessary to
the disposition of this case. Ante, at 83 (concurring).

Id. at 100-01 (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

52
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

53
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. 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 (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

(quoting White, 412 U.S. at 765) (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

54
circumstances, it also 'allows those elected to ignore [minority]

interests without fear of political consequences.'" Id. at 48 n.14

(quoting Rogers v. Lodge, 458 U.S. 613, 623 (1982) (alterations in

original)). The close tie between bloc voting and representatives'

responsiveness noted by the Court in Rogers and confirmed by

Justice Brennan rests on common sense: Public officials need not

address concerns expressed by minorities so long as white bloc

voting ensures that they will remain minority concerns. The Court

in Rogers and Justice Brennan, however, differed sharply over the

sort of polarized voting that might provide elected officials with

such assurances and federal courts with grounds to intervene. The

Court in Rogers held that this close identification was warranted

only where racial political considerations were present, that is,

where white bloc voting caused "minority candidates [to] lose

elections solely because of their race." Rogers, 458 U.S. at 623

(emphasis added). Justice Brennan's approach, by contrast, assumes

that political leaders may safely ignore minority concerns even

where black and white voters are separated only by differing

interests. Put another way, Justice Brennan's bloc voting test

accords governing majorities linked only by the perception of

common interests the same permanence and thus relevance under § 2

as white blocs cemented by racial prejudice.

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

55
been unsuccessful in their efforts to elect their preferred

representatives. Gingles, 478 U.S. at 100-101 (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

(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

56
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.26

26
The dissent contends that we have departed from
controlling Supreme Court precedent in requiring plaintiffs to
show more than divergent voting patterns among white and minority
voters in order to establish legally significant bloc voting.
The dissent properly points out that a majority of the Court in
Gingles held that racial bloc voting rests on proof 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. As the Court's recent unanimous decision in
Voinovich v. Quilter, 113 S. Ct. 1149, 1157 (1993), indicates,
this standard is hardly controversial. The Justices in Gingles,
however, were sharply divided on the crucial, separate issue of
the sort of showing necessary to establish "legally significant"
bloc voting--that is, the conditions that enable courts to
predict that a majority bloc will consistently "defeat the
minority's preferred candidate." The dissent correctly concludes
that the approach taken by Justice White and Justice O'Connor,
rather than that offered by Justice Brennan, should govern this
second inquiry. Thus, we are in full agreement with the dissent
that the possible causes of polarized voting must be examined
because "they call into question the consistency with which the
white bloc will oppose minority-preferred candidates." Dissent
at ___.
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, presupposes
partisan voting." Dissent at ___. 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.

57
 Given that the divergent voting patterns in this case are in

most instances attributable to partisan affiliation rather than

race, it is thus far from coincidental that the district court

found no evidence of unresponsiveness on the part of elected

officials in any of the contested counties. The irony, of course,

is that the subdistricting remedy sought by plaintiffs provides

most judges with the same opportunity to ignore minority voters'

interests without fear of political reprisal they would possess if

elections were in fact dominated by racial bloc voting.

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 (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

58
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

(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, or the

"result" of "partisan politics." Bolden, 446 U.S. at 100 (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

59
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

candidates were actually attributable to causes other than race.

This result it is urged, might unfairly tip the scales in favor of

liability.

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

60
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 § 2.27 Having said this, we need not resolve the debate today.

Whether or not the burden of the plaintiffs to prove bloc voting

includes the burden to explain partisan influence, the result is

the same. This is so even if the partisan voting is viewed as a

defensive parry.

27
The facts of this case do not require us to determine
whether defendants may attempt to prove that losses by minority-
preferred candidates are attributable to non-racial causes other
than partisan affiliation. We express no opinion on this
entirely separate question.

61
 Finally, we recognize that even partisan affiliation may serve

as 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), 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

62
cases where racially divergent voting patterns correspond with

partisan affiliation as "political defeats" not cognizable under

§ 2.

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

63
from white Democrats is not readily apparent. See Whitcomb, 403

U.S. at 153.

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.28

E. Two Objections

The Houston Lawyers' Association and amicus the United States

raise two particular objections that merit additional

28
Defendant Judge Entz has contended throughout this
litigation that § 2, as amended, is unconstitutional. In view of
our construction of the statute, we need not reach this question.

64
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 (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.

The Association does not seriously contend that the

legislative history accompanying the amendments to § 2 lends direct

support for its position. The Senate Report quite unambiguously

declares that Congress intended to "make clear that plaintiffs need

not prove a discriminatory purpose in the adoption or maintenance

of the challenged practice or system in order to establish a

violation." S. Rep. 417 at 27 (emphasis added), reprinted in 1982

65
U.S. Code Cong. & Admin News at 205. Moreover, far from suggesting

that the presence of racial animus in the electorate was

irrelevant, supporters of the 1982 legislation maintained that the

amendments were necessary precisely in order to reach such "private

discrimination." 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). The Association instead insists that a standard requiring

§ 2 plaintiffs to show that their failure to elect representatives

of their choice is attributable to white bloc voting rooted in

racial considerations "frustrate[s] the goals Congress sought to

achieve by repudiating the intent test of [Bolden]." Gingles, 478

U.S. at 71 (opinion of Brennan, J.). Given the palpable tension

between "the goals Congress sought to achieve" and those it

actually expressed, it is hardly surprising that the principles the

Association purports to locate in the Senate Report bear only a

passing resemblance to those offered by Congress. Compare Gingles,

478 U.S. at 70-73 (opinion of Brennan, J.) with S. Rep. 417 at 36-

37, reprinted in 1982 U.S. Code Cong. & Admin News at 214-15.

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 (Marshall, J., dissenting), the

66
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), 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, 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

67
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 non-racial cause

expressly cited in her opinion as a possible explanation of

divergent voting patterns. See Gingles, 478 U.S. at 100 (O'Connor,

J., concurring).

The United States argues that the political differences

frequently observed among white and minority voters are largely the

product of disparities in socioeconomic status, which are

themselves attributable to the presence or absence of past

discrimination. In this view, a standard that would permit

divergence in interest to preclude the establishment of racial bloc

voting "would render meaningless the Senate Report factor that

addresses the impact of low socioeconomic status on a minority

group's level of participation." Gingles, 478 U.S. at 69.

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

68
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." 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

69
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.

70
 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. Judges and commentators alike have questioned whether

transitory unions rooted in political expedience may be properly

equated with those whose source lies in the more enduring bonds

supplied by a shared race or ethnicity. League of United Latin

American Citizens v. Midland Indep. School District, 812 F.2d 1494,

71
1505-07 (5th Cir. 1987) (Higginbotham, J., dissenting); Katherine

I. Butler & 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 Pacific L.J. 619, 641-57

(1990). Nevertheless, we have treated the issue as a question of

fact, allowing aggregation of different minority groups where the

evidence suggests that they are politically cohesive, see, e.g.,

Midland I.S.D., 812 F.2d at 1500-02, and we need not revisit this

question here.

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

72
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

73
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 court's findings of cohesion in Midland,

Ector, and Lubbock Counties, because in those counties a

significant number of blacks and Hispanics usually voted for the

same candidates. Gingles, 478 U.S. at 56. But this standard also

compels the conclusion that there is also black-Hispanic cohesion

in Harris and Tarrant Counties. The district court thus clearly

erred in ignoring elections involving Hispanic and white candidates

in these counties.29

29
The dissent points out that defendants did not ask the
trial court to make a specific finding that black and Hispanic
voters were politically cohesive in Harris and Tarrant Counties.
This observation, while correct, is beside the point, for that is
not the claim they raise on appeal. Rather, defendants argue
that the district court improperly refused to consider elections
involving Hispanic candidates studied by Dr. Taebel, their
expert. This question is most assuredly before us and, given the
overwhelming evidence of cohesiveness among black and Hispanic

74
 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

voters in Harris and Tarrant Counties, is susceptible to only one
answer.

75
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)

In counties with no minority judges, the number of eligible

candidates was very small. In Ector County, for example, one

survey found five eligible Hispanic lawyers and only one eligible

black lawyer. Apparently none of Lubbock County's 499 lawyers in

76
1989 was a black attorney eligible for a district judgeship,

although the State Bar reported two black lawyers in the county.

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 (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."30 The district court, however, did

30
Two separate Zimmer factors guided the court's inquiry:

1. 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 democratic
process;

. . . . . . . . . .

5. the extent to which members of the minority group in

77
not refer to specific facts in the record to support this

conclusion. Instead, the court cited a 1980 Civil Rights

Commission Report describing civil rights developments in Texas

during the years 1968-1978 and a 1981 district court opinion

detailing race relations between minority and white residents of

one of Texas' smaller cities during the 1960's and 1970's.

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

the state or political subdivision bear the effects of
discrimination in such areas as education, employment
and health, which hinder their ability to participate
effectively in the political process;

S. Rep. 417 at 28-29, reprinted in 1982 U.S. Code Cong. & Admin.
News at 206.

78
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:

The courts have recognized that disproportionate
educational, employment, income level and living
conditions arising from past discrimination tend to
depress minority political participation. Where these
conditions are shown, and where the level of black
participation in politics is depressed, plaintiffs need
not prove any further causal nexus between their
disparate socio-economic status and the depressed level
of political participation.

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

79
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:

Well, certainly having less of these socioeconomic
resources or characteristics to draw on, we find that
minority voters will participate less in the electoral
system. Education is an important resource. For
example, it enables people to feel like they are more a
part of and take part in the election system to a greater
extent. Lacking that they participate less. So it is
important, it has an effect certainly on their
participation when they are subordinate status in the
stratification system.

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,

80
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, 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

case. The evidence presented at trial simply does not show that

81
past discrimination has inhibited the ability of minorities to

participate in the process. In fact, the record discloses that

minority-preferred candidates frequently raised and spent more

money that their white opponents.

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

82
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

83
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 sums 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.31

Many counties in Texas have more than one district judge. Even so,

trials are presided over by district judges acting alone. The only

collegial decision-making by district judges in counties with more

than one district judge is in the handling of some administrative

matters. In some of the counties involved here, district courts

are designated to specialize in civil, criminal, or family law

cases.

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

31
One exception is the 72nd District, which encompasses both
Lubbock and Crosby Counties.

84
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 (1991), the Supreme Court agreed that the

interests behind the existing court structure must be considered.

[W]e believe that the State's interest in maintaining an
electoral system--in this case, Texas' interest in

85
 maintaining the link between a district judge's
jurisdiction and the area of residency of his or her
voters--is a legitimate factor to be considered by courts
among the "totality of circumstances" in determining
whether a § 2 violation has occurred. A State's
justification for its electoral system is a proper factor
for the courts to assess in a racial vote dilution
inquiry . . . . Because the State's interest in
maintaining an at-large, district-wide electoral scheme
for single-member offices is merely one factor to be
considered in evaluating the "totality of circumstances,"
that interest does not automatically, and in every case,
outweigh proof of racial vote dilution.

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.

86
"[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 not precluded, it must take into account the state

interests that are furthered by the structure and function of such

single-member offices. Surely by enacting the Voting Rights Act,

Congress did not contemplate that the office of mayor in a city

would have to be dismantled because its single-member office nature

submerged minority voters in the community of voters as a whole,

without regard for the interests in preserving that office. Cf.

Butts v. City of New York, 779 F.2d 141 (2d Cir. 1985) (holding

that primary runoffs for single-member offices of mayor, city

council president, and city comptroller do not violate § 2).

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:

87
 the Court recognized that in balancing the many factors
in the totality of the circumstances test, the state
interest in district wide judicial elections may, in some
cases, outweigh proof of racial voter dilution.

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.

88
 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

89
n.117, reprinted in 1982 U.S. Code Cong. & Admin. News at 207

n.117.

Proof of a merely non-tenuous state interest discounts one

Zimmer factor, but cannot defeat liability. It does not follow,

however, that proof of a substantial state interest cannot defeat

liability. The totality of circumstances inquiry that occurs after

a showing of the Gingles prerequisites is not limited to factors

listed in the legislative history of the Voting Rights Act.

Gingles, 478 U.S. at 45, 106 S. Ct. at 2763; Westwego Citizens for

Better Gov't v. City of Westwego, 946 F.2d 1109, 1120 (5th Cir.

1991) (Westwego III). The weight, as well as tenuousness, of the

state's interest is a legitimate factor in analyzing the totality

of circumstances. As we have explained, the Voting Rights Act

largely codifies Fourteenth Amendment jurisprudence embodied in

White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L. Ed. 2d 314

(1973). See Jones, 727 F.2d at 379-80. The substantiality of the

state's interest has long been the centerpiece of the inquiry into

the interpretation of the Civil War Amendments and their interplay

with the civil rights statutes.

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

90
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.32 This question can turn on credibility, an issue

best determined by a fact finder. The issue of substantiality,

however, is distinct from the conventional Zimmer factor of

tenuousness and is a legal determination.

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

32
We do not decide this issue. Some appellate court
decisions appear to have reviewed the tenuousness of state
interests without deference to the underlying district court
determinations. See, e.g., Zimmer, 485 F.2d at 1307.

91
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 (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

Discrimination in Employment Act does not apply to judicial offices

in Missouri. The plaintiffs had used ADEA to challenge a mandatory

retirement age for state judges. The Court noted that "the

authority of the people of the States to determine the

qualifications of their most important government officials . . .

lies at the heart of representative government." Id. at , 111

S. Ct. at 2402 (internal quotation omitted). Gregory noted that

"the States' power to define the qualifications of their office-

holders has force even as against the proscriptions of the

92
Fourteenth Amendment." Id. at , 111 S. Ct. at 2405. To protect

this power to define the judicial office, Gregory required a clear

statement from Congress for an override of qualifications imposed

by the State for important state government office. Id. at ,

111 S. Ct. at 2406. This requirement exists even if ADEA was based

upon Congress' powers under the Fourteenth Amendment, rather than

the Commerce Clause. Id. at , 111 S. Ct. at 2405.

"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

93
trial court judges, including Texas, Alabama, and Florida, twenty-

five employ district-wide elections.33 The overwhelming

preservation of linkage in states that elect their trial court

judges demonstrates that district-wide elections are integral to

the judicial office and not simply another electoral alternative.

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

33
The twenty-five are Alabama, Arizona, California, Florida,
Georgia, Idaho, Indiana, Kentucky, Michigan, Minnesota, Montana,
Nevada, New Mexico, New York, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Washington,
West Virginia, and Wisconsin. Among these states, some appoint a
portion of their trial judges, while others hold retention
elections after initial selection by contested election. See
generally 28 The Council of State Governments, The Book of the
States 210-12 (1990) (table 4.4).
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).

94
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.

Minority voters would be marginalized, having virtually no impact

on most district court elections. Given that district judges act

alone in exercising their power, that use of the Voting Rights Act

is perverse. After subdistricting, a handful of judges would be

elected from subdistricts with a majority of minority voters.

Creating "safe" districts would leave all but a few subdistricts

stripped of nearly all minority members. The great majority of

judges would be elected entirely by white voters. Minority

litigants would not necessarily have their cases assigned to one of

the few judges elected by minority voters. Rather, the

overwhelming probability would be that the minority litigant would

appear "before a judge who has little direct political interest in

being responsive to minority concerns." LULAC II, 914 F.2d at 650

(Higginbotham, J., concurring). Under the totality of

circumstances, we must recognize that breaking the link between the

electoral base and the jurisdiction of this single-member office

would perversely lessen minority influence on the conduct of most

litigation.

The distrust of judicial subdistricts does not rest on

paternalism. It recognizes Texas' historic interest in having

95
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

96
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 these considerations, we find that

it serves the substantial interests we described.

97
 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.34 The localized focus of district

courts is particularly evident in criminal matters, where venue is

based on events related to the offense. Tex. Code Crim. Proc. Ann.

ch. 13 (Vernon 1977). Domicile and hence convenience to the

34
Texas venue law, as amended in 1983, has been influenced
by both Spanish and English principles. Besides protecting civil
defendants from inconvenient forums, the rules strive to ensure
that local matters are tried in local courts. See generally
Joseph W. McKnight, The Spanish Influence on the Texas Law of
Civil Procedure, 38 Texas L. Rev. 24, 36-40 (1959); Charles T.
Frazier, Jr., Note, Venue Procedure in Texas: An Analysis of the
1983 Amendments to the Rules of Civil Procedure Governing Venue
Practice Under the New Venue Statute, 36 Baylor L. Rev. 241, 241-
44 (1984).

98
defendant have never been a consideration. Since the propriety of

venue goes to the authority of the court, it is "quasi-

jurisdictional in nature." George E. Dix, Texas Charging

Instrument Law: The 1985 Revisions and the Continuing Need for

Reform, 38 Baylor L. Rev. 1, 71 (1986). Thus, Texas law commonly

refers to the district court's venue reach as its jurisdiction in

criminal matters. See, e.g., Hodge v. State, 527 S.W.2d 289, 292

(Tex. Crim. App. 1975); Tex. Code Crim. Proc. Ann. Arts. 21.02(5),

21.21(5) (Vernon 1989).

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

99
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).35

A typical occasion for such assignments is when the district judge

is vacationing or ill. Plaintiffs have not demonstrated that this

measure of expedience represents an abandonment of the interests

behind linkage. To the contrary, insofar as linkage involves the

appearance of judicial fairness and independence, visiting judges

are not inconsistent with its purposes. Because visiting judges

will not stand for reelection, they do not create the impression of

bias that may accompany a judge elected from a narrow constituency.

Another challenge to the legitimacy of the linkage interest is

based upon Article 5, § 7a of the Texas Constitution. Plaintiffs

reason that Texas abandoned its linkage interest by allowing the

residents of counties to "opt out" of the linkage structure by

selecting judges from regions smaller than a county. This

contention is without merit. As Chief Justice Phillips explained

at trial, § 7a was enacted in 1985 as part of a constitutional and

statutory scheme designed to equalize court dockets by allowing the

realignment of judicial districts. The provision states that a

district smaller than a county may not be created unless approved

by a majority of county voters. Tex. Const. Art. 5, § 7a(i). The

35
A visiting judge may not, however, hear a civil case over
the objection of a party. Tex. Gov't Code Ann. § 74.053 (Vernon
Supp. 1993).

100
people of Texas have jealously reserved to themselves, as

individual voters, the power to subdivide districts that have

always been the size of a county, or larger. Nowhere in Texas' 254

counties have residents voted to break the link between

jurisdiction and electoral base. If anything, § 7a(i)'s

unemployment testifies to affirmation, not abrogation, of the

interest in linkage.

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

101
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

102
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 judges are selected, but also its system of

venue, perhaps of case assignment procedures, and maybe even its

jury selection methods. The necessity for such proposals is a

powerful testament to the reality that linkage is an essential part

of the structure of the judicial office, much more than the method

of electing the office holder.

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 (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

103
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

104
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

105
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

(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

106
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 are 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-seven36 district judges in Dallas (13.5%)

are black. County court judges are also elected at-large in Dallas

County; two of those judges are black. Undisputed expert testimony

and surveys showed that less than 2.0% of the lawyers in Dallas

County are both eligible to serve as district judges and black.

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

36
Another district court was added by the legislature.

107
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

black candidates. The following table summarizes the experts'

analyses, in particular the amount of support from white voters

received by each candidate. The first figure represents the "non-

black vote" as estimated by plaintiffs' expert. The range is

defined by the homogenous precinct and bi-variate regression

108
analysis performed by Engstrom. The second figure, in parentheses,

represents the white vote as estimated by Taebel. Taebel did not

analyze the 1984 Tinsley-Maloney race.

Table VI.A

Year Court Candidates Race Party Non-black (white) vote
1980 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.

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 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 low-profile

elections in which the voters know little more about the candidates

than what they read on the ballot. The voters, therefore, will

make their choice based upon the information that the ballot

110
contains--party affiliation. Because a majority of voters in

Dallas County are Republican, Republican candidates prevail in most

of the judicial races.

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.

111
 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

112
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 that these high-profile elections had any relevance to

voting patterns in low-profile judicial elections, the data

presented do not support plaintiffs' argument. For example,

although Weiser emphasized that black city council candidate

Williams drew 27% and 7% of the vote in the most predominantly

black and white precincts, respectively, the fact remains that his

opponent Rucker won a majority of the black vote and the election.

Other black-preferred candidates, such as Strauss in 1983,

prevailed in three of the other six city council elections Weiser

studied. In the 1984 Democratic presidential primary, Jesse

113
Jackson won a plurality (46%) of the Dallas vote. Simply put,

these nonpartisan elections do not demonstrate the consistent

defeat of minority-preferred candidates. To the contrary, the

evidence shows that black-preferred candidates won a majority of

the white vote and the election in most cases.

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

114
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

115
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) the small number of successful black judicial candidates.

The enhancing Zimmer factors were (1) the large size of Harris

County; (2) the prevention of single shot voting by numbered post

election; and (3) the majority runoff requirement in primary

elections. Defendants contend that, under the proper legal

standards, the evidence before the district court amounts at best

to a weak case of dilution that is clearly outweighed by Texas'

interest in linkage. We agree.

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

116
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.37

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

37
The Houston Lawyers' Association maintains that the
district court properly refused to consider elections in which
black and Hispanic voters gave their united support to Hispanic
candidates. The Association does not deny that black and Hispanic
voters uniformly supported the same candidates in virtually every
election analyzed, thus making them a cohesive group under our
precedents. Rather, it objects to our examination of these races
on the more general grounds that "minorities protected by the
Voting Rights Act are not interchangeable" and that the success
of Hispanic candidates "does not tell us anything about the
willingness of white voters to support African American
candidates." These objections, of course, go directly to the
rule permitting the aggregation of different racial and ethnic
minorities itself rather than its application to the facts of
this case. We do not understand either the Association or any
other plaintiffs to challenge the validity of this general rule.
Nevertheless, as we demonstrate below, the weight of Texas'
linkage interest precludes the finding of a § 2 violation even if
these Hispanic-white elections are excluded.

117
minority candidates. Forty of these were indigenous district or

county court elections.38

38
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. T indicates victory by black-preferred candidate
Year Court Candidates Race Party
1980 80th District* McAfee W R
Bonner B D
" 309th District Zimmerman W R
Hinojosa H D
" County Crim Ct 6 Musselwhite W R
Muldrow B D
1982 157th District Salazar H D T
Powell W R
" 208th District* Routt B D T
Arnold W R
" 262d District* Shaver W R
James B D
" 281st District* Moore W R
Ward B D
" 308th District Robertson W D T
Leal H R
" County Crim Ct 6 Musselwhite W R
Muldrow B D
" County Crim Ct 9 Leal H D T
Kolenda W R
1984 80th District* Powell W R
Berry B D
" 178th District* Harmon W R
Jackson B D
" 215th District* Chambers W R
Lee B D
" 339th District Lanford W R
Salinas H D
" County Civil Ct 3 Hughes W R
Hobson B D
1986 133d District* McCorkle W R
Plummer B D
" 157th District Salazar H D T
Wittig W R
" 180th District Lykos W R
Guerrero H D
" 185th District* Walker B D T
Godwin W R
" 209th District McSpadden W R
Sanchez H D
" 232d District Azios H D T
Youngblood W R
" 245th District* Schuble W D T
Proctor B R
" 281st District* Moore W R
Berry B D
" 308th District Robertson W D T
Dodier H R
" County Civil Ct 3 Hobson B D T
Hughes W R
" County Crim Ct 3 Duncan W D T
Irvin B R
" County Crim Ct 4 Anderson W R
Williams B D
" County Crim Ct 9 Leal H D T
Powell W R
" County Crim Ct 11 Mendoza H D T
Pickren W R
" County Crim Ct 13 Atkinson W R
Fitch B D
" County Crim Ct 14 Barclay W R
Fisher B D
" County Probate Ct 4 McCullough W R
Lee B D
1988 80th District* Powell W R
Berry B D
" 133d District* McCorkle W R
Plummer B D
" 152d District* O'Neill W R

118
 As in Dallas County, voters' preferences were strongly

influenced, if not dictated, by partisan affiliation. The black-

preferred candidate in Harris County, regardless of race, was

always the Democratic candidate. For white voters, party

affiliation always trumped race in predicting which candidates

would be supported. The Republican candidate always won the white

vote, generally taking between 55% and 65%, whether the Republican

candidate was black, Hispanic, or Anglo. Similarly, Democratic

candidates always took almost all black and Hispanic votes, even

when a white Democrat ran against a black or Hispanic Republican.

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

Fitch B D
" 179th District Wilkinson W R
Guerrero H D
" 215th District* Chambers W R
Jackson B D
" 295th District* Downey W R
Lee B D
" 333d District* Wilson W R
Spencer B D
" 351st District Salinas H D T
Pruett W R

119
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

120
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.

121
 This evidence may reflect a preference among white Democrats

for white and Hispanic rather than black candidates. Plaintiffs'

assertion that race is at work, however, is contradicted by the

success of black candidates in the Democratic primary, where party

affiliation plays no part. An exhibit introduced by Houston

Lawyers' Association shows that black candidates won 9 of 16, or

56.3%, of the contested primary races. This showing detracts from

the force of plaintiffs' claim.

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

122
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

123
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) (three-judge panel),

and therefore do not support an inference of racial politics in

Harris County.

The circumstantial evidence of a relation between black

voters' electoral losses and race is, at best, tenuous, given the

124
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 sums 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

125
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)

126
Year Court Candidates Race Party White Vote
1982 233d District Valderas H D 36% T
Hines W R
" County Crim Ct 4 Perez H D 48% T
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%) T
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 Vote
1986 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% T
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

127
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.39

Defendants exhibits include a 1986 Democratic primary for district

court in which Ross, the black-preferred candidate, received 57% of

the black vote, but lost the white vote and thus came in third out

of a field of four candidates. Those exhibits show, however, two

other Democratic primaries--ignored by Brischetto--in which black-

preferred Hispanic candidates prevailed.40

39
We note that there were five other viable Democratic
candidates (Dukakis, Gore, Gephardt, Hart, and Simon) in the 1988
primary, so that Jackson could expect to receive only 16.7% of
the white vote if that vote were randomly distributed.
40
Taebel's exhibits also include a 1982 county court primary
that the black-preferred candidate, Hicks, seemed to win by seven

128
 In short, the evidence shows that the black-preferred

candidate won 40% of the Democratic primaries and half of the

indigenous judicial elections studied, including the elections with

Hispanic candidates. The record also shows that black judges have

consistently made up a greater proportion of district judges in

Tarrant County (13.0%) than the proportion of black voters in the

county's population (10.4%), and far more than the proportion of

eligible black attorneys (2.4%).

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

votes. This tabulation, however, was based upon elections
returns prior to a recount under which Hicks apparently lost.

129
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.

130
 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 54.5% of the

indigenous and exogenous elections analyzed.

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.

131
 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.

132
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

133
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):

Austin has repeatedly elected black and Mexican-American
council members during the past 17 years. . . . [T]he
winning minority candidates frequently received well over
fifty percent (50%) of the Anglo vote and were also the
preferred candidates of the minorities. Minority
candidates have routinely been elected to other posts in
Austin and the surrounding Travis County.

Likewise, the defendants here produced evidence that Hispanic

county commissioners had been elected from predominantly Anglo

districts and won Anglo districts, and that Trevino, a Hispanic

Austin city council member, had been elected in city-wide

elections. Against this background, 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.

134
 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.

135
 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

136
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 Bexar County judges. The perversity of such a

result is self-evident.

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

137
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

1989.41 Expert evidence establishes that fourteen eligible

attorneys in Jefferson County, 3.1% of the qualified bar, are

black. The voting age population of Jefferson County is 179,708.

Of this number, 44,283 (24.6%) are black. Plaintiffs proceed on

behalf of black voters in Jefferson County.

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

41
Since trial, district judges in Jefferson County have
filed an amicus brief requesting judicial notice that Davis, an
African-American, was elected to the county court in 1990. The
amicus brief also notes that black Democrat Overstreet and
Hispanic Democrat Morales won a majority of the county's votes in
their respective 1990 races for Court of Criminal Appeals and
Attorney General.

138
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, black-

preferred candidate Freeman failed to win the highest plurality.

139
Plaintiffs would count these results as "defeats" separate from

Freeman's subsequent defeat in the runoffs. Freeman won, however,

the second highest number of votes in the initial primaries and

thus made those runoffs. We do not consider Freeman's showings in

the initial primaries to be separate from the runoff elections.

Thus, the record reflects four justice of the peace elections, not

six.

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 non-

responsiveness on the part of elected officials to the concerns of

140
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 this 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.

141
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 cast the majority of

their votes for the Republican, regardless of the race of the

candidates. Indeed, Barrera, the Hispanic Republican candidate for

Attorney General, won 76% of the Anglo vote when running against

Mattox, a white Democrat--the second highest vote received by any

of the Republicans in the analyzed general elections. Because

Republican voters outnumbered Democratic voters, the minority-

142
preferred Democratic candidate consistently lost. The plaintiffs

have not established the third prerequisite of Gingles.

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.

143
 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

144
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.42

However, the minority-preferred candidate won a majority of the

votes cast in one of these two elections. Although Martinez was

defeated, Gonzalez won a majority of the votes cast in the Lubbock

County Democratic primary for the Supreme Court. These primary

races, therefore, do not indicate that the minority-preferred

candidate was consistently defeated within the meaning of Gingles,

and they cannot establish dilution.

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.

42
As we stated in the discussion of Jefferson County, supra
Part VI.F, we hold that the runoff election subsequent to a
primary election is a single election for the purposes of
computing the success or failure of the minority-preferred
candidate. The victor of the runoff election is the victor of
the combined primary/runoff race.

145
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

146
analyzed. Plaintiffs have failed to meet the third prerequisite of

Gingles.

VII. Conclusion

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

147
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 its meaning and purpose. Ultimately, we

cannot escape the steely truth that we cannot arrive at sound

answers if we fail to ask the right questions. We think that today

we have asked the correct questions and answered them as best we

can.

REVERSED

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;43 it

43
Although the en banc majority opinion adopts the minority
coalition theory for certain aspects of its analysis, those points are not
essential to its result and simply demonstrate that the plaintiffs' own
arguments are self-contradictory.

148
furnishes an alternate ground of decision in the three counties.

I believe the en banc court should lay to rest the minority

coalition theory of vote dilution claims.44

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

44
The Supreme Court has acknowledged but not addressed the minority
coalition theory. Growe v. Emison, ___ U.S. ___, 113 S. Ct. 1075, 1085
(1993). Judge Higginbotham has twice advocated en banc consideration of this
issue. See League of United Latin American Citizens v. Midland I.S.D., 812
F.2d 1494, 1503-09 (Higginbotham, J. dissenting), aff'd in part on other
grounds, 829 F.2d 564 (5th Cir. 1987) (en banc); Campos v. City of Baytown,
Texas, 849 F.2d 943 (5th Cir. 1988) (Higginbotham, J., dissenting from denial
of rehearing en banc). In neither case, for procedural reasons, did the court
acquiesce. I endorse Judge Higginbotham's earlier writings.

149
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 v. City of Baytown, Tex., 840

F.2d 1240, 1244 (5th Cir.), reh'g denied, 849 F.2d 943 (5th Cir.

1988), cert. denied, 492 U.S. 905, 109 S. Ct. 3213 (1989). The Act

does not prohibit claims by minorities from the Indian subcontinent

either. But as Judge Higginbotham pointed out, this is answering

the wrong question. The proper question is whether Congress

150
intended to protect coalitions. Campos, 849 F.2d at 945

(Higginbotham, J. dissenting from denial of reh. en banc). "The

fact that both groups are protected does not justify the assumption

that a new group composed of both minorities is itself a protected

group," Butler and Murray, supra, at 647. Judge Higginbotham

explained the distinction:

In deciding to protect language minorities,
Congress recognized that language and racial
minorities share many disabilities. To
assume, however, that a group composed of both
minorities is itself a protected minority is
an unwarranted extension of congressional
intent. A group tied by overlapping political
agendas but not tied by the same statutory
disability is no more than a political
alliance or coalition.

840 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.45 This

argument was successful in a Texas case in which, paradoxically,

the court also acknowledged that Gingles says nothing about the

possibility of granting relief to minority group coalitions.46

45
A general citation to Thornburg v. Gingles, the Supreme Court's
decision on vote dilution, is superfluous at this point in our court's
writing.
46
Butler and Murray, supra at 642, observe that before the Midland
case, blacks and Hispanics had pursued Voting Rights Act cases together, but
they had sought separate districts or relief for each minority.

151
Previously, it had rejected a plan offered by the plaintiffs that

contained a mixed black/Hispanic district, because it found the

interests of these two minorities too divergent to justify their

submergence in one district. Nevertheless, it predicated a new,

inexplicably opposite finding on Gingles' second prong and

determined that the coalition of blacks and Hispanics was

politically cohesive. League of United Latin American Citizens v.

Midland Indep. Sch. Dist., 648 F. Supp. 596, 606 (W.D. Tex. 1986).47

Again, Judge Higginbotham noted the court's error in purporting to

rely on Gingles:

[Gingles'] three-step inquiry assumes a group
unified by race or national origin and asks if
it is cohesive in its voting. If a minority
group lacked common race or ethnicity,
cohesion must rely primarily on shared values,
socioeconomic factors, and coalition
formation, making the group almost
indistinguishable from political minorities as
opposed to racial minorities.

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.

47
The court's finding on political cohesiveness was supported only
by this:
. . . Blacks and Hispanics worked together and formed
coalitions when their goals were compatible.
Additionally, the bringing of this lawsuit provides
evidence that blacks and Hispanics have common
interests that induce the formation of coalitions.
Id.
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.

152
 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, ___ U .S. ___, 106

S. Ct. at 2766 and n.17. Permitting Section 2 claims by

opportunistic minority coalitions, however, artificially escapes

this hurdle. As a result, the remedy afforded to the coalition may

easily cross the line from protecting minorities against racial

discrimination to the prohibited, and possibly unconstitutional,

goal of mandating proportional representation.48

The tension in Section 2 between the results test and the

prohibition of proportional representation fundamentally

48
The Midland case illustrates this point. The district court
approved a "remedy"
in the form of the best available single member
district to each of the two groups, even though
neither could satisfy [Gingles'] requirements of size
and compactness. . . . Ironically, Section 2, which
specifically disavows a right to proportional
representation, was used to provide greater than
proportional representation for two groups, neither of
whom would have qualified for a seat had proportional
representation actually been the law.
Butler and Murray, supra, 667-68 (emphasis added).

153
distinguishes this case from Chisom v. Roemer, ___ U.S. ___, 111 S.

Ct. 2354 (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

154
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

155
one minority group are at issue.49 But it should be self-evident

that the problem is compounded when different minority groups, with

radically different cultural and language backgrounds,

socioeconomic characteristics and experiences of discrimination

seek Section 2 coalition status. Forcibly merging fundamentally

different groups for the purpose of providing "minority"

representation could be a cruel hoax upon those who are not

cohesive with self-styled minority spokesmen.

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;

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

49
See, e.g., Butler and Murray, 651-57, 674-87, describing the
diverse socioeconomic and ethnic qualities among our Hispanic population.

156
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 743.50 Even in Texas, before this case, the success of

the Midland and Campos plaintiffs was unique. See Overton v. City

of Austin, unpublished, 1987, aff'd, 871 F.2d 529 (5th Cir. 1989)

(rejecting black/Hispanic coalition case in part because evidence

showed that each group voted for candidates of their own race but

not for candidates of the other race.)

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

50
The court in Nixon looked to the following factors, gleaned from
the definition of minority group:

(1) Whether the members have similar socioeconomic
backgrounds resulting in common social disabilities
and exclusion;
(2) whether members have similar attitudes toward
significant issues affecting the challenged entity;
(3) whether members have consistently voted for the
same candidates; and
(4) whether the minorities consider themselves "one"
even in situations in which they would benefit
independently.
Nixon at 790 F. Supp. 744.

157
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.51

The second panel opinion in this Lulac case concedes that

the procedure of allowing Blacks and Hispanics
to proceed as a "coalition" minority group in
a Section 2 claim is fraught with risks.

Lulac II, 986 F.2d 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:

Proponents of coalition dilution suits
argue that minority groups are natural allies
because of their shared exclusion from the
dominant society, and their similar lower
socioeconomic status, which, proponents
maintain, is a product of past discrimination.
Despite the simplistic logic of this position,
it does not comport with the reality revealed
by social science studies. Those studies
suggest just the opposite. The rarity of
documented political alliances between
minority groups is the natural consequence of
differences in their attitudes and
perceptions. Studies indicate that minorities
in fact identify more closely with the
dominant group than with other minorities.
Moreover, perceptions of discrimination vary
widely among groups. Blacks, for example, are

51
See, e.g., Dyer, Dedlitz and Worochel, Social Distance Among
Racial and Ethnic Groups in Texas, Some Demographic Correlates, 70 Social
Science Quarterly 607, 613-14 (1989); Donald L. Horowitz, "Conflict and
Accommodation: Mexican Americans Need Cosmopolis" in Mexican Americans in
Comparative Perspective 58, 84-92 (1985) See also Butler and Murray, supra
n.7.

158
 much more likely than Mexican Americans to
perceive themselves to be victims of
discrimination. Still other studies suggest
that the underlying causes of lowered
socioeconomic status differ among minority
groups. Different root causes of poverty are
likely to lead to different, possibly even
conflicting, demands on the government.

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.

Conclusion

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.

159
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,52 permitting avoidance of

unnecessary monetary and emotional costs and the risks attendant in

all litigation.53 We have long recognized that the parties to an

action "have a right to compromise their dispute on mutually

agreeable terms."54 There is nothing about this action against the

52
Williams v. First Nat'l Bank, 216 U.S. 582, 595 (1910);
see also, e.g., Carson v. American Brands, Inc., 450 U.S. 79, 86-
88 (1981) (potential loss by parties of opportunity to settle
constitutes "serious, perhaps irreparable, consequence" of
district court's refusal to enter consent decree making such
ruling immediately appealable); Bass v. Phoenix Seadrill/78,
Ltd., 749 F.2d 1154 (5th Cir. 1985); In re Chicken Antitrust
Litigation, 669 F.2d 228 (5th Cir. Unit B March 1982); United
States v. City of Alexandria, 614 F.2d 1358 (5th Cir. 1980); cf.
Fed. R. Civ. P. 68 (recipient of settlement offer must pay costs
incurred after receipt where judgment ultimately obtained is not
as good as offer); Fed. R. Evid. 408 (evidence of good faith
settlement negotiation inadmissible as proof of liability or
claim value at trial).
53
Local No. 93, Int'l Ass'n of Firefighters v. City of
Cleveland, 478 U.S. 501, 528-29 (1986); United States v. City of
Miami, 664 F.2d 435, 439 (5th Cir. 1981) (citing United States v.
Armour & Co., 402 U.S. 673 (1971)) (en banc) (plurality opinion).
54
City of Miami, 664 F.2d at 440.

160
State of Texas that would warrant abrogation of that well-

established rubric.55 The Governor and Attorney General, joined by

a majority of both houses of the Texas Legislature, have made

manifest their desire to compromise this action. In its headlong

rush to reach the merits, the majority suggests no persuasive, much

less compelling, reason for the jettisoning of the preferred manner

of dispute resolution. I would grant the motion to remand.

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.56 As its chief legal officer, the Attorney General "has

broad discretionary power in conducting his legal duty and

responsibility to represent the State,"57 including authority to

propose and execute settlement agreements in reapportionment

55
See Chisom v. Edwards, 970 F.2d 1408 (5th Cir. 1992)
(granting joint motion to remand to effectuate settlement in
Louisiana voting rights case).

56
The State is the real party in interest in an action
against one of its officials in her official capacity. Will v.
Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Kentucky
v. Graham, 473 U.S. 159, 165-66 (1985). The plaintiffs here
named as defendants the Governor of Texas, the Attorney General,
the Secretary of State, and the Chief Justice of the Supreme
Court as chair of the Judicial Districts Board, all in their
official capacities. In short, the plaintiffs have sued the
State of Texas.
57
Terrazas v. Ramirez, 829 S.W.2d 712, 721 (Tex. 1991)
(citing Tex. Const. art. 4, § 22; Tex. Gov't Code § 402.021;
further citations omitted).
cases.58 That is what the Attorney General seeks to do in this

case.59 The Attorney General has the active assent of the Governor,

Lieutenant Governor, and a majority of both houses of the Texas

Legislature. Pray tell, what more do we need to accept the

proposed settlement as being made on behalf of 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 SQ and hence that of the

Chief Justice SQ is entirely subject to the will of a majority of

58
Terrazas, 829 S.W.2d at 722; id. at 747 (Mauzy, J.,
dissenting) (at least seven justices agree that "[t]he attorney
general is constitutionally empowered to execute a settlement
agreement in litigation challenging a legislative redistricting
plan.").
59
The majority also makes much of the fact that the consent
decree allows the State of Texas to take actions which would
otherwise be prohibited by state law. I do not think that
consideration of the merits of the proposed consent decree is
appropriate at this juncture. We are a court of errors; the
district court should have an opportunity to conduct a hearing
and determine whether to enter the consent decree before we
decide the merits of such action.
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 (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.

162
the legislature60 which has, albeit in a nonbinding fashion, agreed

to the proposed settlement.61 Further, the status of the Chief

Justice in the Texas judiciary does not carry with it the authority

to speak ex cathedra for the state on policy matters affecting the

judiciary which are unrelated to the decisions of specific cases.62

60
See Tex. Const. art. 5, § 7a(h) ("Any judicial
reapportionment order adopted by the board must be approved by a
record vote of the majority of the membership of both the senate
and house of representatives before such order can become
effective and binding.").
61
Chief Justice Phillips's limited authority in this area
distinguishes the case at bar from Baker v. Wade, 769 F.2d 289
(5th Cir. 1985) (en banc), heavily relied upon by the majority.
Unlike the district attorney in that case, who enjoyed specific
authority under state law to represent the state and bring
prosecutions under the statute there at issue, Chief Justice
Phillips enjoys neither independent authority over judicial
apportionment nor express authority to represent the state.
62
This proposition applies equally to Judges Entz and Wood.
Further, because the proposed consent decree will not affect
their constituencies, Judges Entz and Wood do not gain standing
to challenge the consent decree because of their status as office
holders. City of Cleveland, 478 U.S. at 528-29; City of Miami,
664 F.2d at 447 ("the parties to litigation are not to be
deprived of the opportunity to compose their differences by
objections that find no basis in prejudice to the objector").
Finally, the majority opines that the status of Judges Entz and
Wood as voters in Harris County somehow clothes them with
authority to block a settlement favored by competent state
authorities. While the district courts certainly should permit
input from such intervenors when considering entry of a consent
decree, to accord them what amounts to a veto, as the majority
does, would effectively preclude settlement of any Section 2
litigation SQ an absurd and unconscionable result which I refuse
to embrace. See City of Cleveland, 478 U.S. at 529 ("[W]hile an
intervenor is entitled to present evidence and have its
objections heard at the hearings on whether to approve a consent
decree, it does not have power to block the decree merely by
withholding its consent."). Extending the majority's analysis
would result in any voter being able to block settlement of any
suit against the state or one of its subdivisions. That simply
cannot be. See Apache Bend Apts. v. United States, 987 F.2d 1174
(5th Cir. 1993) (en banc).

163
That the plaintiffs, probably out of an abundance of caution,

joined the Chief Justice as a defendant in this action should not

preclude settlement. No one may seriously suggest that this voting

rights case could not have progressed to a definitive conclusion

without the presence of the Chief Justice. The awesome decision to

deny parties an opportunity to compromise and settle their case,

much less a case as important as that here presented, must be based

on a much more solid, indeed a compelling basis.

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

164
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 Texas'

substantial interests in maintaining the current system. I

165
disagree with this conclusion on two fronts. First, I reject the

majority's assertion that the evidence of vote dilution in this

case is weak. Under the established analytical framework for

assessing section 2 claims, the Plaintiffs' evidence of vote

dilution is anything but weak; indeed, it is only by changing the

rules that the majority can so characterize the evidence in this

case. I also disagree with the majority's determination that the

State of Texas' interests in maintaining its current at-large

election system are substantial. In my view, these interests are

little more than tenuous and therefore could not outweigh even

"marginal" evidence of vote dilution.

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).63 Had this case been decided

before today, the evidence in eight of the nine target counties

would have pointed unerringly towards a finding of vote dilution.

This evidence includes: a geographically compact and politically

cohesive minority group; a white bloc vote that is usually

sufficient to defeat the combined strength of minority and white

crossover votes; a history of official discrimination against the

63
The panel majority opinion contains a fuller discussion
of many of the issues addressed in this dissent. I have tried to
avoid an overly long dissent in the hope that the reader will
refer to the earlier opinion for a more complete treatment of the
issues.

166
minority group; the lingering socioeconomic effects of

discrimination against the minority group; structural mechanisms,

including giant election districts, that tend to enhance the

dilutive nature of at-large election schemes; and an appalling lack

of minority representation on the district court bench.

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 (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

167
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 white bloc voting, that minority-preferred

candidates are consistently defeated by a white majority, and (b)

for racially polarized voting, that minorities and whites vote

differently. What more is required the majority does not expressly

say.

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

168
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:

The [racial bloc voting] inquiry is whether race or
ethnicity was such a determinant of voting preference in
the rejection of black or brown candidates by a white
majority that the at-large district, with its components,
denied minority voters effective voting opportunity.

Id. at 234. Judge Higginbotham further questioned whether racial

bloc voting could be demonstrated without the use of a multivariate

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,

169
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

170
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 opinion, although in the front of the

opinion they are only expressed as "powerful arguments." The

majority asserts, on the one hand, that it "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 electorate in order to decide that the district

court's judgment must be reversed." Majority Opinion at 57-58. It

notes, however, that a racial animus requirement could readily be

inferred from the text and legislative history of section 2, as

well as Supreme Court precedent. See id. at 58. The majority also

asserts that there is "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.'" Id. at 58-59. In this regard,

the majority explains that "[d]escribing plaintiffs' burden in

terms of negating `partisan politics' rather than affirmatively

171
proving `racial animus' would not be simply a matter of

nomenclature." Id. at 59. It notes: "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." Id.

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 61. 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 64.

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:

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

172
 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.

Id. at 106-07. The majority makes similarly explicit holdings in

Midland, Lubbock, and Ector counties. See id. at 141-42 (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 144 (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. 145-46 ("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.64

64
In reversing the district court's findings of legally
significant white bloc voting in the various counties, the
majority relies on trivariate regression analyses submitted by
the State of Texas and Judge Wood in this case--analyses which
unquestionably demonstrated that a candidate's partisan
affiliation was a better predictor of electoral success than a
candidate's race. The majority does not remand this case to the
district court for consideration of the statistics under the new
legal standards for racial bloc voting--as might be expected
under Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982) (where
district court's factual finding is based upon a misapprehension
of law, "a remand is the proper course unless the record permits
only one resolution of the factual issue"). Rather, the majority
concludes that the voting statistics in this case are capable of
only one interpretation--an interpretation that is severely
flawed. See infra Part I.A.1.b(ii).

173
 Thus, although the majority's "holding" with respect to

legally significant white bloc voting and racially polarized voting

is confused and elusive--a paradigm of "fluidity and fixity," see

Majority Opinion at 56--it is nonetheless a holding: Minority

plaintiffs must now establish, at a minimum, that the racially

divergent voting which consistently defeats their preferred

candidates is not the result of partisan politics. Moreover, the

majority hints that the plaintiffs' burden in this regard may even

be higher. That is, minority plaintiffs may have to demonstrate

that racially divergent voting patterns are due to racial animus in

the electorate in order to meet their burden under the legally

significant white bloc voting and racially polarized voting

inquiries.

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

174
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:

(a) No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be
imposed or applied by any State or political
subdivision in a manner which results in a denial
or abridgement of the right of any citizen of the
United States to vote on account of race or color,
or in contravention of the guarantees set forth in
section 1973b(f)(2) of this title, as provided in
subsection (b) of this section.

(b) A violation of subsection (a) of this section is
established if, based on the totality of
circumstances, it is shown that the political
processes leading to nomination or election in the
State or political subdivision are not equally open
to participation by members of a class of citizens
protected by subsection (a) of this section in that
its members have less opportunity 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 in numbers equal to their
proportion in the population.

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

175
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 any real support for the majority's

new definition of legally significant white bloc voting and

racially polarized voting. In a bit of fancy footwork, the

majority asserts that, pursuant to the Senate Report accompanying

the amended section 2, racial bloc voting is established when "race

is the predominant determinant of political preference." Majority

Opinion at 48. The Senate Report says no such thing. It states

that, in considering the totality of the circumstances, courts

should examine "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. Several pages later, in a section

entitled "Responses to Questions Raised About the Results Test,"

the Senate Report reads:

The Subcommittee Report claims that the results test
assumes "that race is the predominant determinant of
political preference." The Subcommittee Report notes
that in many cases racial bloc voting is not so
monolithic, and that minority voters do receive
substantial support from white voters.
That statement is correct, but misses the point. It
is true with respect to most communities, and in those
communities, it would be exceedingly difficult for
plaintiffs to show that they were effectively excluded

176
 from fair access to the political process under the
results test.
Unfortunately, however, there still are some
communities in our Nation where racial politics do
dominate the electoral process.
In the context of such racial bloc voting, and other
factors, a particular election method can deny minority
voters equal opportunity to participate meaningfully in
elections.

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. 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

177
that normally will defeat the combined strength of minority support

plus white `crossover' votes." Id. at 56.

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, 113 S. Ct. 1149, 1157 (1993), Justice O'Connor, writing

for a unanimous Court, stated:

In Thornburg v. Gingles, supra, this Court held that
plaintiffs claiming vote dilution must prove three
threshold conditions. First, they must show that the
minority group is sufficiently large and geographically
compact to constitute a majority in a single-member
district. Second, they must prove that the minority
group is politically cohesive. Third, the plaintiffs
must establish that the white majority votes sufficiently
as a bloc to enable it . . . usually to defeat the
minority's preferred candidate.

(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, 113 S.

Ct. 1075, 1084 (1993), another unanimous opinion.

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.

178
 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 (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

(emphasis added), and cited two examples of how such explanations

might affect it. First, she noted:

Evidence that a candidate preferred by the minority group
in a particular election was rejected by white voters for
reasons other than those which made that candidate the
preferred choice of the minority group would seem clearly
relevant in answering the question whether bloc voting by
white voters will consistently defeat minority
candidates.

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 51. On this issue, she stated:

Insofar as statistical evidence of divergent racial
voting patterns is admitted solely to establish that the
minority group is politically cohesive and to assess its
prospects for electoral success, I agree that defendants

179
 cannot rebut this showing by offering evidence that
divergent racial voting patterns may be explained in part
by causes other than race.

Gingles, 478 U.S. at 100 (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."65

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.

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. 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

65
The majority suggests that evidence that racially
divergent voting patterns are attributable to partisan
affiliation or perceived interests is "quite probative" on the
question of whether white bloc voting will consistently defeat
minority-preferred candidates. Majority Opinion at 57 n.26. I
strongly disagree. If the "perceived interests" of minority
voters lead them to vote for candidates of one political party,
while the interests of a majority of whites lead them to vote for
candidates of a different party, this would seem to strengthen,
not weaken, the consistency with which the two racial groups
would vote differently. That election results appear to be
attributable to voting along party lines, then, does not suggest
that other candidates, "equally preferred by the minority group,
might be able to attract greater white support in future
elections." In short, it does nothing to undercut--and may even
strengthen--the consistency with which minority-preferred
candidates are defeated.

180
or prove racial animus in the electorate in order to demonstrate

polarized voting.

Finally, I must say a few words about the Supreme Court's

decision in Whitcomb v. Chavis, 403 U.S. 124 (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 198.66 Significantly, Congress never

66
The Department of Justice (DOJ) argues persuasively in
its en banc brief that the real issue in Whitcomb was not whether
blacks in Marion County generally were denied an opportunity to
elect their chosen candidates, but whether ghetto blacks were
being denied such an opportunity. DOJ points specifically to
evidence suggesting that "black voters in a middle-class black
area were able to elect candidates from their area even when
Republicans were winning generally." See Whitcomb, 403 U.S. at
133, 150 n.29 (noting that census tract 220, inhabited

181
interpreted Whitcomb to require minority plaintiffs to prove that

the consistent defeat of their preferred candidates is not the

result of partisan politics. As explained more fully in my earlier

opinion, Whitcomb stands for the proposition that where there is

evidence of partisan voting or interest group politics and no

evidence that members of the minority group have an unequal

opportunity to participate in the political process on account of

race or color, the minority group's vote dilution claim will fail.

See LULAC III, 986 F.2d at 808-10.

(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

predominantly by middle class blacks, elected one senator and
five representatives). The ghetto area had similar success.
During the same time period, it elected one senator and four
representatives. Id. at 150 n.29.

182
testified in this case,67 that the causes of voting behavior cannot

be determined from the use of any kind of regression analysis--

whether bivariate, trivariate, or multivariate.

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 REGRESSION IN

BEHAVIORAL RESEARCH: EXPLANATION AND PREDICTION 175 (2d ed. 1982).

There are two main problems with inferring causation on the

basis of regression analyses in the context of non-experimental

research:

First, variables used in nonexperimental research may be,
and often are, proxies for causal variables that are not
included in the regression equation. . . . Needless to
say, manipulating a proxy variable will not bring about
a desired effect regardless of the magnitude of the
regression coefficient associated with it. Yet, one
encounters frequently not only the interpretation of
proxies as if they were causal variables but also
recommendations for policy decisions on the basis of such
interpretations. . . .

67
The State of Texas' expert in this case conceded that his
intent in conducting a trivariate regression analysis "was not
find out the precise reasons why a candidate won or lost." He
further stated that, if he "had tried to get involved in campaign
expenditures and incumbency, ratings by the Bar Association, it
would be an impossible task to do." See LULAC III, 986 F.2d at
805.

183
 Second, variables in nonexperimental research tend
to be intercorrelated. Since more often than not
researchers neither understand the causes of the
interrelations nor attempt to study them, implications of
regression coefficients for policy decisions are
questionable.

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.68

68
Professor Bernard Grofman, of the University of
California at Irvine, has recently commented on the pitfalls of
drawing conclusions about causation from multivariate analyses of
voting patterns. In an article appearing in Social Science
Quarterly, Professor Grofman laments that "[f]undamental flaws
exist in most multivariate approaches to bloc voting analysis
used to date." Bernard Grofman, Multivariate Methods & the
Analysis of Racially Polarized Voting: Pitfalls in the Use of
Social Science by the Courts, 72 SOC. SCI. Q. 826, 828 (1991).
Professor Grofman specifically criticizes the methodology used by

184
 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

the defendants' expert in McCord v. City of Fort Lauderdale, 787
F.2d 1528, vacated, 804 F.2d 611 (11th Cir. 1986). This expert
testified that, because the race of the candidate was not
significant in explaining election outcomes beyond what could be
accounted for by other variables (such as incumbency, campaign
expenditures, newspaper endorsements, voter turnout, and the sex
of the candidate), race was not really a factor in accounting for
voting patterns. See 787 F.2d at 829. According to Professor
Grofman, the expert's interpretation of the voting statistics was
"simply wrong," because, among other things, "there are so many
other variables collinear with race used that they almost
certainly will reduce [the] significance of race in a
multivariate regression." Grofman, supra, at 830. Ultimately,
Professor Grofman concludes:

[A]s used so far by expert witnesses for defendants in
voting rights cases, multivariate regression methods
have produced misleading results about the levels of or
existence of racial bloc voting patterns, and have
served mainly to misuse statistics and confuse courts.

Id. at 832.

185
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 the party affiliation of a candidate

is a better predictor of electoral success than the race of the

candidate. Because we are dealing with non-experimental research,

however, I cannot take the leap that the majority makes--namely,

that the party affiliation of a candidate is the best, or the

single most powerful, explanation of electoral success. The

evidence in this case also demonstrates that, in many of the

counties, race is substantially correlated with party affiliation,

and the trivariate regression analysis offered in this case did not

determine, and could not have determined, why people join certain

parties. In my view, then, it can no more explain why people vote

the way they do than a bivariate regression analysis.

Significantly, for purposes of the Voting Rights Act, it could not

negate "race or color" as an explanation for election outcomes.

(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

186
the way they did69--their claim will fail. In fact, they will not

even be able to make out a prima facie case.70

69
But see Kirksey v. City of Jackson, 663 F.2d 659, 662
(5th Cir. Unit A Dec. 1981) (holding that, because of First
Amendment concerns, voters' motivations are not subject to
searching scrutiny by plaintiffs in a voting rights case),
clarified, 669 F.2d 316 (5th Cir. 1982).

70
In this regard, I note that the majority's position is
much more strained and severe than the one taken by Chief Judge
Tjoflat of the Eleventh Circuit. In Solomon v. Liberty County,
899 F.2d 1012 (11th Cir. 1990) (evenly-divided en banc opinion),
cert. denied, 498 U.S. 1023 (1991), Chief Judge Tjoflat, writing
for four other judges, advocated a no racial bias affirmative
defense under section 2. He reasoned:

I submit that section 2 prohibits those voting systems
that have the effect of allowing a community motivated
by racial bias to exclude a minority group from
participation in the political process. Therefore, if
a section 2 defendant can affirmatively show, under the
totality of the circumstances, that the community is
not motivated by racial bias in its voting, a case of
vote dilution has not been made out.

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 (1983); McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (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,

[i]f. . . the defendant offers proof of other objective
factors in rebuttal, the court must be satisfied,
before it may rule in favor of the plaintiff[s], that,
under the totality of the circumstances, the minority
group is denied meaningful access to the political
process "on account of race or color." If the
defendant can affirmatively show that the "social and
historical conditions" are such that their interaction
with the scheme will not result in voting
discrimination, the plaintiff[s] cannot prevail. Such
an affirmative showing can be made with evidence of
objective factors that, under the totality of the

187
 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, generally in a different

political party, whose voting strength is sufficient usually to

defeat the combined strength of minority votes plus white

"crossover" votes. The problem for minority voters in the typical

section 2 case is that they have been submerged in a white

majority--unable to forge a coalition with enough whites to elect

representatives of their choice. Thus, the Voting Rights Act, as

interpreted in Gingles and succeeding cases, presupposes partisan

voting and asks whether politically cohesive minority voters have

circumstances, indicate that the voting community is
not driven by racial bias.

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:

I do not mean to imply that a defendant, by proving
absence of racial bias, can rebut a plaintiff's showing
of racial bloc voting. . . . Such evidence, however,
does not create an irrebuttable case of vote dilution--
it is irrebuttable proof of only one factor (albeit an
important factor) in the totality-of-the-circumstances
test.

Id. at 1035 n.12.

188
an unequal opportunity to participate in the political process--a

partisan political process--and to elect representatives of their

choice on account of race or color.

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.71

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

71
The majority implies that interest group politics did not
begin in Texas until the 1980's, when the Republican Party
emerged as a force to be reckoned with. The majority ignores
that, even when Texas was a one party state, there were still
different factions, or interest groups, within the Democratic
party. Thus, partisan or interest group politics has always been
a feature of Texas' colorful political landscape. To hold
otherwise is to ignore the past reality. As noted previously,
the evidence in this case reflects that, before 1980, minority-
preferred candidates lost in Democratic primary elections,
generally to white Democrats; after 1980, minority-preferred
candidates may make it to the general election, but only to lose
to white Republicans. See LULAC III, 986 F.2d at 812 n.59.
"From the vantage point of minority voters--which is the vantage
point of section 2--it is difficult to see how the arrival of a
two party system in Texas has altered their ability to
participate in the political process and elect candidates of
their choice." Id.

189
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.72 Of course, in calling

this interest group politics, the majority treats a racial or

language minority group as a mere "interest group" rather than as

a politically cohesive minority group striving to make its voice

heard.

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

72
In support of its assertion that partisan politics, not
race, is responsible for the inability of blacks and Hispanics to
participate in the political process and elect representatives of
their choice, the majority notes that "white Democrats have in
recent years experienced the same electoral defeats as minority
voters." Majority Opinion at 63. It then states:

If we are to hold that these losses at the polls,
without more, give rise to racial vote dilution
warranting special relief for minority voters, a
principle by which we might justify withholding similar
relief from white Democrats is not readily apparent.

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.

190
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 defeat the

minority's preferred candidate. Gingles, 478 U.S. at 48-51. Once

the minority group satisfied the Gingles threshold inquiry, it

would have to put on evidence of the totality of the circumstances

to demonstrate: (1) that it has an unequal opportunity to

participate in the political process and elect representatives of

its choice, see 42 U.S.C. § 1973(b); and (2) that this unequal

opportunity to participate and elect is tied to race or color, see

42 U.S.C. § 1973(a). See also LULAC III, 986 F.2d at 754-55.

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). 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. They could not

191
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.

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

192
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.6.73 The causes of racially divergent

voting patterns are also relevant to the totality of circumstances

inquiry. If it can be shown that white voters who consistently

vote against minority-preferred candidates are motivated by racial

animus, such proof could be a signal of vote dilution. See id. at

753-54. As Justice O'Connor explained in her Gingles concurrence,

in "a community that is polarized along racial lines, racial

hostility" may create even more of a barrier to participation in

the political process. See 478 U.S. at 100 (emphasis added). It

might, for example, affect the "likelihood that candidates elected

without decisive minority support would be willing to take the

minority's interests into account." Id. For the same reasons,

proof that the white voters are not motivated by racial animus

73
I therefore agree with Justice O'Connor's position on the
extent to which explanations for racially divergent voting
patterns are relevant to the white bloc voting inquiry. In
Gingles, she stated:

Evidence that a candidate preferred by the minority
group in a particular election was rejected by white
voters for reasons other than those which made that
candidate the preferred choice of the minority group
would seem clearly relevant in answering the question
whether bloc voting by white voters will consistently
defeat minority candidates. Such evidence would
suggest that another candidate, equally preferred by
the minority group, might be able to attract greater
white support in future elections.

478 U.S. at 100 (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.

193
would also be relevant to the totality of circumstances inquiry.

The absence of proof of racial animus, however, should not weigh

heavily against minority plaintiffs proceeding under section 2.

"[B]ecause overt political racism has decreased over time, racial

animus in the electorate may be difficult, if not impossible to

detect." LULAC III, 986 F.2d at 754 (citing United States v.

Marengo County Comm'n, 731 F.2d 1546, 1571 (11th Cir.), cert.

denied, 469 U.S. 976 (1984)).

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.

194
 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

195
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.74 Moreover, as explained in LULAC III, uninformed and

straight-ticket voting along party lines can, and in this case

does, reinforce minority voters' unequal access to the political

process. Id. at 812.

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 arguing against a finding of vote dilution, (b) declares

that the history of official discrimination against blacks and

Hispanics is to be entitled to little weight, (c) makes certain

factors indicative of current racial bias "particularly" important

under the totality of circumstances inquiry, and (d) aggregates

blacks and Hispanics in two of the counties, even though no one

sought to do so in the district court. By further altering the

section 2 framework, the majority can confidently conclude that the

evidence of vote dilution in this case is "weak."

74
This evidence would also, therefore, be insufficient to
establish a "no racial bias" affirmative defense, as advocated by
Chief Judge Tjoflat of the Eleventh Circuit. See supra note 8.

196
 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 76. 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 146. 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 146-47.75

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

75
I am referring specifically to the majority's decision to
explore low black enrollment at Louisiana State University Law
School. This "example" has about as much to do with this case as
does George Wallace's decision to crown a black homecoming queen
at halftime of a football game at the University of Alabama. See
LULAC III, 986 F.2d at 819 (Higginbotham, J., dissenting).

197
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 750-52.76 Second, in

most of the counties at issue in this case, there are numerous

minority lawyers who are well-qualified for the job of Texas

district court judge. According to the State of Texas' own

exhibits, there are hundreds of eligible minority lawyers in Bexar

(317 eligible Hispanics), Dallas (184 eligible blacks), and Harris

counties (446 eligible blacks). There are also significant numbers

of minority lawyers in several of the other counties. As the

district court correctly found, "even if there is some relationship

between the low number of minority judges and the number of

eligible minority lawyers, that fact does not explain why well

qualified eligible minority lawyers lose judicial elections."

76
As the Houston Lawyers' Association noted at oral
argument, the Voting Rights Act is not about equal employment
opportunities; it is about the equal opportunity of voters to
participate in the political process and elect representatives of
their choice. In this regard, it is interesting to note that the
majority, in proclaiming that minorities are overrepresented on
the district court bench, frequently considers minority judges
who were not minority-preferred candidates. In Dallas County,
for example, the majority recites that five of the thirty-six
district judges are black. What the majority does not say is
that the two black judges who won partisan elections were not
even the preferred candidates of the black community. The
majority also ignores the fact that, at the time of trial in
Dallas County, no black candidate with the support of the black
community had ever won a contested election for district judge.
See LULAC III, 986 F.2d at 785.

198
 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 which members of the minority group in the

state or political subdivision bear the effects of discrimination

in such areas as education, employment, and health, which hinder

their ability to participate effectively in the political process."

S. REP. at 29, 1982 U.S.C.C.A.N. at 206. The majority recognizes,

as it must, that no one has "questioned [P]laintiffs' assertion

that disparities between white and minority residents in several

socioeconomic categories are the tragic legacies of the State's

discriminatory practices." Majority Opinion at 77. The Plaintiffs

introduced exhibits in each of the counties showing that minorities

lag unreasonably behind whites in terms of income, education, and

employment. Along these lines, it cannot seriously be disputed

that the lack of eligible minority lawyers is in no small part the

result of past racial discrimination in Texas schools--

discrimination that remains unremedied in some cases even to this

day.77

77
For most of its history, Texas has maintained--at all
levels--a racially discriminatory education system. See, e.g.,
Sweatt v. Painter, 339 U.S. 629 (1950) (holding that the
University of Texas Law School's racially discriminatory
admittance policy violated the Equal Protection clause of the
Fourteenth Amendment). This system of dual schools, which were
undoubtedly separate and unequal, began to be remedied as early
as 1960 in the Houston public school system. See Houston Indep.
Sch. Dist. v. Ross, 282 F.2d 95 (5th Cir. 1960) (affirming

199
 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

district court order which required desegregation of schools to
begin in September 1960); see also Flax v. Potts, 464 F.2d 865,
867 (5th Cir.) (noting that Fort Worth Independent School
District had official policy of segregation until 1967), cert.
denied, 409 U.S. 1007 (1972). Other communities, however, began
dismantling their dual school systems at a much later date. See
United States v. CRUCIAL, 722 F.2d 1182 (1983) (affirming
district court's finding that Ector County engaged in intentional
segregation of black and Hispanic students, which extended into
the 1981-82 school year); Graves v. Barnes, 378 F. Supp. 640, 648
(W.D. Tex. 1974) (three-judge court) (finding that twenty years
after the Supreme Court's decision in Brown v. Board of
Education, 347 U.S. 483 (1954), the Beaumont Independent School
District continued to bus black children away from their
neighborhood schools and across town to all-black schools),
vacated sub. nom. White v. Regester, 422 U.S. 935 (1975); id. at
654-55 (recognizing that authorities in Lubbock County maintained
racially and ethnically segregated schools until the 1970's). As
a result of these desegregation efforts, many of the school
districts that were under court supervision for some twenty years
finally achieved unitary systems during the 1980's. See, e.g.,
United States v. Texas Educ. Agency, 138 F.R.D. 503, 505 (N.D.
Tex. 1991) (noting that Lubbock Independent School District was
declared to be a unitary system in May 1988), aff'd, 952 F.2d 399
(5th Cir. 1991), cert. denied, 112 S. Ct. 2992 (1992); Flax v.
Potts, 725 F. Supp. 322, 330 (N.D. Tex. 1989) (declaring Fort
Worth Independent School District to be unitary), aff'd, 915 F.2d
155 (5th Cir. 1990); Covington v. Beaumont Indep. Sch. Dist., 714
F. Supp. 1402, 1404 (E.D. Tex. 1989) (noting that Beaumont
Independent School District was declared unitary in 1984). The
only notable exception in this regard is the Dallas public school
system, which continues to be under court supervision. See Tasby
v. Edwards, 807 F. Supp. 421 (N.D. Tex. 1992)
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.

200
the majority's suggestions otherwise,78 "[t]he requirement that the

political processes leading to nomination and election be `equally

open' to participation by the group in question extends beyond

formal or official bars to registering and voting, or [even] to

maintaining a candidacy." Id. at 30, 1982 U.S.C.C.A.N. at 208

(emphasis added); see also Shaw v. Reno, 113 S. Ct. 2816 (1993)

(noting that the success of the Voting Rights Act of 1965 in

reducing the spread between black and white voter registration did

not suffice to root out other racially discriminatory voting

practices, such as multi-member or at-large electoral systems);

Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) ("There is more to

the right to vote than the right to mark a piece of paper and drop

it in a box or the right to pull a lever in a voting booth.").

That is, the question of whether the lingering socioeconomic

effects of discrimination hinder the ability of minorities to

participate in the political process is much broader than asking

whether they register and vote at rates equal to whites. See S.

REP. at 6, 1982 U.S.C.C.A.N. at 183 (noting that "registration is

only the first hurdle to full effective participation in the

78
The majority holds that Plaintiffs can only show
depressed political participation by pointing to low voter
registration or low voter turnout rates. Based on this holding,
it reverses as clearly erroneous the district court's finding
that blacks and Hispanics throughout the State of Texas continue
to bear the effects of past discrimination, which hinder their
ability to participate in the political process. Thus, while the
majority uses the lack of minority lawyers against the Plaintiffs
with respect to the inquiry into the number of minority judges,
it ignores the lack of minority lawyers on the question of
whether the lingering socioeconomic effects of discrimination
hinder the ability of blacks and Hispanics to participate in the
political process. This is absurd.

201
political process"); id. at 30 n.120, 1982 U.S.C.C.A.N. at 208

n.120 ("[T]he conclusion . . . that in fact [minorities] ha[ve]

registered and voted without hindrance" is not dispositive under

section 2). One aspect of the ability to participate in the

political process must surely include the ability to run for the

office, and as long as minorities continue to bear the effects of

past discrimination in education and employment, their ability to

participate in the Texas district court political process will be

severely hindered. See TEX. CONST. art. V, § 7 (establishing

eligibility requirements for district court judges).

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 206.79

79
There is also testimony in the record suggesting that the
ability of minorities to run in county-wide elections is hampered
by their lack of financial resources. The majority, after
weighing this evidence with other evidence suggesting that
minorities were able to raise funds, finds that minorities were
able to run well-financed campaigns. It thus concludes that the
testimony from several witnesses about minority candidates' lack
of financial resources does not support the district court's
finding that the lingering socioeconomic effects of
discrimination hinder the ability of minorities to participate
effectively in district court elections. I disagree. In my
view, the testimony of these witnesses, as well as Dr.
Brischetto's expert testimony on the subject, provide further

202
 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 77. 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

support for the district court's finding in this regard.
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.

203
respect, that evidence of past discrimination--even standing alone-

-is a factor pointing toward vote dilution under section 2.

Indeed, in amending section 2 and enacting the results test,

Congress intended to remedy past discrimination. It expressly

found "that voting practices and procedures that have

discriminatory results perpetuate the effects of past purposeful

discrimination." Id. at 40, 1982 U.S.C.C.A.N. at 218 (emphasis

added). The majority effectively ignores this legislative decision

by requiring Plaintiffs to demonstrate that the effects of past

discrimination "actually hamper the ability of minorities to

participate." Majority Opinion at 77.

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,

This disconnection of present from past . . . cannot
be made to seem successful today, any more than in 1883.
American slavery lasted more than two centuries, not too
far from twice the time since its abolition. Even
abolition was not the end. Quite soon after the Civil
War, the national effort to remedy the situation of the
newly free was as good as abandoned; in the places where
most of them lived they were not even so much as allowed
to vote in the only election that counted; per capita
public expenditures in public schools for their children
ran far below--sometimes by a factor of one to ten--
expenditure in white schools. The paradox of "separate
but equal," improvised--like the white primary--with a
broad knowing wink, not only imprisoned black people in
these schools, but also cut off all black people,
children and grown-ups, from any kind of equal
participation in the common life of the community.

Id. at 1529-30; see also supra note 15.

204
 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 non-responsive 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,80

80
In reversing the district court's findings of vote
dilution, the majority places heavy emphasis on the fact that, in
several of the counties, white majorities voted for Republican
minority judicial candidates. It also creates the impression

205
the existence of racial campaign appeals, and the responsiveness of

elected officials--are concerned primarily with current racial

animus in either the electorate, in candidates, or in elected

officials. In my view, current racial hostility is not the

ultimate focus of section 2. See supra Part I.A.1.c.

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

that the Republican Party aggressively recruited minority
candidates in all of the counties at issue. Majority Opinion at
63. This picture is not entirely accurate.
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.

206
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.81

81
Indeed, as I noted in my earlier opinion in this case,
with respect to Harris County, the parties specifically argued in
the district court (and requested a fact finding) that "Blacks
and Hispanics together in Harris County do not constitute a
politically cohesive minority group." See LULAC III, 986 F.2d at
789. And in Tarrant County, no party ever requested a fact
finding that blacks and Hispanics are politically cohesive. See
id. at 799-800 n.49.
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

207
 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,82 it is clear that, if such coalition minority

groups are permitted, "proof of minority political cohesion is all

the more essential." Growe v. Emison, 113 S. Ct. at 1085. In my

view, it is not within the power of a federal appellate court to

make this fact finding--especially where none was requested below.

that heard this case in 1990, raised this issue for the first
time on appeal. It asserted:

If [a coalition of blacks and Hispanics] can be proved
by voting rights plaintiffs in order to help them meet
the first two Gingles preconditions, what prevents
voting rights defendants from proving the existence of
such a de facto coalition in order to shed light on
whether the third Gingles precondition can be met? The
district court denied the State Officials that
opportunity in the targeted counties, including Harris
and Tarrant Counties, by treating as irrelevant the
numerous races analyzed there involving Anglo judicial
candidates versus Hispanic judicial candidates . . . .

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.
82
The majority curiously does not feel the need to revisit
our decision in Campos v. City of Baytown, 840 F.2d 1240, 1244
(5th Cir. 1988), cert. denied, 492 U.S. 905 (1988)--despite the
fact that several of my colleagues obviously disagree with the
principle of allowing minorities to proceed as a coalition under
section 2. See Campos v. City of Baytown, 849 F.2d 943 (5th Cir.
1988) (Higginbotham, J., joined by Gee, Garwood, Jolly, Davis,
and Jones, JJ., dissenting from denial of rehearing en banc);
League of United Latin American Citizens, Council No. 4386 v.
Midland Indep. Sch. Dist., 812 F.2d 1494, 1503 (5th Cir. 1987)
(Higginbotham, J., dissenting).

208
 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, 111 S. Ct.

2395 (1991), to have age qualifications for its judges.

209
 Assuming arguendo that we are supposed to weigh non-tenuous

state interests against proven vote dilution,83 there are several

flaws in the majority's analysis of the strength of Texas' linkage

interest. First, I remain unconvinced that Texas insists on

linking "primary jurisdiction" with electoral base. Also, there is

a serious question as to whether this linking of primary

jurisdiction with electoral base actually promotes the values of

independence and accountability. Finally, Texas' linkage interest

can be equally served by other means, means that would not dilute

minority voting strength. Once these analytical flaws are exposed,

it becomes clear that Texas' decision to link electoral base with

primary jurisdiction is not at all comparable to Missouri's

decision in Gregory to have age limits for its trial judges.

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

83
Before the Supreme Court's decision in Houston Lawyers'
Association v. Attorney General of Texas, 111 S. Ct. 2376 (1991),
courts considered, in the liability phase of a section 2 case,
only whether the state's interest in the current electoral scheme
was tenuous. Although I have some questions as to whether the
Court, in Houston Lawyers' Association, meant to change the
inquiry and require proven vote dilution to be balanced against
non-tenuous state interests, see LULAC III, 986 F.2d at 757-64, I
recognize that the Court's opinion in that case can be read to
require such balancing. See also Robert B. McDuff, Judicial
Elections and the Voting Rights Act, 38 LOY. L. REV. 931, 958-60
(1993).

210
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 Travis County

has the power to declare unconstitutional the entire state's method

of financing public schools. See Edgewood Indep. Sch. Dist. v.

Kirby, 777 S.W.2d 391 (Tex. 1989) (affirming trial court's

decision). Thus, it is misleading for the majority to insist that

Texas links the "primary jurisdiction" of district court judges

with their electoral base. Indeed, the very opposite is the case:

a Texas district judge's jurisdiction extends far beyond his or her

electoral base. The majority is saying no more than that Texas'

electoral districts, which are no smaller than a county, usually

coincide with the venue unit under Texas law, which is also the

county.

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

211
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,

The Texas venue rules have not been drafted to insure
that parties appear before judges for whom they have had

212
 an opportunity to vote. Instead, the venue rules for
lawsuits involving living persons. . . "were, in the
main, manifestly adopted to prevent serious
inconveniences and probable injury to defendants. . . .
Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 142
(1951).

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 plaintiffs' lawyers, defense

213
lawyers, or some other interest group, are responsive to the needs

of all voters in the county--including minority voters. Yet it

assumes that a judge elected from a majority-minority district

would somehow be less willing to follow his or her oath or to be

responsive to the needs of all. There is absolutely no evidence in

the record to support such an assumption. See also McDuff, supra

note 21, at 949 ("Of course, absolutely no reason exists to believe

that black judges elected from majority black districts or Hispanic

judges elected from majority Hispanic districts will be any more

`partisan advocates' than the white judges presently elected from

majority white districts.").

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 103. Thus, the majority decides,

214
"[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.84

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

84
Even Chief Justice Phillips has publicly recognized that
a system using limited and cumulative voting could remedy the
dilutive aspect of Texas' current at-large election system. In
his recent State of the Judiciary Address, he noted that
"[m]inority voters could be protected by any method which permits
votes to be aggregated or limits each voter to fewer votes than
the number of positions to be filled." H.J. OF TEX., 73d Leg.,
R.S. 479, 483 (1993). He further stated that, "[w]hile little
used in judicial elections, such procedures have long been used
in both public and private elections around the world." Id.

215
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

short-hand 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 law, or in reality. It

could not outweigh the evidence of vote dilution in this case even

if that evidence were only weak, which it manifestly is not.

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

216
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.

217
 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 (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.85

85
The general rule is that, for purposes of determining
whether a suit in federal court is barred by the Eleventh
Amendment, an official-capacity lawsuit is a suit against the
state itself rather than a suit against the named official. In
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), the Court
explained:

Personal-capacity suits seek to impose personal
liability upon a government official for actions he
takes under color of state law. See, e.g., Scheuer v.
Rhodes, 416 U.S. 232, 237-38 (1974). Official-capacity
suits, in contrast, "generally represent only another
way of pleading an action against an entity of which an
officer is an agent." Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 690 n.55 (1978). As
long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is,
in all respects other than name, to be treated as a
suit against the entity. Brandon [v. Holt, 469 U.S.
464, 471-72 (1985)]. It is not a suit against the
official personally, for the real party in interest is
the entity.

(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 ("Unless a State has waived its Eleventh Amendment

218
 Jurisdictional fictions notwithstanding, I would hold that, at

least for purposes of determining whether this case should be

remanded, this is a suit against the State of Texas itself.

Indeed, in one of our previous opinions, we recognized that the

Plaintiffs sued "Texas through its officials." League of United

Latin American Citizens, Council No. 4434 v. Clements, 923 F.2d

365, 367 (5th Cir. 1991) (Gee, J.) (en banc); see also id. (again

recognizing that the "defendant" in this case is "the state").

Given the fact that section 2 only prohibits a "State or political

subdivision" from employing certain voting practices and

procedures, see 42 U.S.C. § 1973(a), our recognition that this

lawsuit was in all aspects (other than for 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 (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. 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 (1989) (recognizing that Ex Parte Young
established a "fiction"); Cory v. White, 457 U.S. 85, 95 (1982)
(referring to "fiction of Ex Parte Young"); Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 105 (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. 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. But see also Diamond v. Charles, 476 U.S. 54,
57 n.2 (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").

219
purposes) filed against the State of Texas was entirely warranted.

See also League of United Latin American Citizens, Council No. 4434

v. Clements, 884 F.2d 185, 189 (5th Cir. 1989) ("A voting rights

case challenges the election process rather than the individuals

holding offices.") (emphasis added).

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 statutes86--were on opposing sides of

litigation in state court. Thus, it is not a case where we must be

concerned with possible conflicts of interest. See id. at 125.

Rather, this is a case in which certain officials were named as

"jurisdictional parties." See Bullock v. Texas Skating Ass'n, 583

S.W.2d 888, 894 (Tex. Civ. App.--Austin 1979, writ ref'd n.r.e.).

In short, I think that the Attorney General's client in this case

is the State of Texas--not the various officials who were joined

solely for Eleventh Amendment purposes.

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

86
See TEX. REV. CIV. STAT. ANN. art. 601b, § 10.11 (Vernon
Supp. 1987) (providing that the attorney general "shall represent
the [State Purchasing and General Services Commission] before the
courts in all appeals from rate cases in which the commission
intervenes"); TEX. REV. CIV STAT. ANN. art. 1446c, § 15 (Vernon
Supp. 1987) (providing that the attorney general shall represent
the Public Utilities Commission "in all matters before the state
courts, and in any court of the United States, and before any
federal public utility regulatory commission").

220
protect its interests? The answer is supplied by state law. Cf.

New York v. Uplinger, 467 U.S. 246, 248 (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.87 The Texas Constitution specifically

provides that the Attorney General "shall represent the State in

all suits and pleas in the Supreme Court of the State in which the

State may be a party." TEX. CONST. art IV, § 22. The

interpretative commentary to this provision notes that the

"attorney general is the chief law officer of the state" and has

the responsibility of "representing the state in civil litigation."

Id., interp. commentary (emphasis added). The Texas Government

Code is similarly explicit in naming the Attorney General to speak

for the state. It provides: "The attorney general shall prosecute

and defend all actions in which the state is interested before the

supreme court and courts of appeals." TEX. GOV'T CODE ANN. § 402.021

(Vernon 1990).

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

87
As explained more fully below, district attorneys and
county attorneys also have the authority to represent the state
in some circumstances. See TEX. CONST. art. V, § 21; see also
Baker v. Wade, 769 F.2d 289, 291 (5th Cir. 1985), cert. denied,
478 U.S. 1022 (1986).

221
state. The Texas Supreme Court recognized as much in Maude v.

Terrell, 109 Tex. 97, 200 S.W. 375, 376 (1918), when it explained:

[T]he powers thus conferred by the Constitution upon [the
Attorney General and the county and district attorneys]
are exclusive. The Legislature cannot devolve them upon
others. Nor can it interfere with the right to exercise
them. It may provide assistance for the proper discharge
by these officials of their duties, but since in the
matter of prosecuting the pleas of the State in the
courts the powers reposed in them are exclusive in their
nature, it cannot, for the performance of that function,
obtrude other persons upon them and compel the acceptance
of their services. Wherever provision is made for the
services of other persons for that express purpose, it is
the constitutional right of the Attorney-General and the
county and district attorneys to decline them or not at
their discretion, and, if availed of, the services are to
be rendered in subordination to their authority.

(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.

222
 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 12.88 In support of this finding, the

majority relies heavily on our en banc decision in Baker v. Wade,

769 F.2d 289 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022

88
I say "curiously" because Chief Justice Phillips has
never sought to represent the interests of the state in this
appeal. At oral argument, when he was specifically asked whether
he was seeking to represent the state on appeal from the
liability decision, Chief Justice Phillips said that he was not.
That is, he made it clear that his complaints go only to the
specifics of the proposed settlement--not to the idea of settling
this case in general. Indeed, in a speech to the Texas
legislature, Chief Justice Phillips conceded that, regardless of
the outcome in this litigation, the current system of electing
district judges is indefensible. He explained:

Let there be no mistake: the current at-large system
is no longer acceptable. In Dallas County, 37% of the
people, but less than 14% of the judges, are African-
American or Hispanic. In Harris County, 42% of the
people, but less than 9% of the judges, are from the
same minority populations. Candidates from these
racial and ethnic groups have often been defeated in
campaigns for benches in those counties. The federal
courts may ultimately hold that the evidence presented
in pending litigation is insufficient to demonstrate
that the system is illegal, but they cannot make it
fair or right. The status quo is unjust and
inequitable.

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.").

223
(1986), where we permitted a state district attorney to represent

the State of Texas' interests on appeal after the Attorney General

declined to do so.

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

224
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:

The Attorney General, as the chief legal officer of the
State, has broad discretionary power in conducting his
legal duty and responsibility to represent the State.
This discretion includes the authority to propose a
settlement agreement in an action attacking the
constitutionality of a reapportionment statute. The
Attorney General has participated in such settlements on
previous occasions. Although the Attorney General
appears to have acted throughout this litigation only on
behalf of the state defendants and not for himself, he
had the authority, certainly for his clients and even on
his own, to suggest possible remedies after the district
court rendered an interlocutory summary judgment holding
Senate Bill 31 unconstitutional. He also had the power
to negotiate a settlement with the plaintiffs and to
execute an agreement with them. To hold that he did not
would be to give him less authority than any party or any
other attorney participating in the case.

225
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

correctly noted, seven justices agreed that "[t]he [A]ttorney

[G]eneral is constitutionally empowered to execute a settlement

agreement in litigation challenging a legislative redistricting

plan." Id. at 747.

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.89

89
I recognize, of course, that the mere fact that the
Attorney General has executed a settlement agreement on behalf of
the state will not support the entry of a consent decree. The

226
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.

district court must hold a hearing on the propriety of the
settlement and consider the objections of all interested parties.
But the Plaintiffs and the State of Texas are not asking this
court to enter a decree based on the specific settlement that the
Attorney General negotiated and approved. Rather, they are only
requesting a remand on the basis of the parties' expressed desire
to settle this lawsuit.
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).

227
 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 (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:

It has never been supposed that one party--whether an
original party, a party that was joined later, or an
intervenor--could preclude other parties from settling
their own disputes and thereby withdrawing from
litigation. Thus, while an intervenor is entitled to
present evidence and have its objections heard at the
hearing on whether to approve a consent decree, it does
not have power to block the decree merely by withholding
its consent.

Id. at 528-29.

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. 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 Public Serv.,

Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.),

cert. denied, 469 U.S. 1019 (1984); see also Clements v. League of

United Latin American Citizens, 884 F.2d at 187 (equating

228
intervenor of right with "real party in interest"). As such, they

do not have the status of an original party.90 Moreover, as I read

the record, they were permitted to intervene only to protect their

tenure as sitting elected judges.91 Thus, although I agree with the

90
Indeed, in the context of discussing the rights of a
permissive intervenor, this court has stated:

[T]he [permissive] intervenor's mere presence in an
action does not clothe it with the status of an
original party. To be sure, there are some senses in
which an "intervenor is treated as if he were an
original party and has equal standing with the original
parties." The permissive intervenor can, among other
things, move to dismiss the proceeding and can
challenge the subject matter jurisdiction of the
district court. But these participatory rights remain
subject to the intervenor's threshold dependency on the
original parties' claims, for it is equally well-
settled that "[a]n existing suit within the court's
jurisdiction is a prerequisite of an intervention,
which is an ancillary proceeding in an already
instituted suit."

Harris v. Amoco Production Co., 768 F.2d 669, 675 (5th Cir. 1985)
(emphasis added) (internal citations omitted), cert. denied, 475
U.S. 1011 (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 (1984).
91
The majority concludes that Judge Wood and Judge Entz
were also permitted to intervene in their capacity as voters of
Harris and Dallas county. The record belies this conclusion.
In her motion to intervene filed in the district court,
Judge Wood asserted:

As a state district judge, duly elected at large in
November, 1988, to a four-year term of office in an
expressly targeted county, Harris County District Judge Wood
has a direct and substantial interest in the outcome of this
suit in both her personal and her official capacity in that
she stands to have here election declared null and void and
her tenure in office drastically truncated should Plaintiffs
obtain the relief they seek.

229
majority that the intervening judges do not, at this time, have to

independently satisfy article III standing requirements,92 their

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.
92
Had the Attorney General moved to dismiss the notice of
appeal filed on behalf of the State of Texas, however, we might
be presented with another situation entirely. See Diamond v.
Charles, 476 U.S. 54 (1986). The majority does not think so,
but, in my view, there are serious questions about whether Judge
Wood and Judge Entz, as sitting elected judges, would have
standing to maintain an appeal from an order which only declares
the current method of electing judges to be illegal. Moreover,
even assuming that they were allowed to intervene as registered
voters, I have reservations about the correctness of the Eleventh
Circuit's decision in Meek v. Metropolitan Dade County, 985 F.2d
1471 (11th Cir. 1993), which held that voters had standing to
intervene and independently appeal from a district court's
decision declaring Dade County's at-large election scheme
invalid. The question in such cases is not whether white voters
such as Judge Wood and Judge Entz, who seek to defend the status
quo, would have standing to file a claim under section 2, but
whether they would have standing to attack the order of the
district court--that is, whether they have suffered an injury in
fact as a result of the district court's liability decision. See
Sierra Club v. Babbitt, 995 F.2d 571 (5th Cir. 1993) ("Where
standing to appeal is at issue, appellants must demonstrate some
injury from the judgment below.") (emphasis in original).

230
mere status in this lawsuit as permissive intervenors does not, in

my view, serve to give them "claims" or "defenses" in the sense

contemplated by Firefighters.

Nor does the proposed settlement place any "obligations" on

Judge Wood or Judge Entz. On the contrary, the settlement has

absolutely no effect on either the tenure of these judges or the

manner in which they will be elected in the future. In addition,

they are not directed to do anything under the proposed settlement.

Compare Chisom v. Roemer, 970 F.2d 1408 (where settlement at issue

required the Louisiana Supreme Court to temporarily assign judge

elected to newly created court of appeals position to the Supreme

Court), appeal dismissed by, 975 F.2d 1092 (5th Cir. 1992).

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

231
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:

In this suit the Comptroller obviously exercised his
administrative discretion and rejected [the plaintiff's]
request for refund of taxes paid under protest; otherwise
there would have been no litigation. Thereafter, upon
filing of suit, the Comptroller's statutory powers ended.
In matters of litigation the Attorney General is the
officer authorized by law to protect the interests of the
State, and even in matters of bringing suit the Attorney
General must exercise judgment and discretion, which will
not be controlled by other authorities. It was within
the discretion of the Attorney General, not that of the
Comptroller, to decide whether to appeal a case in which

232
 the State had experienced an adverse judgment in the
trial court. In such matters the Attorney General, not
the Comptroller of Public Accounts, is authorized to
perform the duties of the State's attorney. The motion
to dismiss the appeal is overruled.

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

233
"jurisdictional party,"93 must consent to a remand before the motion

to remand is granted.94

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

93
As discussed supra Part I.A.1., Chief Justice Phillips
was apparently named as a Young defendant--in order to get around
the Eleventh Amendment bar to suits brought directly against the
state. To come within the rule of Young, however, the officials
who are named as defendants "must have some connection with the
enforcement" of the state law being challenged. See Young, 209
U.S. at 157 (emphasis added). Otherwise, the named official has
only been made "a party as a representative of the state" in an
"attempt[] to make the state a party." Id. When officials who
are not charged with enforcing the challenged state law are
joined as parties, therefore, the proper course is dismissal.
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.
94
I recognize, of course, that the district court would
have to conduct an evidentiary hearing on the proposed settlement
and that Chief Justice Phillips' objections to the proposed
settlement would have to be fully aired. The point is that, at
this time, all the parties are seeking is a remand; they are not
seeking this court's stamp of approval on the current proposed
settlement.

234
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, §

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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 opinion95--there is a crucial distinction between

this case and Chisom: In Chisom, the district court had found no

section 2 liability; in this case, by contrast, the district court

found that the Texas' method of electing district court judges in

county-wide elections violated section 2 in each of the nine target

counties.

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,

95
An argument can be made that the settlement proposed in
the Chisom case--a settlement which had the effect of temporarily
adding an eighth seat to the Louisiana Supreme Court--offended
the Louisiana Constitution. See LA. CONST. art. V, § 3 ("The
supreme court shall be composed of a chief justice and six
associate justices, four of whom must concur to render
judgment."). As the majority correctly notes, Louisiana's effort
to amend the constitution to add an extra position had failed.
See Majority Opinion at 30 n.19. The point is that, before
remanding, we never considered this question in Chisom.

236
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:

Thus, more is necessarily involved than merely
ascertaining whether the parties have consented to an
ultimate result which is not of itself illegal,
unreasonable or unfair. Absent a properly grounded
judicial determination that the present charter
provisions are illegal, the consent of the parties
provides an insufficient basis on which to judicially
ordain a different system of council election and
composition.

748 F.2d at 956-57 (emphasis added).96

96
Our discussion in Overton, happily enough, is consistent
with the Texas Supreme Court's decision in Terrazas. In that
case, a plurality of the members of the Texas Supreme Court

237
 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.

recognized that a state district court could enter a consent
decree, based on a settlement between the Attorney General and
the plaintiffs, which effectively reapportioned the state
legislative districts. It noted, however, that the entry of such
a consent judgment required some procedural regularity (i.e., the
state district judge would have to carefully consider the many
interests involved, give due deference to the legislature to
rectify its own statutes, and give due regard for the effect of
the order on the election process). See 829 S.W.2d at 718. The
plurality in Terrazas also suggested that court-ordered
reapportionment based on such a settlement would be prohibited
absent a judicial determination that the current statute was
invalid. See id. at 722. Once there is a judicial determination
that the current statute is invalid, under the plurality opinion
in Terrazas, a state district court would be able to enter a
consent decree based on a settlement agreement executed by the
Attorney General. In short, neither Overton nor Terrazas
requires a final, non-appealable finding of liability before a
court can override a provision of state law.

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 Also, because this settlement has been approved by a majority

of both houses of the Texas legislature, I think that the motion to

remand should be taken more seriously than the majority sees fit to

do. In confronting an analogous situation in Wise v. Lipscomb, 437

U.S. 535, 548 (1978), the Supreme Court approved the decision of

the Dallas City Council to reapportion itself in response to a

district court finding that the then-existing at-large election

system violated the Constitution--despite the fact that the city

council appeared to lack the power to do so under state law. In a

concurring opinion, four Justices explained why a federal court was

required to show deference to the plan:

The essential point is that the Dallas City Council
exercised a legislative judgment, reflecting the policy
choices of the elected representatives of the people,
rather than the remedial directive of a federal court .
. . . This rule of deference to local legislative
judgments remains in force even if . . . our examination
of state law suggests that the local body lacks the
authority to reapportion itself.

Id. at 548. (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'

239
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

240
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 Texas legislature's official expression of its desire

to see this case settled.

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

241
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

framework 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 27.

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

dissentSQand for most if not all of the same reasons.

242