Campos v. City of Houston

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 95-20740

JESSE CAMPOS; W. R. (RESENDEZ)
MORRIS; MEXICAN AMERICAN BAR
ASSOCIATION OF HOUSTON,
Plaintiffs-Appellants,
versus

CITY OF HOUSTON, ET AL.,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Texas
May 19, 1997

Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:
Jesse Campos, W.R. (Resendez) Morris, and the Mexican American Bar Association

of Houston appeal the grant of summary judgment in favor of the City of Houston, et al., in
this voting rights case. For the reasons assigned, we affirm.
 BACKGROUND
Houston redrew its single-member districts for city council elections based on 1990

census data which disclosed that Hispanics made up 27.6 percent of the total population and
24.1 percent of the voting-age population. The redistricting plan included a mayor and
fourteen council members elected from nine single-member districts with five elected at

large. Houston voters approved the plan in August 1991.1
Since 1991 Houston consistently has elected Hispanic candidates from its two
majority Hispanic voting-age population districts. In 1993 an Hispanic incumbent was

reelected at large. In 1995 two Hispanic candidates were elected at large. Nevertheless,

plaintiffs contend that eliminating the at-large seats and creating additional single-member

districts would permit the Hispanic community to elect more city council members. Their
evidence indicates that four districts could be drawn in which voting-age Hispanics would

be numerous enough to influence the election results.

The district court concluded that the plaintiffs failed to establish a genuine issue of

material fact on the threshold requirements of a vote dilution claim and granted summary
judgment in favor of Houston. The plaintiffs timely appealed.

1
The Attorney General objected to the plan, stating that it violated section 5 of the Voting Rights
Act. 42 U.S.C. § 1973c (1994). The district court ordered the election to proceed. A panel of this
court vacated that order because the city failed to obtain preclearance from the Department of Justice;
however, the election results were not set aside. Campos v. City of Houston, 968 F.2d 446 (5th
Cir. 1992), cert. denied, 506 U.S. 1050 (1993). The section 5 challenge is not a part of the instant
appeal.

2
 ANALYSIS
I. Standard of Review

We review the district court’s grant of summary judgment de novo,2 construing all
evidence in the light most favorable to the nonmoving party. Summary judgment is
appropriate only when there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.3
II. Establishing a Vote Dilution Claim
In 1982 Congress amended section 2 of the Voting Rights Act of 1965 to provide:

(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 . . . .
(b) A violation of subsection (a) . . . 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) . .
. 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.4

In Thornburg v. Gingles, the Supreme Court applied section 2 to an at-large electoral
scheme and decided that Congress had intended to eliminate the requirement of showing
discriminatory intent in challenges to electoral mechanisms.5 The amendment re-established

2
Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993).
3
Fed. R. Civ. P. 56(c).
4
42 U.S.C. § 1973 (1994).
5
478 U.S. 30 (1986).
3
the “results test,”6 which focuses on whether the challenged electoral practice prevents the
plaintiffs from having an equal opportunity to participate in the political process and to elect

candidates of their choice. According to the Court:
The essence of a § 2 claim is that a certain electoral law, practice, or structure
interacts with social and historical conditions to cause an inequality in the
opportunities enjoyed by black and white voters to elect their preferred
representatives. This Court has long recognized that multimember districts
and at-large voting schemes may “‘operate to minimize or cancel out the
voting strength of racial [minorities in] the voting population.’” The theoretical
basis for this type of impairment is that where minority and majority voters
consistently prefer different candidates, the majority, by virtue of its numerical
superiority, will regularly defeat the choices of minority voters.7

The Court noted that several factors could be probative of a section 2 violation. These

factors were derived in part from our en banc decision in Zimmer v. McKeithen:8
(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,

6
See White v. Regester, 412 U.S. 755 (1973).
7
Gingles, at 47 (quoting Burns v. Richardson, 384 U.S. 73, 88 (1966) (quoting Fortson
v. Dorsey, 379 U.S. 433, 439 (1965))).
8
485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd sub nom. East Carroll Parish Sch. Bd.
v. Marshall, 424 U.S. 636 (1976) (per curiam). See S. REP. NO. 417, 97th Cong., 2d Sess.
28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07.
4
 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.9
Two other factors may establish a violation: “‘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’ [and] ‘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.’”10 Most importantly, the Court articulated three preconditions to establishing a vote

dilution claim:
First, the minority group must be able to demonstrate that it is sufficiently
large and geographically compact to constitute a majority in a single-member
district. . . . Second, the minority group must be able to show that it is
politically cohesive. . . . Third, the minority must be able to demonstrate that
the white majority votes sufficiently as a bloc to enable it--in the absence of
special circumstances, such as the minority candidate running unopposed, . .
. usually to defeat the minority's preferred candidate.11

Failure to establish any one of these threshold requirements is fatal.12 In the instant

case, the district court found that plaintiffs failed to create a genuine issue of material fact

on the first and third Gingles factors.
A. Is the minority group sufficiently large and geographically compact to
constitute a majority in a single-member district?

9
Gingles, 478 U.S. at 36-37.
10
Id. at 37.
11
Id. at 50-51 (citations omitted).
12
Overton v. City of Austin, 871 F.2d 529, 538 (5th Cir. 1989).
5
 The district court concluded that plaintiffs could not increase the number of Hispanic
council members by redistricting. At time of trial three Hispanics served on the city council

-- two were elected from single-member districts and one was elected at large. When this
appeal was orally argued, there were four Hispanic council members--two elected from
single-member districts and two elected at large.

This appeal requires us to confront directly the relevance of citizenship to a vote
dilution claim. The Supreme Court thus far has declined to address this issue.13 Houston’s
1990 census evidence shows that 45.8 percent of voting-age Hispanic Houston residents were

noncitizens and ineligible to vote. By comparison, 2.2 percent of the non-Hispanic Anglo

voting-age population and 1.6 percent of the non-Hispanic Black voting-age population were

noncitizens. In communities in which different racial and ethnic groups have approximately
equal percentages of noncitizens this data would be insignificant. In Houston, however, the

variation is quite marked.

According to the defendants, only 15.3 percent of the total citizen voting-age

population is Hispanic. Houston maintains that Hispanics are presently over-represented on
the city council because they hold four of fourteen seats, or 28.5 percent. The defendants’

expert witness concluded that redistricting could not boost the Hispanic community’s

representation on the city council. Plaintiffs contend that their evidence contradicts
Houston’s predictions about redistricting. Their expert opined that “[w]hile I believe that the
City projections are in the general ball park, my reading of the information is different from

that of the City’s expert. Thus, I am unable to confirm the accuracy of the projections which
the City makes from these data.” He explained that citizenship data is not reliable because

13
Johnson v. DeGrandy, 512 U.S. 997 (1994) (assuming without deciding that the first
Gingles condition was satisfied).
6
high illiteracy rates and the prevalence of Spanish as a primary language prevent many
Hispanics from answering census questions accurately. Additionally, rapid growth and the

relative youth of Houston’s Hispanic community complicate determining the exact number
of Hispanic citizens.
B. Use of citizenship data in the Gingles analysis.

Plaintiffs urge us to reverse the district court and abandon the examination of
citizenship data as a factor for a vote dilution claim. They contend that unlike general census
data, which the Supreme Court has determined to be not inherently unreliable despite its

significant shortcomings,14 citizenship data is derived from a 12 percent sampling of the

population as opposed to a 100 percent head count. Moreover, citizenship information is

unavailable until several years after the release of general census data, which could hinder
redistricting.

Despite these limitations, we decline to reject citizenship as a relevant factor in the

Gingles analysis. The plain language of section 2 of the Voting Rights Act makes clear that

its protections apply to United States citizens.15 As we observed in Brewer v. Ham:16
The raison d’etre of Thornburg and of amended § 2 is to facilitate
participation by minorities in our political processes, by preventing dilution of
their votes. Only voting age persons can vote. It would be a Pyrrhic victory
for a court to create a single-member district in which a minority population
dominant in absolute, but not in voting age numbers, continued to be defeated
at the polls.17

14
Gaffney v. Cummings, 412 U.S. 735 (1973).
15
“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 . . . .” 42 U.S.C. § 1973(a) (emphasis added).
16
876 F.2d 448 (5th Cir. 1989).
17
Id. at 452 (quoting Overton, 871 F.2d at 542 (Jones, J., concurring)).
7
Similarly, only voting-age persons who are United States citizens can vote. Based on the

available data, almost half of Houston’s Hispanic voting-age population is ineligible to vote.
As the Supreme Court explained in Gingles: “Unless minority voters possess the potential
to elect representatives in the absence of the challenged structure or practice, they cannot

claim to have been injured by that practice.”18 Houston’s current electoral scheme has
enabled its Hispanic community to elect city council members in greater than proportional
numbers, based on its citizen voting-age population.

For these reasons, we conclude that plaintiffs have failed to establish a genuine issue

of material fact on the first part of the Gingles analysis. Because all three conditions must

be met to establish a vote dilution claim, it is unnecessary for us to evaluate the second and
third elements of the test.

CONCLUSION

We hold that courts evaluating vote dilution claims under section 2 of the Voting

Rights Act must consider the citizen voting-age population of the group challenging the
electoral practice when determining whether the minority group is sufficiently large and

geographically compact to constitute a majority in a single-member district.

The judgment of the district court is AFFIRMED.

18
Gingles, 478 U.S. at 50 n.17.
8