Rodriguez v. Bexar County Texas ( 2004 )

  •                                                        United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                         REVISED SEPTEMBER 24, 2004
                                                               September 17, 2004
                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                NO. 03-51119
                        BEXAR COUNTY, TEXAS, ET AL,
                            BEXAR COUNTY, TEXAS,
              Appeals from the United States District Court
                    for the Western District of Texas
    Before JONES, DENNIS and PICKERING, Circuit Judges.
    EDITH H. JONES, Circuit Judge:
              This case arises out of Bexar County’s redistricting of
    its Justice of the Peace and Constable Precincts following the 2000
    national census.   The plaintiffs contended that the redistricting
    plan impermissibly dilutes the votes of Hispanics in violation of
    Section 2 of the Voting Rights Act and that it violates Article V,
    Section 18 of the Texas Constitution.    The district court ruled in
    favor of the plaintiffs on their federal law claim and denied
    relief    on    the    state      constitutional        claim.      After   carefully
    reviewing the evidence adduced at trial, we hold that there is no
    legal or factual basis for the court’s finding of vote dilution and
    that the plaintiffs are entitled to no relief under federal law.
    We reverse in part, affirm in part and vacate the district court’s
    injunctive relief.
                                        I.    BACKGROUND
                   In   August     2001,     Bexar    County’s    Commissioners        Court
    adopted, pursuant to the Texas Constitution, a redistricting plan
    for its Justice of the Peace and Constable Precincts (“Justice
    Precincts”).          See TEX. CONST. art. V, § 18.               The major changes
    effected by the 2001 redistricting plan were the reduction of the
    number of precincts from five to four, and the elimination of one
    constable position.            The plan eliminated Precinct Five, which
    elected one Justice of the Peace and one Constable, but it added
    one new Justice of the Peace position to Precinct One, thereby
    leaving   the       total    number      of   Justice    of   the   Peace   positions
    unchanged.          Constable      Tejeda’s       Precinct       Five   position    was
    eliminated. Under both the current and former redistricting plans,
    there are one majority-black and two majority-Hispanic districts.
    The population of now-extinct Precinct Five was transferred into
    revised   Precincts         One   and     Two.     The    redistricting     plan    was
    pre-cleared by the Department of Justice’s Civil Rights Division.
                Just after elections had been held under the new plan,
    the plaintiffs filed suit against Bexar County alleging that the
    plan violated Sections 2 and 5 of the Voting Rights Act and
    ARTICLE V, SECTION 18 of the Texas Constitution.1          The district court
    conducted a bench trial and ruled in favor of the plaintiffs on
    their Section 2 vote dilution claim.                As a remedy, the court
    ordered the results of the 2002 elections set aside,2 and the judge
    reinstated    the   original      five-precinct    plan,   and,    inter     alia,
    ordered Bexar County to re-fund Constable Tejeda’s post.                      This
    court stayed the court’s remedy pending Bexar County’s appeal.
                                   II.    DISCUSSION
    A.    Voting Rights Act Claim
                What    the   plaintiffs        precisely   assert    is   that    the
    elimination of Precinct Five and its consolidation in the other
    redrawn districts has diluted the influence of Hispanic votes in
    Precinct Two.       It is surely no accident, however, that former
    Constable     Tejeda,     whose      position     was   eliminated      in     the
    redistricting, is the lead plaintiff.
                Section 2 of the Voting Rights Act proscribes vote
    dilution whereby a class of citizens has “less opportunity than
                The Section 5 claim was rejected by a three-judge panel in April 2003
    and is no longer at issue.
                Setting aside an election is a drastic remedy.          See Bell v.
    376 F.2d 659
    , 662 (5th Cir. 1967); and Cook v. Luckett, 
    735 F.2d 912
    921-22 (5th Cir. 1984). Such a remedy should only be imposed where timely pre-
    election relief is either denied or precluded. See Toney v. White, 
    488 F.2d 310
    313-315 (5th Cir. 1973) (en banc); and Saxon v. Fielding, 
    614 F.2d 78
    , 79-80 (5th
    Cir. 1980).
    other members of the electorate to participate in the political
    process and to elect representatives of their choice.”              42 U.S.C.
    § 1973. This court applies a two-step framework in analyzing
    Section 2 claims.      NAACP v. Fordice, 
    252 F.3d 361
    , 365 (5th Cir.
    2001).    First, plaintiffs challenging a redistricting plan must
    satisfy the preconditions for a Section 2 claim set forth by the
    Supreme Court in Thornburg v. Gingles, 
    478 U.S. 30
    106 S. Ct. 2752
    92 L. Ed. 2d 25
     (1986).3         Id.    Second, the plaintiffs must
    prove that based on the “totality of the circumstances,” the
    challenged plan results in the denial of the right to vote based on
    color or race in violation of Section 2.          Fordice, 252 F.3d at 366.
    To meet the threshold Gingles test, the plaintiffs bear the burden
    to show, by a preponderance of the evidence, that:                    (1) the
    affected minority group is sufficiently large and geographically
    compact to constitute a voting age majority in a district; (2) the
    minority group is politically cohesive; and (3) the majority votes
    sufficiently as a bloc that it is able — in the absence of special
    circumstances — usually to defeat the minority group’s preferred
    candidate.    Id. (citing Gingles, 478 U.S. at 50-51, 106 S. Ct. at
                As the district court recognized, the one-person, one-vote
    requirement of Baker v. Carr, 
    369 U.S. 186
    82 S. Ct. 691
    7 L. Ed. 2d 663
    (1962), does not apply to judicial districts like Justice Precincts. Wells v.
    347 F. Supp. 453
    , 454 (M.D. La. 1972) aff’d 
    409 U.S. 1095
    However, the district court, at various points in its opinion, expressed concern
    regarding the application of the Gingles threshold test to single-member
    districts that are not required to comply with the one-person, one-vote
    requirement. Since Section 2 includes judicial selections, Chisom v. Roemer, 
    501 U.S. 380
    , 404, 
    111 S. Ct. 2354
    , 2369, 
    115 L. Ed. 2d 348
     (1991), we are at a loss
    as to what other standard than Gingles might apply.
                In reviewing a district court’s decision regarding an
    alleged violation of Section 2 of the Voting Rights Act, this court
    analyzes the legal standards applied by a district court de novo,
    id. at 364, and the factual findings for clear error.                  Gingles
    emphasized that the proper assessment of vote dilution claims is
    “peculiarly dependent upon the facts of each case” and requires “an
    intensely local appraisal of the design and impact of the contested
    electoral mechanisms.”      478 U.S. at 79, 106 S. Ct. at 2781.           The
    clear error standard precludes reversal of a district court’s
    findings unless we are “left with the definite and firm conviction
    that a mistake has been committed.”        Anderson v. City of Bessemer,
    470 U.S. 564
    , 573, 
    105 S. Ct. 1504
    , 1511, 
    84 L. Ed. 2d 518
    We may not reverse for clear error so long as the district court’s
    findings    are   “based   on   a   plausible   account   of   the   evidence
    considered against the entirety of the record.”           Fordice, 252 F.3d
    at 365.
                The parties do not dispute that the plaintiffs satisfy
    the first two prongs of the Gingles threshold inquiry:               Hispanics
    are sufficiently numerous and geographically compact to constitute
    a voting age majority in Justice Precinct Two, and they are
    politically cohesive.       The evidence adduced before the district
    court focused on Gingles’ third inquiry, i.e., the ability of
    Hispanics to elect their preferred candidate under the 2001 plan in
    reapportioned Justice Precinct Two.4         The plaintiffs’ argument is
    that   although    Precinct   Two    retains    a     majority   of    Hispanic
    residents, the majority is narrower than that in former Precinct
    Five and, having been diluted, is barely sufficient to ensure
    Hispanic   electoral    success.       Since    neither    party      presented
    significant evidence regarding the other redistricted precincts,
    our analysis is confined to Justice Precinct Two.
               The critical question before the district court, and now
    on appeal, is whether the plaintiffs met their burden of proof on
    the third Gingles factor.           Lacking such proof, the plaintiffs
    cannot succeed.     See, e.g., Magnolia Bar Ass’n, Inc. v. Lee, 
    994 F.2d 1143
    , 1148 (5th Cir. 1993).
               After carefully reviewing the record, and being cognizant
    of the deference owed to the district court, we have concluded that
    the district court made substantial legal and factual errors in
    evaluating the plaintiffs’ evidence.         Principally, but not solely,
    the court erred in ignoring the defendants’ reconstituted election
    analysis, and it erred in applying the “special circumstances” test
    to ignore the consistent electoral victories of Hispanic candidates
    in Precinct Two.    As a result, the district court clearly erred in
    ultimately    concluding      that     the     2001     redistricting      plan
    impermissibly diluted the Hispanic vote in Bexar County.
                All references in this opinion to Justice Precinct Two, unless
    otherwise noted, refer to the newly redistricted Justice Precinct Two.
          1.    Reconstituted Election Analysis
                Because, at the time of trial, only one election had been
    held within the new precinct boundaries created by the 2001 plan —
    the 2002 election for Bexar County Constable in Justice Precinct
    Two — experts for both sides agreed that it was appropriate to look
    to exogenous races to determine whether racial bloc voting took
    place in the revised Justice Precinct Two.5                In doing so, the
    experts employed reconstituted election analysis to evaluate the
    results of 12 exogenous races for other elected posts that took
    place in 2002.6     Both experts agreed that these races were the most
    relevant to determining whether Anglos voted as a bloc usually to
    defeat the Hispanic candidate of choice in Precinct Two.7                     In
    addition, the plaintiffs’ expert responded to the defendant’s
    expert’s analysis of other prior election cycles and agreed that
    the results from the 2000 elections also had substantial probative
    value.     Not surprisingly, the expert opinions conflicted on the
                This court has repeatedly endorsed the analysis of exogenous
    elections in Section 2 vote dilution cases. See Rangel v. Morales, 
    8 F.3d 242
    247 (5th Cir. 1993); NAACP v. Fordice, 
    252 F.3d 361
    , 370 (5th Cir. 2001).
                See Johnson v. Miller, 
    864 F. Supp. 1354
    , 1391 (S.D. Ga. 1994) (per
    curiam) (“Statistically speaking, reconstituted election results from precincts
    within a certain district, actual prior election results from a certain district,
    and frequency distributions are the primary methods used to estimate the
    percentages needed to give [minority] voters an equal opportunity to elect a
    candidate of their choice.”) aff’d Miller v. Johnson, 
    515 U.S. 900
    115 S. Ct. 2475
    132 L. Ed. 2d 762
                The defendant’s expert, Dr. John R. Alford, also examined reconsti-
    tuted election results from nine races from the 2000 general election and eight
    races from the 1998 general election, as well as two races from the 1998
    Democratic primary election and seven races from the 2002 Democratic primary
    election. See Ex. D-9.
    critical point.        Compare Ex. D-9 with Exs. P-108, P-146.            The
    district court, noting these contrary conclusions, determined that
    the reconstituted election analyses presented by both sides were
    insufficient and unpersuasive, and opted to consider other evidence
    to make its determination as to the third Gingles factor.
                The district court discarded the reconstituted election
    evidence offered by both parties for two reasons. First, the court
    found the reconstituted election methodology to be inherently
    unreliable because including or excluding what the district court
    believed were a “handful” of “over and under” ballots could lead to
    substantially different conclusions on the ultimate question of
    racial bloc voting.       In addition, the court found that “special
    circumstances” in both the 2000 and 2002 election cycles made these
    elections unreliable for the purpose of evaluating the validity of
    the 2001 redistricting plan.         Unfortunately, the district court
    clearly erred in both determinations.
                Reconstituted election analysis is a relatively simple
    method that extracts actual election results from a variety of
    statewide and local races that subsume the area being analyzed and
    determines,   precinct-by-precinct       within   the   new   district,   the
    racial composition of the vote and the “winner” within the new
    district.     This method of aggregation allows a researcher to
    determine   how   an    individual   candidate     performed    within    the
    boundaries of the target district even though the actual election
    covered a different geographical area.
                The defendant’s expert, Dr. John Alford, employed this
    standard method     in    examining     13    races   from    the    2002    general
    election.    The plaintiffs’ expert, Dr. Henry Flores, also employed
    a similar method — with one crucial difference:               in calculating the
    percentage of the vote received by each candidate, Dr. Flores used
    the correct numerator — the total votes cast for each candidate
    within the    boundaries       of   Justice    Precinct      Two.        However,   in
    calculating the appropriate denominator, Dr. Flores did not use the
    total votes cast in each race within Precinct Two, but rather used
    the total ballots cast in Precinct Two in the overall election.
    This approach systematically misrepresents the percentage of the
    vote   obtained    by   each   candidate.       It    does    so    by    improperly
    including “over-votes” and “under-votes” in the denominator of the
    equation. Over-votes are ballots where a voter casts more than one
    vote for an office and thus invalidates his vote for that office.
    Under-votes are those ballots where a voter does not mark any
    candidate for a given office.          Neither over-votes nor under-votes
    “count”   toward    determining       victory    in    a     race   because     they
    represent, respectively, either a “spoiled ballot” or an uncast
    ballot for that particular race.              The ballot remains valid, of
    course, for those races and only those races in which it was
    properly marked.        But to use such ballots in the denominator for
    calculating the percentage of the vote received in a given race,
    when the votes from those ballots would not have affected the race,
    is simply incorrect and results in skewed and inaccurate vote
    percentages. Dr. Flores’s report erred in this manner.                Based on
    the inaccurate percentages he calculated, Dr. Flores concluded that
    only eight of the 13 Hispanic candidates of choice “won” their
    races within the boundaries of Justice Precinct Two.8
                At trial, Bexar County’s counsel carefully dissected this
    error, leading Dr. Flores to admit, contrary to his written report,
    that the proper calculation would have shown that 12 out of 13
    Hispanic    candidates     of   choice      actually   “won”   the   exogenous
    elections within the confines of Justice Precinct Two.9               ROA vol.
    11 at 81.
                To its credit, the district court recognized this fatal
    flaw in Dr. Flores’s methodology.              However, instead of simply
    discarding Dr. Flores’s flawed findings and relying on the proper
    calculations made by the defendant’s expert, the district court
                In using the term “won,” Dr. Flores apparently means that the
    candidate obtained more than 50 percent of the votes cast based on his flawed
    calculation methods. Beyond the simple arithmetic error made by Dr. Flores, the
    use of a 50 percent threshold may, in some cases, misrepresent the actual
    percentage necessary to win because it fails to account for the potential
    presence of a third candidate. As a result, even if Dr. Flores had employed the
    proper denominator, his approach would not accurately indicate which candidate
    actually “won,” because while Dr. Flores is correct that a candidate “wins” if
    he obtain more than 50 percent of the vote in a two-person, head-to-head race,
    a candidate may win a three-way race with as little as 34 percent of the vote
    (assuming the other two candidates split the vote evenly). For example, in two
    of the races analyzed by both experts in the 2002 election — the Governor’s race
    and the race for Court of Criminal Appeals, Place 3 — the winning candidate
    within new Justice Precinct Two, i.e. the candidate who got the most votes within
    the target area, nonetheless garnered less than 50 percent of the total votes
    cast in that race within the target area.         See Ex. D-9.    In this sense,
    Dr. Flores’s report not only improperly derives the candidates’ vote percentages,
    but also misrepresents the threshold portion of the vote necessary to win in a
    given race.
                Indeed, even the one loss was extremely close, with a difference of
    only 26 votes out of a total of 79,888 votes cast in that race. See Ex. D-9,
    table 4.
    held that Dr. Flores’s errors demonstrated “how easily reconsti-
    tuted     election     analysis      can     be    abused      under     the       best   of
    circumstances.”         As    a    result,      the    district      court     found      the
    “evidence generated from these reconstituted election analyses to
    be largely unpersuasive.”            The district court then inexplicably
    threw out the defendant’s expert evidence based on the flawed
    methodology employed by the plaintiffs’ expert.
                   The district court first erred in suggesting that the
    difference between the two expert analyses arose from the inclusion
    of a “handful of ballots.”           To take just one example, in the Garza-
    Wilborn race for Justice Precinct Two Constable, Dr. Flores used
    the    total    ballots     cast    in    the     election     —     83,968    —    as    the
    denominator in his equation to determine that Garza received 44.6
    percent    of    the   vote.        See    ROA    vol.    11    at    76.10        However,
    Dr. Flores’s methodology improperly included 6,372 under-votes and
    24    over-votes     from    that   election.          Id.      These    votes,       taken
    together,      constitute     7.6   percent       of   the     ballots    used      in    the
    denominator of Dr. Flores’s equation.                    Omitting these uncounted
    ballots from the calculation, as should have been done, reveals
    that Garza actually obtained 48.3 percent of the vote.                             See Ex.
    D-9.    Thus, we disagree that the mistakenly included ballots were
                The exact numbers contained in defense exhibit D-13 vary slightly
    from the numbers in the trial transcript apparently because of the way that state
    law requires early votes from small precincts to be reported. These differences
    were discussed at trial and do not make a significant difference in the
    percentages discussed above. See ROA vol. 11 at 74-76, Ex. D-13.
    a mere “handful.” On the contrary, Dr. Flores’s calculation errors
    were significant and systematic, and produced a substantially
    flawed analysis.      These erroneous results do not cast doubt on the
    methodology of reconstituted election analysis, but on the quality
    of the particular calculations.11
                The district court, though appropriately disturbed at the
    serious errors made by the plaintiffs, chose to toss out all of the
    reconstituted election evidence put forward by both sides.               But as
    the defendant’s brief points out, such an approach is similar to
    determining that mathematics is a flawed science simply because one
    expert testifies that two plus two is four and another expert
    testifies that two plus two is five.                The court should have
    considered Dr. Flores’s errors as undermining the weight of his
    testimony, not that of the defendant’s expert. See Rollins v. Fort
    Bend Indep. Sch. Dist., 
    89 F.3d 1205
    , 1219 (5th Cir. 1996) (holding
    that numerous errors by an expert witness can make all of that
    expert’s    findings    and   theories      unreliable).      An   independent
    assessment of the validity of the defendant’s expert testimony
                 We note that this is not the first time that this court has found
    substantial errors in Dr. Flores’s work. See Rollins v. Fort Bend Indep. Sch.
    89 F.3d 1205
    , 1214-15 (5th Cir. 1996) (“FBISD demonstrated inconsistencies
    in Dr. Flores’s data and showed that some of Dr. Flores’s methodologies made his
    results inaccurate or unreliable. Dr. Flores manually corrected exhibits while
    testifying and admitted to other errors FBISD and the district court identified.
    Dr. Flores’s testimony also indicated that his analysis was incomplete and
    slanted in support of the black plaintiffs. . . . Dr. Flores . . .[was] forced
    to concede that several of [his] opinions were either suspect or incorrect.”).
    In Rollins, this court upheld the district court’s decision to discredit
    Dr. Flores’s findings and theories on the basis of numerous errors in his
    analysis. Id. at 1219.
    would then have shown that analysis completely uncontradicted in
    its findings that the Hispanic candidate of choice obtained more
    votes within new Justice Precinct Two in 12 out of the 13 races
    identified by both experts as central to the court’s Gingles
    analysis.   Moreover, when the 2000 general election is included in
    this analysis, the defendant’s uncontradicted expert testimony
    indicates that the Hispanic candidate of choice would have won 21
    of the 22 most recent races within Justice Precinct Two.
                These results contradict the district court’s deter-
    mination that the Anglo bloc voting serves usually to defeat the
    Hispanic candidate of choice in Justice Precinct Two. The district
    court’s decision to disregard these results constitutes clear
    error.    This error prevented the district court from considering
    the data that both sides agreed were the most probative on the
    third Gingles factor, and thus, strikes at the core of the district
    court’s ultimate conclusions.
         2.     Evaluating “Special Circumstances”
                In its initial opinion, the district court acknowledged
    that both sides focused on expert testimony regarding the 2000 and
    2002 elections and concurred on the importance of these elections
    in   proving    the    legality   of    the   2001    redistricting   plan.
    Nevertheless,    the   court   held    that   these   elections   exhibited
    “special circumstances” that made “an accurate extrapolation of the
    redistricting plan’s effect . . . impossible.” The district court
    identified as the relevant “special circumstances” the presence of
    a Hispanic candidate, Tony Sanchez, a Democrat running for Governor
    in 2002, and the presence of George W. Bush, at the time the
    Republican Governor of Texas, as a candidate for President in 2000.
                The Supreme Court has cautioned that “special circum-
    stances . . . may explain minority electoral success in [an
    otherwise] polarized contest,” and that such aberrational victories
    do not necessarily disprove racial vote dilution.                  Gingles, 478
    U.S. at 57, 106 S. Ct. at 2770.                The district court, however,
    misapplied the special circumstances analysis in a manner contrary
    to that contemplated by the Supreme Court and this circuit’s
                As    explained    in    Gingles,    the   special     circumstances
    analysis was designed to prevent defendant jurisdictions from
    arguing that a minority candidate’s occasional victory in an
    otherwise racially polarized electorate defeats a vote dilution
    claim.     Id.    To this end, the Court listed several factors that
    might contribute to the unusual success of an individual minority
    candidate — the absence of an opponent, incumbency, or utilization
    of “bullet voting” procedures.           Id.     While not exhaustive, this
    list comprises circumstances that might explain a victory for a
    minority    candidate     in   a    polarized    district.         This   circuit
    accordingly holds that while special circumstances may be used to
    “explain    a    single   minority    candidate’s      victory,”    the   Supreme
    Court’s comment regarding such circumstances “cannot be transformed
    into a legal standard which requires the court to force each and
    every victory of several minority candidates to fit within a
    prescribed   special   circumstance.”   Rollins,   89   F.3d   at   1213
    (emphases added).    The Rollins court went on to note that “[e]very
    victory [of a minority candidate] cannot be explained away as a
    fortuitous event.”     Id.
              In the present case, the district court employed the
    Gingles special circumstances analysis not to explain the victory
    of an individual minority candidate, but rather to explain away the
    consistent success of Hispanic candidates in a number of races over
    two general election cycles.      This was clear error.        As noted
    above, reconstituted election analysis — performed with the proper
    arithmetic — demonstrates that the Hispanic candidate of choice won
    21 of 22 contests during the 2000 and 2002 general elections within
    Justice Precinct Two.
              Moreover, even if “special circumstances” could be used
    to explain away all of the minority candidate victories, the
    evidence fails to provide any basis for such a finding in this
    case.   The district court reasoned that in the 2000 elections,
    George W. Bush’s candidacy for President likely affected both
    Hispanic and overall voter turnout, but the court failed to explain
    what the “special circumstances” of Bush’s candidacy might have
    been.   Without evidence, it is impossible to tell whether Bush’s
    candidacy helped or harmed Hispanic-favored candidates in 2000. We
    do not doubt that Bush’s candidacy had some effect on turnout
    within Texas.          The plaintiffs’ expert believed that Hispanic
    election success was more difficult in 2000.                  However, because no
    other evidence described the magnitude or nature of this effect,
    the    court    clearly     erred   in   speculating        how   Bush’s   candidacy
    explained the overwhelming success of Hispanic-favored candidates.12
                   Similarly,     the    district      court      clearly      erred    in
    determining that the presence of Tony Sanchez at the top of the
    ticket in 2002 was a special circumstance that explained the
    success of Hispanic candidates in that election cycle. No evidence
    presented at trial tended to indicate that Hispanic candidates were
    more    likely    to   succeed      as   a    result   of   Sanchez’s      candidacy.
    Instead, the plaintiffs’ expert testified that he had not conducted
    a study regarding the effect of Sanchez’s candidacy, or what he
    termed “racist” anti-Sanchez ads, on Hispanic turnout, and he
    opined that there was “no way of telling the effects of how those
    ads played out.”        ROA vol. 11 at 135-36.          Indeed, the plaintiffs’
    expert went on to testify specifically that Sanchez’s candidacy and
    the related ads “could have increased turnout on both sides.”                      Id.
    at 136.
                In contrast, the plaintiffs’ expert testified that the 2000 election
    represented an extremely favorable electoral situation for Republicans. See ROA
    vol. 11 at 67. Given that the Hispanic candidate of choice — according to both
    parties’ experts — is the Democratic candidate, regardless of ethnicity, it also
    makes little sense to use this “special circumstance” to explain the success of
    Hispanic-favored candidates. See id. at 64 (plaintiffs’ expert agreeing with
    defense counsel’s assertion that “in Precinct 2 general elections, the Hispanic
    candidate of choice is almost certain to be a Democrat” and that “Hispanic
    Republicans were not the candidate[s] of Hispanic choice. . . . Hispanics, when
    given a choice, voted for the Democrat[.]”).
                The lack of supporting evidence wholly undermines the
    district court’s finding that these elections were not sufficiently
    reliable to provide any insight into the polarized voting inquiry.
    The district court’s finding in this regard is clearly erroneous.
                Because     they    are    not   vulnerable      to   a    special
    circumstances attack and were not otherwise disputed, the 2000 and
    2002 election results, as properly reconstituted, have substantial
    probative value on the question whether the plaintiffs met the
    third Gingles precondition. The evidence of overwhelming electoral
    success for Hispanic-favored candidates over a wide range of
    offices and in two separate general election cycles, in both a
    Presidential and a non-Presidential election year, leads to the
    firm and definite conclusion that the district court clearly erred
    in finding that Anglos vote as a bloc usually to defeat the
    Hispanic candidate of choice within new Justice Precinct Two.
    Recent voting patterns and trends suggest that Hispanics will
    continue to enjoy substantial success in electing the candidates
    they support in Justice Precinct Two.13
          3.    Other Statistical Evidence
                After erroneously discarding the probative reconstituted
    election analyses, the district court purported to rely on the
                While statistical evidence is not always conclusive in a racial
    polarization inquiry, where the record supports no other conclusion than that
    suggested by the statistical evidence, such evidence has substantial probative
    value. Cf. Clark v. Calhoun County, 
    88 F.3d 1393
    , 1397-98 (5th Cir.), reh’g
    95 F.3d 1151
     (1996) (finding racially polarized voting where the
    plaintiffs provided statistical evidence showing such polarization and the trial
    record did not support a contrary finding).
    “homogenous precinct analysis” conducted by the plaintiffs’ expert.
    At trial, the plaintiffs submitted expert reports and testimony
    developed using both regression and homogenous precinct analysis.
    See, e.g., ROA vol. 11 at 22-24.         The homogenous precinct analysis
    conducted by the plaintiffs’ expert selected predominantly Hispanic
    and Anglo precincts14 from within Justice Precinct Two and examined
    the performance of the 13 candidates who ran in the 2002 elections.
    Id.        We need not consider this homogeneous precinct analysis
    further, however, because, despite its statements to the contrary,
    the district court did not actually rely on this analysis.15
                  The court’s opinion makes clear that it confused the
    plaintiffs’ homogenous precinct analysis with the separate analysis
    conducted by the plaintiffs’ expert of some 115 jurisdictions16 that
    had   been     redistricted   on   a   single   member   concept    and   which
                The plaintiffs’ expert examined nine precincts in Bexar County with
    Hispanic voter registration over 90 percent and (because only one precinct
    consisting of 14 total registered voters had Anglo voter registration over 90
    percent) eight precincts with Anglo voter registration over 80 percent. ROA vol.
    11 at 22-24.
                This is perhaps not surprising given that the district court had
    (erroneously) held that the 2002 elections used in the plaintiffs’ homogenous
    precinct analysis were not reliable because of the presence of “special
                 Dr. Flores’s expert report indicates that he examined approximately
    200 different electoral districts in the San Antonio metropolitan area. Ex.
    P-146, ¶ 4. However, plaintiffs’ trial exhibits that list the jurisdictions
    examined only show a total of 154 jurisdictions, 39 of which are City Council
    Districts that fall outside the 1992-2001 timeframe that the plaintiffs’ expert
    analyzed. Exs. P-14, P-15; ROA vol. 11 at 26. Thus, the data submitted at trial
    appear to indicate that the plaintiffs’ expert only examined 115 districts within
    the relevant timeframe.
    contained varying percentages of Hispanic voters.17             These election
    jurisdictions consisted of San Antonio city council districts,
    state      house   and   senate   districts,   state    board   of   education
    districts, and U.S. Congressional districts.               In each of these
    election jurisdictions, the plaintiffs’ expert examined the overall
    population and voting age population by racial group, as well as
    the “Spanish-surname”18 voter registration.              See ROA vol. 11 at
    25-26; Pls. Ex. 14-15. In addition, the plaintiffs’ expert focused
    on the success rates of Hispanic candidates who ran for election in
    these districts.         See ROA vol. 11 at 25-52.     The expert’s analysis
    of single member districts is completely separate and distinct from
    the homogenous precinct analysis.
                The district court’s confusion in this regard is somewhat
    understandable given that on direct examination, the plaintiffs’ expert testified
    regarding the results of his homogenous precinct analysis immediately before and
    after presenting the results of his additional analysis regarding these
    redistricted single member districts. See ROA vol. 11 at 22-24, 53-56.
                 The use of “Spanish-surname” registration is novel and highly
    problematic.    At least one district court has recently noted the problems
    associated with “Spanish-surname analysis” because of its tendency to misidentify
    Hispanic persons as non-Hispanic and vice-versa. See United States v. Alamosa
    306 F. Supp. 2d 1016
    , 1022 (D. Colo. 2004) (Krieger, J.). That court
    held that the expert testimony based on Spanish-surname data, while probative,
    should be afforded reduced weight, and noted that self-identification data
    provides a more reliable means of determining ethnicity. Id. Both parties in
    this case presented Spanish-surname data and neither argues that the district
    afforded too much weight to these data. However, part of the testimony at trial,
    as well as some of the discussion in the briefs before this court, focused on the
    fact that the 2002 race for Constable in Justice Precinct Two took place between
    two Hispanics named Garza and Wilborn. The fact that Wilborn, a Hispanic with
    a “non-Hispanic” name, would not have been counted in the Spanish-surname
    registered voter data presented by either party, gives us pause as to the
    reliability of such data. We share the concerns raised by the district court in
    Alamosa County regarding the use of Spanish-surname data, and agree that without
    a strict showing of its probativeness, Spanish-surname data are disfavored, and
    census data based upon self-identification provides the proper basis for
    analyzing Section 2 vote dilution claims in the future.
              Based on his examination of the success rates of Hispanic
    candidates in Bexar County, the plaintiffs’ expert confirmed, at
    least in his mind, the conclusion he had reached based on his
    earlier homogenous precinct analysis that examined the results of
    the 13 reconstituted elections from the 2002 general election. Dr.
    Flores concluded that, for a Hispanic candidate to succeed in Bexar
    County, the “Spanish-surname” registered voter population must
    exceed 50 percent in a given election jurisdiction. Accepting this
    conclusion, the court held that because
         new Justice Precinct Two [does] not contain a percentage
         of registered voters in excess of 50 percent . . . the
         Court is in agreement with Dr. Flores that Anglo voters,
         in the absence of special circumstances, can and will
         vote as a bloc in new Precinct Two usually to defeat the
         candidate chosen by Hispanics . . . [and therefore] the
         third prong of Gingles is satisfied.
              The district court’s determination in this regard is
    clearly erroneous for two reasons.      First, we know of no caselaw
    that simply correlates minority candidate success rates, absent any
    additional   statistical   analysis,   with   a   minimum   threshold   of
    minority voter registration that automatically satisfies Gingles’
    third prong.   Indeed, in our view, such an approach cuts at the
    heart of Gingles and its progeny, which prohibit courts from
    presuming racial bloc voting and require the plaintiffs to prove
    that Anglos actually vote as a bloc usually to defeat the minority
    candidate of choice.   See Growe v. Emison, 
    507 U.S. 25
    , 41, 
    113 S. Ct. 1075
    , 1085, 
    122 L. Ed. 2d 388
     (1993) (“a court may not
    presume bloc voting even within a single minority group”) (citing
    Gingles, 478 U.S. at 46, 106 S. Ct. at 2764).                Because the district
    court discounted the reconstituted election evidence submitted by
    both parties,19 it had no information that would have shed any light
    on whether Anglo voters in these areas actually vote as a bloc
    usually to defeat the Hispanic candidate of choice.                          Rather, in
    relying only upon the remaining data submitted by the plaintiffs in
    support    of    their     expert’s       conclusion,        the    district      court
    impermissibly        presumed     Anglo    bloc     voting         against     Hispanic
    candidates      in   any   and    all     districts     where        Hispanic     voter
    registration is below 50 percent.
                Moreover,      even    if     this    method       of     analysis       were
    appropriate,     the    data    relied    upon    by   the    district       court    are
    ambiguous at best on the question whether 50 percent is the minimum
    threshold for Hispanic voter registration in order to assess
    Section 2 compliance.          The data shed little, if any, light on the
    real question in this case, i.e., whether the 48 to 49 percent20 of
                This category includes the regression and homogenous precinct
    analysis actually conducted by the plaintiffs’ expert that analyzed 13 races from
    the 2002 election cycle. See ROA vol. 11 at 22-24.
                 At trial, there was some dispute and/or confusion as to the
    percentage of Hispanic voters in new Justice Precinct Two. The plaintiffs’
    expert initially testified that 48.5 percent of the registered voters were
    Hispanic, but then later testified that 48.2 percent of the registered voters
    were Hispanic. See ROA vol. 11 at 13 (“Well, currently, [Justice] Precinct 2,
    the way it was redistricted, has 48.5 percent Hispanic registered voters.”); See
    ROA vol. 11 at 24 (“You compare that to new [Justice] Precinct 2 and the – where
    the registration is 48.2 percent . . .”). The defendant’s expert, on the other
    hand, testified that the Hispanic registration was 49 percent by 2002. See ROA
    vol. 12 at 52 (“Q: Now, let’s go to the 2002 general election. And first,
    what’s happened to the Spanish surname registered voter level? A: By 2002,
    you’re at 49 percent.”). The district court found that Hispanic voters made up
    48.8 percent of registered voters in new Justice Precinct Two. Because the
    relatively minor differences in these numbers do not substantively alter our
    Hispanic voters in Justice Precinct Two is sufficient that they
    have an opportunity to elect the candidate of their choice.                   As
    Bexar      County   points    out,   of   the    115   districts   examined   by
    Dr. Flores, 71 have over 50 percent Hispanic registered voters.
    See Exs. P-14, P-15.         It is undisputed that when the percentage of
    Hispanic registered voters exceeds 50 percent, Hispanics have a
    clear opportunity to elect their candidates of choice in those
    districts. But, the question before the district court was whether
    a lower percentage of registered voters was sufficient to afford
    such an opportunity.         Of the remaining 44 districts, 41 had less
    than 32 percent Hispanic registration and 26 of these had less than
    20 percent Hispanic registration.               Id.    Evidence regarding such
    heavily non-Hispanic districts does not carry the plaintiffs’
    burden as to Precinct Two.           In fact, in the only relevant set of
    three districts where Hispanic voter registration lay between 48
    and 49 percent, a Hispanic candidate was actually elected.21              While
    the experts disagreed as to the reasons for the success of the
    Hispanic candidate in this below-50 percent district, the results
    undermine Dr. Flores’s finding that 50 percent Hispanic voter
    registration is a “magical number” below which the third Gingles
    analysis, and neither party directly argues that the district court clearly erred
    in its factual finding, we accept, for the sake of argument, the district court’s
                These “three districts” all represent the same state House district
    at different points in time. Under Dr. Flores’s methodology, these districts
    were considered separate and distinct.
    factor may be presumed to be satisfied.22
                For the foregoing reasons, the only supporting evidence
    referenced by the district court on the third Gingles prong was
    actually non-probative, and the court’s finding was therefore
    clearly erroneous.23
          4.    Plaintiffs’ Burden of Proof
                A final observation is in order concerning plaintiffs’
    burden of proof of the third Gingles factor.               Elections for the
    three offices in Justice Precinct Two — one constable and two
    justices of the peace — are held in November of even-numbered
    years, with two positions on the ballot in presidential election
    years and one position on the ballot in non-presidential election
                Further undercutting Dr. Flores’s conclusion is his admission at
    trial that roughly between 25 and 33 percent of Anglo voters would cross over to
    support the Hispanic candidate of choice within new Justice Precinct Two. See
    ROA vol. 11 at 65. In Gingles, the Supreme Court made clear that crossover
    voting by the majority racial group is relevant to the racial polarization
    inquiry. See Gingles, 478 U.S. at 56, 106 S. Ct. at 2269. In applying the
    Gingles factors in the context of a racial gerrymandering case, the Supreme Court
    more recently declined to overturn a district court’s determination that
    insufficient evidence of racial polarization existed where Anglos crossed over
    to vote for the minority candidate of choice at rates ranging between 22 and 38
    percent. See Abrams v. Johnson, 
    521 U.S. 74
    , 92-93, 
    117 S. Ct. 1925
    , 1936-37,
    138 L. Ed. 2d 285
     (1997). In the present case, the district court did not even
    discuss Dr. Flores’s acknowledgment of a relatively substantial portion of Anglo
    voters’ support for Hispanic candidates. See ROA vol. 11 at 65.
                Because we hold that the district court erred in determining that 50
    percent was an appropriate threshold below which the third Gingles factor was
    satisfied, we need not reach the question whether the district court was correct
    in holding that the post-trial submission of Bexar County — indicating that the
    Hispanic registration in new Justice Precinct Two exceeded 50 percent — “proves
    nothing.” However, we do note that even had the district court’s determination
    regarding the threshold percentage been correct, such evidence would strongly
    indicate that no relief was warranted, given that the primary factor relied upon
    by the district court in finding liability - Hispanic voter registration below
    50 percent - ceased to exist. Cf. Westwego Citizens for Better Gov’t v. City of
    906 F.2d 1042
    , 1045 (5th Cir. 1990) (remanding to the district court
    for consideration of post-trial election results that related to the evidence
    presented at trial and the district court’s findings).
    years.     On cross-examination, Dr. Flores admitted that he agreed
    with the defense expert, Dr. Alford, that in presidential election
    years, Anglos do not vote as a bloc usually to defeat the Hispanic
    candidate of choice in Justice Precinct Two.            See ROA vol. 11 at
    65-67.     In addition, Dr. Flores admitted that it was unclear and
    uncertain whether Anglos vote as a bloc, in non-presidential
    election years, usually to defeat the Hispanic candidate of choice
    within the challenged area.           Id. at 67-68.24       Given that the
    plaintiffs’ own expert witness at trial admitted that for two out
    of the three relevant election scenarios the third Gingles factor
    could not be met, and that in the remaining election scenario, it
    is unclear and uncertain whether this factor could be met, the
    district court’s finding that the plaintiffs had satisfied their
    burden of proof on this factor is all the more perplexing.
          5.    Totality of the Circumstances Inquiry
                Because the plaintiffs failed to meet their burden of
    proof on one of the three essential Gingles preconditions for a
                Q: All right. Now we had some areas of disagreement. Is it fair
    to say that we’re going to disagree as to whether Anglos in Precinct 2 vote as
    a bloc to usually defeat the Hispanic choice in nonpresidential year general
                A: To me, it’s not clear. That’s correct.
                Q: So you’re saying –- let me back up just a second. You’re saying
    that it’s not clear whether they vote as a bloc usually to defeat?
                A: Well, in non-presidential year general election, all we’ve got
    is that one - - that one election. So usually in that one election, to me, that
    doesn’t make very much - - if we have a history of elections, then I could - -
    I could have a better answer for this. But I really can’t answer this.
                Q: All right. So we may agree that they don’t vote as a bloc
    usually to defeat the Hispanic choice or we may not disagree on that. You just
    don’t know?
                A: To me, this is an area of uncertainty.
    Section 2 vote dilution claim, we need not reach the County’s claim
    that the district court clearly erred in its analysis of the
    totality of the circumstances.          Magnolia Bar, 994 F.2d at 1148.
    Nonetheless, where plaintiffs are able to satisfy the Gingles
    threshold inquiry and a district court properly turns to the
    requisite totality of the circumstances analysis, district courts
    must thoughtfully consider the factors enumerated in Zimmer v.
    485 F.2d 1297
    , 1305 (5th Cir. 1973), and the Senate
    Judiciary Committee report on the 1982 amendments to the Voting
    Rights Act, S. Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982),
    reprinted in 1982 U.S.C.C.A.N. 177, 206-07.            The district court’s
    relatively cursory analysis of the factors was insufficient in this
    case.      In particular, the court ignored that five of the 11
    officials elected from the county’s justice precincts are Hispanic
    and that as the election cycle progresses in the new Precinct Two,
    more Hispanics will likely be elected.25         This powerful evidence of
    nearly proportional representation ought to have been considered by
    the court.
          6.   Relief Ordered by the District Court
                From the preceding discussion, it is clear that the
    district court’s award of injunctive relief must be vacated.
                We pause briefly, however, to note that district courts
    should use a great deal of caution in invalidating the results of
                Plaintiffs’ refusal to identify Constable Wilborn as Hispanic simply
    because he lacks an Hispanic surname borders on the ridiculous.
    a duly held election and ordering the implementation of its own
    alternative districting plan.            The primary responsibility for
    correcting Voting Rights Act deficiencies rests with the relevant
    legislative body.      Jones v. Lubbock, 
    727 F.2d 364
    , 387 (5th Cir.,
    reh’g denied, 
    730 F.2d 233
     (1984)) (citing Chapman v. Meier, 
    420 U.S. 1
    , 27, 
    95 S. Ct. 751
    , 766, 
    42 L. Ed. 2d 766
     (1975)).              Both the
    Supreme Court and this court have admonished district courts to
    afford local governments a reasonable opportunity to propose a
    constitutionally permissible plan and not haphazardly to order
    injunctive relief.26      Id. (citing       Wise v. Lipscomb, 
    437 U.S. 535
    98 S. Ct. 2493
    , 2497, 
    57 L. Ed. 411
     (1978)).                   The extra-
    ordinary relief granted in this case, in which the district court
    not only ordered the election results overturned, but required the
                In our view, the district court did not afford Bexar County a
    reasonable opportunity to fashion an appropriate remedy.       In Bexar County’s
    filings with the district court regarding the relief to be ordered, as noted
    above, the county pointed out that the district court’s primary rationale for
    finding liability — the fact that Hispanic voter registration was under 50
    percent in Justice Precinct Two — had changed since the time of trial. See
    R. Doc. 190 (Bexar County’s suggestion to the court on the scope of available
    relief and reconsideration of Section 2 finding highlighting the changed
    circumstances); R. Doc. 193 (Bexar Court’s suggestion of mootness based on the
    changed circumstances). As a result, the County requested that the district
    court either alter its finding on liability or provide the County with
    information on what criteria the court would use to evaluate a proposed plan so
    that the county could submit such a plan. See R. Doc. 190 (requesting that the
    district court either alter its finding on liability or, in the alternative,
    provide additional guidance to the parties); R. Doc. 202 (Bexar County’s comments
    on the plaintiffs’ September 18 advisory to the court indicating that Bexar
    County stood ready “to propose a remedial plan that cures the legal infirmities
    that have been identified by the court,” but requesting “a status conference or
    other hearing prior to [the district court] granting relief” and arguing that
    such a proceeding “would be of great benefit to the court and the parties in
    determining exactly what relief would address the infirmities identified by the
    court.”). However, rather than address Bexar County’s reasonable concerns, the
    district court simply granted the bulk of the plaintiffs’ requested relief.
    R. Doc. 203. Such an approach does not comport with the Supreme Court’s and this
    court’s clear requirements.
    county to recreate and refund the eliminated constable office, is
    reserved only for the most extreme cases.                    See, e.g., Cook v.
    735 F.2d 912
    , 922 (5th Cir. 1984).                  This case was in no
    way extreme.    The court’s order was an abuse of discretion.
    B.    Plaintiffs’ Constitutional Claim
               While the district court’s analysis of the plaintiffs’
    Section 2 Voting Rights Act claim was wanting in many respects, we
    note, however,     that    the     district    court    engaged     in    a   careful
    analysis of the plaintiffs’ claim under the Texas Constitution.
    Our review of the briefs and record indicates that the district
    court properly resolved this claim on the merits.                  We affirm this
    portion of the judgment.
                                  III.     CONCLUSION
               This   is   the    rare    case    in    which    the   district    court
    erroneously refused to consider probative evidence and just as
    erroneously relied on non-probative evidence to support its vote
    dilution finding. To uphold a finding of vote dilution without any
    supporting     evidence,     and     with    much    evidence      that   indicates
    (a)   sustained    Hispanic        electoral       success    in   Precinct     Two;
    (b) significant Anglo crossover voting for Hispanic candidates;
    and (c) nearly proportional Hispanic representation in the justice
    precinct posts, ignores modern-day reality.                  The court’s finding
    and resulting judgment cannot stand.
               For the reasons discussed above, the judgment of the
    district court is REVERSED IN PART and AFFIRMED IN PART.   In light
    of our conclusions, we RENDER JUDGMENT in favor of Bexar County and
    VACATE the district court’s injunctive order.