Rangel v. Morales ( 1993 )


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