League of United Latin American Citizens ( 1993 )


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  •                           TABLE OF CONTENTS
    
    
    I.    Facts   . . . . . . . . . . . . . . . . . . . . . . . . .                            2
    
    II.   Motion to Remand . . . . . . . . . . .         . . . .         .   .   .   .   .     9
          A. The Authority of the Texas Attorney         General         .   .   .   .   .    10
          B. Other Motions . . . . . . . . . . .         . . . .         .   .   .   .   .    18
          C. The Intervenors . . . . . . . . . .         . . . .         .   .   .   .   .    20
          D. Consent Decrees . . . . . . . . . .         . . . .         .   .   .   .   .    24
          E. Chisom v. Edwards . . . . . . . . .         . . . .         .   .   .   .   .    29
          F. Federalism . . . . . . . . . . . .          . . . .         .   .   .   .   .    32
    
    III. Racial Bloc Voting . . . . . . . .      . . . . .           .   .   .   .   .   .    32
         A. Whitcomb v. Chavis and White v.      Register            .   .   .   .   .   .    38
         B. The 1982 Amendments . . . . . .      . . . . .           .   .   .   .   .   .    46
         C. Thornburg v. Gingles . . . . .       . . . . .           .   .   .   .   .   .    49
         D. Partisan Politics . . . . . . .      . . . . .           .   .   .   .   .   .    57
         E. Two Objections . . . . . . . .       . . . . .           .   .   .   .   .   .    64
    
    IV.   Other Legal Errors Affecting   the Vote Dilution Inquiry                       .    71
          A. Cohesiveness of Different   Minority Groups . . . . .                       .    71
          B. Relevance of Small Number   of Minority Lawyers . . .                       .    75
          C. Past Discrimination . . .   . . . . . . . . . . . . .                       .    77
    
    V.    Texas' Linkage Interest . . . . . . . . . . . . .                      .   .   . 83
          A. The Structure of Texas District Courts . . . .                      .   .   . 84
          B. The Role of Function Under § 2 . . . . . . . .                      .   .   . 85
          C. Weight of State's Interest is Matter of Law . .                     .   .   . 90
          D. Determining the Weight of the Linkage Interest                      .   .   . 92
          E. Other Means to Accommodate the Linkage Interest                     .   .   . 102
          F. Balancing the State's Interest . . . . . . . .                      .   .   . 105
    
    VI.   Application of Law to Each   County    .   .   .   .   .   .   .   .   .   .   .   106
          A. Dallas County . . . . .   . . . .   .   .   .   .   .   .   .   .   .   .   .   107
          B. Harris County . . . . .   . . . .   .   .   .   .   .   .   .   .   .   .   .   115
          C. Tarrant County . . . .    . . . .   .   .   .   .   .   .   .   .   .   .   .   125
          D. Travis County . . . . .   . . . .   .   .   .   .   .   .   .   .   .   .   .   130
          E. Bexar County . . . . .    . . . .   .   .   .   .   .   .   .   .   .   .   .   135
          F. Jefferson County . . .    . . . .   .   .   .   .   .   .   .   .   .   .   .   138
          G. Midland County . . . .    . . . .   .   .   .   .   .   .   .   .   .   .   .   141
          H. Lubbock County . . . .    . . . .   .   .   .   .   .   .   .   .   .   .   .   143
          I. Ector County . . . . .    . . . .   .   .   .   .   .   .   .   .   .   .   .   145
    
    VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . 147
                  IN THE UNITED STATES COURT OF APPEALS
    
                            FOR THE FIFTH CIRCUIT
    
    
    
    
                                 No. 90-8014
    
    
    LEAGUE OF UNITED LATIN AMERICAN CITIZENS,
    COUNCIL NO. 4434,
                                            Plaintiffs-Appellees,
    and
    
    JESSE OLIVER, ET AL.,
                                               Intervening Plaintiffs-
                                               Appellees,
    
                                   versus
    
    WILLIAM P. CLEMENTS, Etc.
                                               Defendants,
    
    JIM MATTOX, ET AL.,
                                               Defendants-Appellees-
                                               Appellants,
    
                                   versus
    
    JUDGE F. HAROLD ENTZ, Etc.,
    JUDGE SHAROLYN WOOD, Etc., and
    GEORGE S. BAYOUD, JR., Etc.,
                                               Defendants-Appellants,
    
    and
    
    TOM RICKHOFF, SUSAN D. REED, JOHN J.
    SPECIA, JR., SID L. HARLE, SHARON
    MACRAE and MICHAEL P. PEDAN, Bexar
    County, Texas State District Judges,
                                               Appellants.
    
    
    
              Appeal From the United States District Court
                    for the Western District of Texas
    
    
                              (August 23, 1993)
    
    Before POLITZ, Chief Judge, KING, JOHNSON, GARWOOD, JOLLY,
    HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, and
    DeMOSS, Circuit Judges.
    HIGGINBOTHAM, Circuit Judge:
    
         Over the past fifty years, the steady march of civil rights
    
    has been to New Orleans and this court.       It continues but the
    
    demands have changed.      Relatively clear lines of legality and
    
    morality have become more difficult to locate as demands for
    
    outcomes have followed the cutting away of obstacles to full
    
    participation.     With our diverse ethnic makeup, this demand for
    
    results in voting has surfaced profound questions of a democratic
    
    political order such as the limits on rearranging state structures
    
    to alter election outcomes, and majority rule at the ballot box and
    
    even in legislative halls, questions Congress has provoked but not
    
    answered.     All this can make a simple voting rights case seem
    
    difficult, certainly so with state judges elected on a partisan
    
    ballot.     Today our difficulties of fitting the Act to the unique
    
    features of the state judiciary and sorting out racial and partisan
    
    voting are large but the merits of the claims are easily grasped.
    
    As we will explain, there is a background to the debate on the
    
    large issues that must not be obscured.       The evidence of any
    
    dilution of minority voting power is marginal at best.   We are not
    
    persuaded that a violation of the Voting Rights Act has been proved
    
    and we reverse.
    
                                  I.   Facts
    
         On July 11, 1988, ten individual voters and the League of
    
    United Latin American Citizens sued in federal district court
    
    alleging that Texas' system of electing state trial judges violated
    
    § 2 of the Voting Rights Act and the Fourteenth and Fifteenth
    
    
                                       2
    Amendments in several Texas counties.1   They sued the Governor of
    
    Texas,2 the Attorney General, the Secretary of State, and the Chief
    
    Justice of the Supreme Court as chair of the Judicial Districts
    
    Board.    Because this board is responsible for reapportioning the
    
    judicial districts, the suit also named each of its members as
    
    defendants.    On March 12, 1989, the district court granted the
    
    motions to intervene of the Houston Lawyers' Association, the
    
    Legislative Black Caucus, and two Texas district court judges, in
    
    their individual capacities--Sharolyn Wood, 127th District Court in
    
    Harris County, and Harold Entz, 194th District Court in Dallas
    
    County.
    
         As they have throughout Texas history, Texas voters elect
    
    their trial judges in county-wide elections.   A voter may vote for
    
    all of the trial courts of general jurisdiction in her county.   At
    
    the same time, each trial court is a distinct court, such as the
    
    134th judicial district court of Dallas County, with county-wide
    
    jurisdiction and its own history of incumbents.   A candidate runs
    
    for a particular court.    Plaintiffs contend that electing trial
    
    judges county-wide violates § 2 of the Voting Rights Act by
    
    impermissibly diluting the voting power of Hispanics and blacks.
    
    Plaintiffs proceed on behalf of language and ethnic minorities in
    
    different combinations in different counties.     Depending on the
    
         1
          Plaintiffs originally challenged the election of district
    judges in 44 counties, but by trial, winnowed their targets to
    the following nine urban counties: Harris County, Dallas County,
    Travis County, Tarrant County, Jefferson County, Ector County,
    Bexar County, Midland County, and Lubbock County.
         2
          Plaintiffs early in the case dismissed the Governor.
    
                                     3
    county--more specifically, the numbers--they argue that Hispanic
    
    voters, black voters, or the combination of both Hispanic and black
    
    voters "have less opportunity than other members of the electorate
    
    to participate in the political process and elect representatives
    
    of their choice."      Plaintiffs aimed their constitutional challenge
    
    at Article 5, § 7a(i) of the Texas Constitution, which precludes
    
    the creation of judicial districts smaller than a county absent
    
    approval by a majority of the voters in that county.         They argued
    
    that this limitation on the power to redistrict of the Judicial
    
    Districts Board, chaired by defendant Chief Justice Phillips, was
    
    enacted with discriminatory intent.
    
          On November 8, 1989, the district court found county-wide
    
    elections violated § 2 in all nine counties, enjoined future
    
    elections, divided the nine counties into electoral subdistricts,
    
    and ordered a nonpartisan election for May 5, 1990, with any runoff
    
    to   be   held    on   June   2.   The   district   court   rejected   the
    
    constitutional arguments, finding that plaintiffs had failed to
    
    prove that Texas instituted or maintained the electoral system with
    
    discriminatory intent.3         Intervenors Judge Wood and Judge Entz
    
    appealed.        Unhappy with nonpartisan elections ordered by the
    
    district court, the Texas Attorney General first moved the court to
    
    alter its interim plan.        After the court denied the motion, the
    
    
    
    
          3
           This ruling was not appealed.
    
                                         4
    Attorney General filed a notice of appeal.4       We stayed the district
    
    court's order pending appeal.
    
          In our first effort in this case, a panel held that the Act
    
    covers judicial elections but concluded that electing district
    
    judges in county-wide elections in Texas did not violate § 2.
    
    League of United Latin American Citizens v. Clements, 
    902 F.2d 293
    
    (5th Cir. 1990) ("LULAC I"). We considered the history of judicial
    
    elections in Texas and the office of district judge--the court of
    
    general jurisdiction. We held that Texas had a special interest in
    
    linking the jurisdictional and electoral bases of the trial courts,
    
    an   interest   accented    by   unwavering   support   throughout   Texas
    
    history.   Finding no truly informing analogues for resolving such
    
    an attack on at-large voting supported by a state interest unique
    
    to this judicial office, we looked to the weighing constructs
    
    familiar to the Act.       We concluded that, as a matter of law, the
    
    state interest linking jurisdiction and electoral base outweighed
    
    its potentially dilutive effect.         LULAC I, 902 F.2d at 308.
    
          A majority of this court sua sponte ordered reconsideration of
    
    the panel decision en banc.          League of United Latin American
    
    Citizens v. Clements, 
    914 F.2d 620
     (5th Cir. 1990) ("LULAC II").
    
    The en banc court held by a 7-6 vote that § 2 of the Act did not
    
    
    
          4
          Former Secretary of State George S. Bayoud, Jr., a named
    party defendant, objected to the Attorney General's decision not
    to appeal immediately. Bayoud took the position that as chief
    elections officer of the State of Texas, he was the Attorney
    General's client and the Attorney General must represent his
    interests. Bayoud obtained independent counsel and filed a
    notice of appeal himself.
    
                                         5
    apply to judicial elections, rejecting the contrary view of the
    
    panel.
    
         Houston    Lawyers'    Association,          as    intervenor,       and    LULAC
    
    petitioned    for    certiorari.        The    Supreme        Court   granted    both
    
    petitions, consolidated them, and reversed, holding that the Voting
    
    Rights Act applies to state judicial elections.                  Houston Lawyers'
    
    Ass'n v. Attorney General,              U.S.           , 
    111 S. Ct. 2376
     (1991).
    
    The Supreme Court also held that Texas has a special interest in
    
    linking the electoral and jurisdictional bases of district judges.
    
    Id. at       , 111 S.Ct. at 2381.        The Court did not agree, however,
    
    that this state interest outweighed its dilutive effect in all
    
    cases, as a matter of law.         Rather, the Court held that balancing
    
    is a case-specific enterprise, struck by inquiry into the totality
    
    of the circumstances.       Justice Stevens explained that the state
    
    interest in linkage was to be weighed in deciding "whether a § 2
    
    violation    occurred."      Id.        Justice    Stevens       made    plain   that
    
    assessing the linkage interest is part of the determination of
    
    liability and not remedy alone.              The Court effectively came down
    
    between the "goes only to remedy" view of the Department of Justice
    
    and the "matter of law" view of the concurring opinion in LULAC II.
    
         On remand, the en banc court in turn remanded to the panel.
    
    On January 27, 1993, a majority of the panel affirmed the district
    
    court's   findings    in   eight   of    the    nine     counties.        The    panel
    
    concluded    that    plaintiffs     failed      only     in    Travis     County,   a
    
    Democratic stronghold. League of United Latin American Citizens v.
    
    Clements, 
    986 F.2d 728
     (5th Cir. 1993) (LULAC III).                     For a second
    
    
                                             6
    time, this court decided, on its own motion, to hear the case en
    
    banc.
    
         Although the panel opinion had been vacated, General Morales
    
    urged a legislative solution to reforming judicial elections.    He
    
    submitted a plan to the legislature calling for the election of
    
    judges from single-member districts in all Texas counties with
    
    populations over 100,000.    Recognizing that the Texas Constitution
    
    mandates the current system of electing trial judges, see Tex.
    
    Const. Art. 5, §§ 7, 7a(i), Morales asked the legislature to submit
    
    a constitutional amendment to the voters to implement his plan and
    
    urged them to do so in time to moot the LULAC lawsuit.     Doubting
    
    the necessary legislative support for an amendment, the Governor,
    
    the Lieutenant Governor, and minority lawmakers urged Morales to
    
    achieve the same result through settlement.      Morales drafted an
    
    agreement providing for the election of the vast majority of judges
    
    in the nine urban counties by subdistricts.    Democratic officials
    
    who were parties to the suit quickly agreed.   But Morales could not
    
    obtain the agreement of Chief Justice Phillips, nor the district
    
    judges, Judge Wood and Judge Entz.
    
         When a proposed resolution approving the "agreement" reached
    
    the floor of the Senate there was no quorum because all but two of
    
    the thirteen Republican senators walked out.       The Senate later
    
    reconvened as a Committee of the Whole, not in formal session, and
    
    voting along party lines, adopted a resolution expressing its
    
    "sentiment" in support of a federal decree.     Voting in the House
    
    also followed party lines.    Nothing with the force of law could be
    
    
                                      7
    obtained from the legislature.    When the dust settled, the only
    
    legislative action was this expression of sentiment in support of
    
    a federal decree, and that from a Senate convened in a Committee of
    
    the Whole.    Failing to obtain any positive enactment from the
    
    legislature, Morales requested that we remand to the district court
    
    for a hearing and entry of his proposed "consent" decree.
    
         By the decree, 152 judges would run in districts smaller than
    
    a county, while 22 would continue to be elected at-large.   District
    
    boundaries would mirror state representative districts in Dallas,
    
    Harris, Bexar, and Jefferson counties.       Justice of the peace
    
    districts would be used in Tarrant County.   In Lubbock, Ector, and
    
    Midland counties, judges would run from the existing commissioners
    
    court districts.   Anticipating the question of how the case can be
    
    settled without the agreement of the district court judges, the
    
    plan allows Judges Wood and Entz to be elected in a county-wide
    
    election.    The stated purpose was to deny the defendant district
    
    judges standing to object.
    
         Chief Justice Phillips, Judge Wood, and Judge Entz object to
    
    the proposed decree and oppose the motion to remand.   In addition,
    
    three former Chief Justices of Texas, Joe R. Greenhill, Robert W.
    
    Calvert, and John L. Hill, are before us as amici objecting to
    
    remand--and denying the authority of the Attorney General to bind
    
    the State.    Judges Wood and Entz have moved to realign General
    
    Morales with the plaintiffs, and allow their assumption of the
    
    
    
    
                                     8
    defense of the current system.5         Judge Wood has also moved to
    
    disqualify the Texas Attorney General as counsel for the State.
    
    When settlement negotiations began, Chief Justice Phillips obtained
    
    independent counsel.6      General Morales responded by moving to
    
    disqualify Phillips' counsel.       Finally, immediately after oral
    
    argument, plaintiffs filed a notice of nonsuit of Chief Justice
    
    Phillips and the Texas Judicial Districts Board.
    
                            II.    Motion to Remand
    
         We are asked to remand to the district court for entry of a
    
    consent decree, although some of the parties wish to proceed with
    
    the appeal.   The Attorney General argues that these non-consenting
    
    parties are no obstacle.      Chief Justice Phillips, General Morales
    
    argues, was sued in his official capacity as chair of the Judicial
    
    Districts Board and the Attorney General is the exclusive lawyer
    
    for the State of Texas.       On its face, this is not a remarkable
    
    contention.   However, General Morales also maintains that in his
    
    role as lawyer for the State, he need not represent the State's
    
    policymakers; he can ignore them and impose his own views.    That is
    
    remarkable.   The force of this contention is that the Attorney
    
    General is the sole arbiter of State policy when the State's
    
    interest is in litigation.      This argument is put forward despite
    
    the fact that it leaves his scrambling for legislative support
    
    
         5
          Judge Wood also filed a motion to strike the Attorney
    General's Notice of Action Toward Settlement, which we denied
    before oral argument.
         6
          We granted Chief Justice Phillips' motion requesting that
    he be allocated time at oral argument.
    
                                        9
    wholly   inexplicable;    under   his    presently   claimed    power,   the
    
    Attorney General did not need to have the "settlement" adopted by
    
    statute.   In any event, Texas law does not sanction his actions.
    
    Nor are we persuaded that Defendant-Intervenors, Judges Entz and
    
    Wood, lack standing to object to a proposed consent decree that
    
    will allow them to run county-wide.        We deny the motion to remand.
    
               A. The Authority of the Texas Attorney General
    
         General Morales is not the first Texas Attorney General to
    
    have staked such a claim of authority.            We rejected a similar
    
    effort in Baker v. Wade, 
    769 F.2d 289
     (5th Cir. 1985) (en banc).
    
    Baker challenged Texas' anti-sodomy statute, suing Holt, the Dallas
    
    City Attorney, and Wade, the Dallas County District Attorney.            The
    
    district court certified a defendant class of officials responsible
    
    for enforcing the statute, with Holt and Wade as representatives,
    
    and the Attorney General of Texas intervened on behalf of the
    
    State.      After   the    district      court    declared     the   statute
    
    unconstitutional, Danny E. Hill, Potter County's district attorney,
    
    filed a notice of appeal, concerned that the Attorney General might
    
    decide not to appeal.     Hill was a member of the class, but was not
    
    a named defendant and had not sought to intervene.           Hill's concern
    
    was realized when the Attorney General appealed but then withdrew
    
    the notice.   After failing to persuade the Texas Supreme Court to
    
    order the Attorney General to pursue the appeal and unable to
    
    obtain leave to intervene from the district court, Hill asked this
    
    court for leave to intervene on appeal.          We granted this request,
    
    explaining:
    
    
                                        10
         [Hill] would be seriously prejudiced were he not allowed
         to intervene, whereas allowing the appeal to proceed
         would prejudice no one. As a state official empowered by
         Texas law to enforce criminal laws, his interest and its
         impairment by the district court's judgment cannot be
         questioned. . . .
         In this case where the district court has rejected
         binding Supreme Court authority, the circuit court is
         entitled to conclude as a matter of law that those
         interests were inadequately represented by those who
         failed to pursue the appeal and that the state officer
         seeking to intervene was a proper party to do so.
    
    Id. at 292.
    
         Attorney General Mattox made a considered decision to accept
    
    the district court's declaration of unconstitutionality.          That was
    
    a basic policy choice.       Baker's relevant instruction lies in the
    
    fact that Attorney General Mattox's decision did not control.
    
    Baker rejected the very power claimed by this Attorney General.
    
    The power he would exercise cannot be squared with Baker.
    
         That Attorney General Mattox decided to accept the ruling of
    
    the district court and Morales reaches for a similar result by a
    
    "settlement" fails to distinguish our holding in Baker.           It does
    
    not respond to our holding that the Attorney General cannot bind
    
    state officials, his clients, to his own policy preferences. It is
    
    asserted that Hill as a district attorney, one of hundreds in
    
    Texas, was charged with the duty of enforcing the statute held
    
    unconstitutional. The law enforcement responsibility of a district
    
    attorney   and   that   of   the   Chief   Justice   as   chair   of   the
    
    redistricting board, however, do not differ in relevant ways.
    
    Indeed, that the Chief Justice may defend the suit is an a fortiori
    
    case under Baker.   After all, his judicial duties aside, the Chief
    
    Justice's enforcement responsibilities under the redistricting
    
                                        11
    provisions of state law are statewide.                     A district attorney's
    
    duties, however, run only to the county line.                   See Crane v. Texas,
    
    
    766 F.2d 193
     (5th Cir. 1985).
    
          The Texas Constitution requires the Chief Justice to supervise
    
    the state district courts.               Article 5, § 7a established the
    
    Judicial Districts Board and made the Chief Justice its chair.
    
    Tex. Const. Art. 5, § 7a(a) and (b).               The constitution charges the
    
    Board with the duty of reapportioning the judicial districts as the
    
    need arises.     Id. § 7a(f).           Among other things, the Board is
    
    required to consider a district's case load and population in its
    
    reapportionment decisions.            Tex. Gov't Code Ann. § 24.945 (Vernon
    
    1988).    Of special importance to this case, the Board may not
    
    create districts smaller than a county without a general election.
    
    Tex. Const. Art. 5, § 7a(i); Tex. Gov't Code Ann. § 24.945(e)
    
    (Vernon 1988). A redistricting plan may not be proposed or adopted
    
    even in anticipation of such an election.                 Id.   Indeed the district
    
    court denied leave to intervene in this suit to Midland County
    
    concluding it was not a real party in interest.                    A panel of this
    
    court agreed, observing that, unlike the Judicial Districts Board,
    
    the county lacked "the power to re-shape judicial districts."
    
    LULAC v. Clements, 
    884 F.2d 185
    , 187 (5th Cir. 1989).                     Given the
    
    Chief    Justice's   role   as    chair       of    the    Board    and   his    state
    
    constitutional duties to manage state judicial districts and the
    
    efficiency of the courts, his contention that he has the authority
    
    to   defend   this   lawsuit     if    the    Attorney      General   will      not   is
    
    compelling.    If a district attorney has a sufficient interest in
    
    
                                             12
    protecting the laws he is duty-bound to enforce, we are persuaded
    
    that the Chief Justice as chairman of the Judicial Districts Board
    
    has a sufficient interest in protecting the current district court
    
    system.7
    
         The concerns raised by the Baker dissent are not present here.
    
    The dissent was troubled by the fact that Hill was neither a named
    
    defendant nor a class representative, had never sought to intervene
    
    in the district court, and was not a named party when he filed his
    
    appeal.    769 F.2d at 294-95 (Rubin, J., dissenting).   Here, Chief
    
    Justice Phillips has been a named defendant from the outset.
    
         The state courts have had little occasion to face such a bold
    
    claim of authority.    The few Texas cases that have grappled with
    
    the Attorney General's authority offer him little comfort. Morales
    
    points to Terrazas v. Ramirez, 
    829 S.W.2d 712
     (Tex. 1991), but in
    
    Terrazas, General Morales also failed in an effort to "settle" a
    
    legislative reapportionment case.      Following the 1990 census,
    
    plaintiffs sued various state and county officials to prevent the
    
    use of the new census in reapportioning the legislature, because it
    
    allegedly undercounted minorities.    The legislature proceeded with
    
    reapportionment and plaintiffs also challenged the resulting plans.
    
    General Morales defended the legislature's plans, lost at trial,
    
    and appealed directly to the Texas Supreme Court.     Then, Morales
    
         7
          The dissent argues that Chief Justice Phillips was joined
    solely as a jurisdictional party for Eleventh Amendment purposes.
    Even if that were true, and it is not, see supra page 4, it would
    not answer the real question: if the State of Texas is the real
    party in interest, does the Attorney General possess exclusive
    authority to choose whether the State's interests will be
    asserted on appeal? In Baker, we answered in the negative.
    
                                     13
    agreed with the plaintiffs to settle the senate reapportionment
    
    challenge.    The agreement included a redistricting plan that was
    
    submitted    to   the   trial    court     and    promptly      accepted     by   it.
    
    Thereafter, five individuals, not parties to the suit, requested
    
    the Supreme Court of Texas to direct the trial court to vacate its
    
    judgments    reconfiguring       the    senatorial      districts,     order      the
    
    Attorney General to rescind the agreement, and direct the Secretary
    
    of State to withdraw submission of the plan for preclearance.
    
         A plurality directed the trial court to vacate its judgments,
    
    but refused relief against the Attorney General.                   Four justices
    
    held that the trial court erred by failing to weigh all affected
    
    interests before entering the proposed decree.               In Justice Hecht's
    
    words, "a district court cannot order a reapportionment plan for
    
    the State based on nothing more than an agreement of the Governor,
    
    the Attorney General, and a few citizens."              Id. at 714.8       Indeed a
    
    majority believed the Attorney General's "discretion includes the
    
    authority to propose a settlement agreement in an action attacking
    
    the constitutionality of a reapportionment statute."                   Id. at 722
    
    (Hecht, J.) (emphasis supplied).
    
         In approving of the Attorney General's conduct, however, the
    
    plurality    noted      that    he     acted     "on   behalf     of   the     state
    
    defendants[,]" giving him the authority "for his clients and even
    
    on his own, to suggest possible remedies . . . [and] to negotiate
    
    a settlement."    Id. (Hecht, J.) (emphasis added).              "To hold that he
    
    
         8
          Justice Gonzalez joined section II.A. of the plurality
    opinion regarding the entry of redistricting relief.
    
                                             14
    did not would be to give him less authority than any party or any
    
    other attorney participating in the case."       Id. (emphasis added).
    
    The Attorney General acts as counsel for state officials who are
    
    his clients.
    
         Terrazas   recognizes   that   the   Attorney   General   represents
    
    officials.     It does not follow that by doing so, the Attorney
    
    General steps into their shoes and assumes the policymaking roles
    
    of those officials, against whom specific relief is sought.           We
    
    need not and do not decide the authority of the Attorney General
    
    when an official is named in his official capacity only to join the
    
    State.    Plaintiff sought specific relief against the Judicial
    
    Districts Board chaired by defendant Chief Justice Phillips.         The
    
    petitioners who objected to the settlement in Terrazas were not
    
    even parties to the suit.    The Attorney General's power to settle
    
    for his clients is certainly no less than that of other lawyers,
    
    but Terrazas does not say that it is any greater.         No lawyer may
    
    forge a settlement agreement over the express objection of his
    
    client.   Here, to the extent that Morales represents the Chief
    
    Justice in the Justice's defense of his constitutionally assigned
    
    task, he may not ignore him.        As Justice Wallace put it for the
    
    Texas Supreme Court in Public Utility Commission of Texas v. Cofer,
    
    
    754 S.W.2d 121
    , 125 (Tex. 1988):
    
         We emphasize that when a statute confers a right upon the
         attorney general to represent an agency, it imposes a
         corollary duty, and the agency has every right to expect
         the same diligent and faithful representation as any
         other "client."
    
    
    
    
                                        15
    See also Hill v. Lower Colo. River Auth., 
    568 S.W.2d 473
    , 478 (Tex.
    
    Civ. App.--Austin 1978, writ ref'd n.r.e.) (rejecting an attempt by
    
    the attorney general to sue the Texas Water Rights Commission "in
    
    an   effort   to   substitute   his    views   for   that   of   a   lawfully
    
    constituted State administrative agency"); Charles Scribner's Sons
    
    v. Marrs, 
    262 S.W. 722
    , 729 (Tex. 1924) (although attorney general
    
    had authority to represent the State Superintendent of Education,
    
    he did not have authority "to elect for the state to accept or
    
    reject a contract for text-books that is voidable," a decision for
    
    the Board of Education).
    
          The Texas legislature has also recognized that the Attorney
    
    General represents the State but does not make its policies.             "An
    
    admission, agreement, or waiver made by the attorney general in an
    
    action or suit to which the state is a party does not prejudice the
    
    rights of the state."      Tex. Gov't Code Ann. § 402.004 (Vernon
    
    1988); see also State v. Reagan County Purchasing Co., 
    186 S.W.2d 128
    , 135 (Tex. Civ. App.--El Paso 1944, writ ref'd w.o.m.) ("acts
    
    beyond the scope of [Attorney General's] delegated power are not
    
    binding on the State").     If the Texas Attorney General could make
    
    policy for the State, this provision would be superfluous, for he
    
    could never violate it.     He would in effect be the State.            When
    
    faced with this statute before, we appropriately noted that "Texas
    
    has been at particular pains to attempt to circumscribe the power
    
    
    
    
                                          16
    of the attorney general to make admissions on its behalf."   United
    
    States v. Texas, 
    680 F.2d 356
    , 368 n.17 (5th Cir. 1982).9
    
         9
          Because the office of Attorney General is rooted in the
    common law, many states, including Texas, refer to their Attorney
    General's common law powers. E.g. Martinez v. State, 
    753 S.W.2d 165
    , 179 (Tex. App.--Beaumont 1988, writ ref'd). Thus, there is
    some value to looking at how other states have dealt with the
    issue we face today. In Tice v. Department of Transportation,
    
    312 S.E.2d 241
    , 246 (N.C. Ct. App. 1984), the North Carolina
    court held "that the Attorney General . . . is bound by the
    traditional rule governing the attorney-client relationship, and
    cannot enter a consent judgment without the consent of the entity
    represented." In Georgia, the Attorney General may not "bind his
    client by settlement for less than the full sum claimed, unless
    express authority be given by the client." State v. Southwestern
    R.R., 
    66 Ga. 403
    , 407 (1881). The North Dakota Attorney
    General's power to represent state departments and officers
    
         does not mean that the attorney general, standing in the
         position of an attorney to a client, who happens to be an
         officer of the government, steps into the shoes of such
         client in wholly directing the defense and the legal steps
         to be taken in opposition or contrary to the wishes and
         demands of his client or the officer or department
         concerned.
    
    State ex rel. Amerland v. Hagan, 
    175 N.W. 372
    , 374 (N.D. 1919),
    overruled on other grounds, Benson v. North Dakota Workmen's
    Compensation Bureau, 
    283 N.W.2d 96
     (N.D. 1979). According to the
    Mississippi Supreme Court,
    
              The unique position of the Attorney General requires
         that when his views differ from or he finds himself at odds
         with an agency, then he must allow the assigned counsel or a
         specially appointed counsel to represent the agency
         unfettered and uninfluenced by the Attorney General's
         personal opinion.
    
    State ex rel. Allain v. Mississippi Public Serv. Comm'n, 
    418 So. 2d
     779, 784 (Miss. 1982); see also Frazier v. State by and
    through Pittman, 
    504 So. 2d 675
    , 691 (Miss. 1987) (where attorney
    general refuses to represent state agency, agency is entitled to
    its own lawyer and court may retain jurisdiction and entertain
    the suit). Arizona does not permit its Attorney General to
    appeal a decision against the wishes of the state agency he
    represents. Santa Rita Mining Co. v. Department of Property
    Valuation, 
    530 P.2d 360
     (Ariz. 1975). Finally, the authority of
    the Attorney General of Illinois does not permit him to waive the
    rights of his client. Cook County v. Patka, 
    405 N.E.2d 1376
    ,
    
                                   17
           Stated another way, the Attorney General's right to represent
    
    state officials or state agencies cannot be gainsaid, see Hill v.
    
    Texas Water Quality Bd., 
    568 S.W.2d 738
    , 741 (Tex. Civ. App.--
    
    Austin 1978, writ ref'd n.r.e.); Morris v. Smiley, 
    378 S.W.2d 149
    ,
    
    152 (Tex. Civ. App.--Austin 1964, writ ref'd n.r.e.), but he must
    
    in fact represent them.       He cannot ignore his clients and bind the
    
    State against their wishes.10         This is not to say that the Chief
    
    Justice is the sole arbiter.         Both he and the Attorney General are
    
    named parties to this suit, and each has the right to be heard in
    
    this case.      The Attorney General's authority does not allow him to
    
    "close either the mouth of [Phillips] or the ears of the courts,
    
    when    there    are   complaints   that    the   Attorney   General     or   his
    
    assistants are not in fact fulfilling their duty."                  Cofer, 754
    
    S.W.2d at 125.
    
                                  B. Other Motions
    
           We deny the Attorney General's motion to disqualify Phillips'
    
    counsel.     We also deny plaintiffs' attempt to nonsuit the Texas
    
    Judicial    Districts     Board,    including     its   chair,   Chief   Justice
    
    Phillips.       The motion was filed immediately after oral arguments
    
    before the en banc court on May 24, 1993.                 Rule 41(a) governs
    
    
    
    1380 (Ill. App. 1980).
           10
          Professor Fiss has recognized the problem raised by
    Attorney General Morales' actions in this case. "We are left to
    wonder, for example, whether the attorney general should be able
    to bind all state officials, some of whom are elected and thus
    have an independent mandate from the people, or even whether the
    incumbent attorney general should be able to bind his
    successors." Owen M. Fiss, Against Settlement, 93 Yale L.J.
    1073, 1079 (1984).
    
                                           18
    voluntary dismissals and provides that a plaintiff may dismiss an
    
    action without order of the court in two circumstances.                         The
    
    plaintiff must either file the notice of dismissal before the
    
    adverse   party   serves   its   answer     or     summary     judgment   motion,
    
    whichever occurs first, or file a stipulation of dismissal signed
    
    by all parties who have appeared in the case.                         Fed.R.Civ.P.
    
    41(a)(1).   The notice of nonsuit comes almost five years after the
    
    defendants have answered, and none of the defendant-aligned parties
    
    has signed the motion.       Plaintiffs have no unilateral right to
    
    dismiss the Chief Justice and Judicial Districts Board.                   We will
    
    not permit plaintiffs to seek injunctive relief against the office
    
    held by Chief Justice Phillips for almost five years and then
    
    dismiss him when he declines to settle.              See Davis v. Huskipower
    
    Outdoor   Equipment   Corp.,     
    936 F.2d 193
    ,   199   (5th    Cir.   1991)
    
    (affirming refusal to dismiss defendant more than a year after the
    
    case was removed to federal court); Radiant Technology Corp. v.
    
    Electrovert USA Corp., 
    122 F.R.D. 201
     (N.D. Tex. 1988) (motion to
    
    voluntarily dismiss under Rule 41 should be denied when plaintiff
    
    seeks to circumvent an expected adverse result).
    
         We deny the motion of the district judges as Defendant-
    
    Intervenors to realign General Morales with plaintiffs.                   Morales'
    
    efforts to settle the case do not require this measure.                       He is
    
    entitled to take a position in settlement negotiations that is
    
    different from his trial posture. However, if the Attorney General
    
    changes his views on the merits of the case, realigning him with
    
    the plaintiffs may be appropriate.          Cf.    Delchamps, Inc. v. Alabama
    
    
                                           19
    State Milk Control Bd., 
    324 F. Supp. 117
    , 118 (M.D. Ala. 1971)
    
    (allowing Alabama Attorney General, who like the Texas Attorney
    
    General took an oath to defend both state and federal law, to
    
    realign      himself   with    plaintiffs   to   challenge   the   federal
    
    constitutionality of a state law).           We also deny Judge Wood's
    
    motion to disqualify General Morales as counsel for the State.
    
    While we have rejected his claimed power to bind against their will
    
    state officials he is charged to represent, he is nonetheless their
    
    counsel.
    
                                  C. The Intervenors
    
         The Attorney General may represent state officials in their
    
    official capacities, but there is no contention that General
    
    Morales represents Judges Wood and Entz.11         They have intervened in
    
    their personal capacities and have elected to obtain their own
    
    counsel.12     As we earlier observed, the proposed consent decree
    
         11
          After trial, certain Bexar County district judges also
    sought to intervene as defendants, and we have before us an
    appeal from the denial of their motion. A motion to intervene
    under Rule 24 must be timely. Fed.R.Civ.P. 24(a), (b); Jones v.
    Caddo Parish School Bd., 
    735 F.2d 923
    , 926 (5th Cir. 1984) (en
    banc). Although the district court did not expressly state that
    their motion was untimely, it was well within the district
    court's discretion to deny the motion on this ground.
         12
          Because we find that the judges' standing in their
    individual capacities survives the settlement agreement, we are
    not required to address the ability of Texas district court
    judges to represent themselves in their official capacities. It
    appears, however, that Texas law permits them to do so. Tex.
    Gov't Code § 74.141, titled Defense of Judges provides:
    
         The attorney general shall defend a state district judge, a
         presiding judge of an administrative region, or an active,
         retired, or former judge assigned under this chapter in any
         action or suit in any court in which the judge is a
         defendant because of his office as judge if the judge
    
                                          20
    would allow Judge Wood and Judge Entz to continue to run county-
    
    wide.     General Morales urges that they therefore lack standing to
    
    either prosecute the suit or object to the proposed decree.
    
         To this point, the standing of the intervening parties has not
    
    been questioned.        To the contrary, the intervenors played an
    
    important role at trial and have since taken the lead.           After the
    
    federal district judge's ruling in favor of plaintiffs, the notice
    
    of appeal was first filed by Judges Wood and Entz, not by the
    
    Attorney     General.     Only    the    district   judge's   adherence   to
    
    nonpartisan elections prodded the Attorney General to appeal.             The
    
    Houston Lawyers' Association intervened by the same order as the
    
    intervening judges and carried the appeal from our first en banc
    
    decision to the United States Supreme Court.13           Even now, no one
    
    questions the earlier uncontested standing of the intervenors; nor
    
    could they.     Wood and Entz intervened in part to protect their
    
    tenure as elected judges.        The district court found that they were
    
    illegally elected.
    
         Of course, these intervenors must satisfy Article III to
    
    appeal on their own.      Diamond v. Charles, 
    476 U.S. 54
    , 68 (1986);
    
    Didrickson v. United States Department of the Interior, 982 F.2d
    
    
         requests the attorney general's assistance in the defense of
         the suit.
    
    (emphasis added).
         13
          "Since an intervenor is bound by future orders, it may
    appeal from an appealable order unless the intervention has been
    specifically limited to forbid it." Matter of First Colonial
    Corp., 
    544 F.2d 1291
    , 1298 (5th Cir. 1977). There is obviously
    no such limitation on the intervenors' right to appeal in this
    case.
    
                                            21
    1332, 1337-39 (9th Cir. 1992); United States v. Western Elec. Co.,
    
    
    900 F.2d 283
     (D.C. Cir. 1990).       A case or controversy between the
    
    State and plaintiffs remains.          The parties have a right to a
    
    determination of that appeal, unless they consent to a remand. See
    
    Wheeler v. American Home Products Corp., 
    582 F.2d 891
    , 896 (5th
    
    Cir. 1977) ("once intervention has been allowed, the original
    
    parties may not stipulate away the rights of the intervenor"); see
    
    also Sheffield v. Itawamba County Bd. of Supervisors, 
    439 F.2d 35
    ,
    
    36 (5th Cir. 1971) ("having instituted a public lawsuit to secure
    
    rectification   for    a   constitutional    wrong   of   wide   dimension,
    
    [plaintiffs] cannot privately determine its destiny"). Put another
    
    way, the proposed settlement does not deprive this court of its
    
    jurisdiction to hear the appeal independently perfected by Judges
    
    Wood and Entz, an appeal from a decision that declared their
    
    elections illegal.
    
         Even   assuming       the   proposed   settlement    foreclosed    the
    
    intervening judges' standing to protect their tenure, Wood and Entz
    
    would still have a sufficient stake in the litigation to satisfy
    
    the Constitution.     In an earlier opinion in this case we said
    
         [a]sserting interests both as a Texas voter and as a
         sitting Texas district judge, Judge Sharolyn Wood moved
         to intervene on the side of the defendant--the state.
         The court allowed her to intervene in her personal
         capacity, permitting Dallas County District Judge Harold
         Entz to do so as well.
    
    League of United Latin American Citizens v. Clements, 
    923 F.2d 365
    ,
    
    367 (5th Cir. 1991)(emphasis added).        In the district court, Judge
    
    Entz moved to intervene as a defendant to defend on his interests
    
    as a judge, a lawyer, and a registered voter in and citizen of
    
                                         22
    Dallas County.      The court's order granting intervention in his
    
    individual capacity encompasses all of these interests.
    
         Thus, the proponents of remand view the judges' intervention
    
    too narrowly, for Wood and Entz also have standing as voters.           The
    
    settlement agreement would deprive voters of the right to vote for
    
    all judges with general jurisdiction over their county.                 The
    
    Eleventh Circuit recently confronted a similar situation.            Meek v.
    
    Metropolitan Dade County, 
    985 F.2d 1471
     (11th Cir. 1993), was a
    
    voting   rights    challenge   to   the   at-large   election   of   county
    
    commissioners in Dade County, Florida.        As here, individual voters
    
    challenged a liability finding that elected officials would not
    
    contest on appeal.      Swann and Sampson were Dade County residents
    
    and voters.       The district court denied them leave to intervene
    
    before trial.      In a second request for leave to intervene, Swann
    
    and Sampson sought to preserve their right to appeal in the event
    
    of an adverse judgment and a decision by defendants not to appeal.
    
    The court found the at-large system illegal and, as feared, the
    
    County Commission decided not to appeal.        When the district court
    
    denied their third motion to intervene, Swann and Sampson appealed.
    
         Our sister court held that the district court abused its
    
    discretion in denying the intervention and affirmed the district
    
    court on the merits.     The court held that the voters had standing,
    
    a sufficient interest both to intervene and carry the appeal when
    
    the state agency declined to do so.       In its view, if the court were
    
    to deny standing to these voters, it "would be forced to conclude
    
    that most of the plaintiffs also lack standing, a conclusion
    
    
                                         23
    foreclosed by the many cases in which individual voters have been
    
    permitted to challenge election practices."       Id. at 1480 (citing
    
    Whitcomb v. Chavis, 
    403 U.S. 124
     (1971); Baker v. Carr, 
    369 U.S. 186
     (1962)).    We agree that the standing of voters in a voting
    
    rights case cannot be gainsaid.   See also O'Hair v. White, 
    675 F.2d 680
    , 688-90 (5th Cir. 1982) (en banc); Henderson v. Fort Worth
    
    Independent School Dist., 
    526 F.2d 286
    , 288-90 (5th Cir. 1976).14
    
                            D. Consent Decrees
    
         Even if all of the litigants were in accord, it does not
    
    follow that the federal court must do their bidding.     The proposal
    
    is not to dismiss the lawsuit, but to employ the injunctive power
    
    of the federal court to achieve a result that the Attorney General
    
    and plaintiffs were not able to achieve through the political
    
    process.   The entry of a consent decree is more than a matter of
    
    agreement among litigants.   It is a "judicial act."    United States
    
    v. Swift & Co., 
    286 U.S. 106
    , 115 (1932).      "[W]hen [the court] has
    
    rendered a consent judgment it has made an adjudication."      Kaspar
    
    Wire Works, Inc. v. Leco Eng'g & Machine, Inc., 
    575 F.2d 530
    , 538-
    
    39 (5th Cir. 1978) (quoting 1B James W. Moore et al., Moore's
    
    Federal Practice ¶ 0.409[5]).          Courts must exercise equitable
    
    discretion before accepting litigants' invitation to perform the
    
    judicial act.
    
    
    
         14
          Our conclusion that Defendant-Intervenors continue to have
    standing in their individual capacities to defend the current
    method of electing trial judges makes it unnecessary for us to
    consider their motion to modify their intervention to enable them
    to do so.
    
                                      24
         A consent decree must arise from the pleaded case and further
    
    the objectives of the law upon which the complaint is based.     See
    
    Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 
    478 U.S. 501
    , 525, 
    106 S. Ct. 3063
    , 3077 (1986).    When presented with
    
    a proposed judgment, the court "must not merely sign on the line
    
    provided by the parties."   United States v. City of Miami, 
    664 F.2d 435
    , 440 (5th Cir. 1981) (en banc) (Rubin, J.).
    
         Because the consent decree does not merely validate a
         compromise but, by virtue of its injunctive provisions,
         reaches into the future and has continuing effect, its
         terms require more careful scrutiny.       Even when it
         affects only the parties, the court should, therefore,
         examine it carefully to ascertain not only that it is a
         fair settlement but also that it does not put the court's
         sanction on and power behind a decree that violates
         Constitution, statute, or jurisprudence. . . . If the
         decree also affects third parties, the court must be
         satisfied that the effect on them is neither unreasonable
         nor proscribed.
    
    Id. at 441 (Rubin, J.) (emphasis added); see also Overton v. City
    
    of Austin, 
    748 F.2d 941
    , 952-53 (5th Cir. 1984); Williams v. City
    
    of New Orleans, 
    729 F.2d 1554
    , 1559 (5th Cir. 1984) (en banc)
    
    (Williams, J.).
    
         The emphasized passage makes a critical point.      A proposed
    
    consent decree is generally--as here--a request for the court to
    
    exercise its equitable powers.    It involves the court's sanction
    
    and power and is not a tool bending without question to the
    
    litigants' will.   As Justice Harlan wrote, "parties cannot, by
    
    giving each other consideration, purchase from a court of equity a
    
    
    
    
                                     25
    continuing injunction."      System Federation No. 91, Ry. Employees'
    
    Dep't, AFL-CIO v. Wright, 
    364 U.S. 642
    , 651 (1961).15
    
         We have recognized that when fewer than all litigants forge a
    
    consent   decree,   issues   affecting   other   parties   remain    to   be
    
    adjudicated.    City of Miami, 664 F.2d at 440 (Rubin, J.).               As
    
    eleven judges recognized in the same case, our preferences for
    
    settlement and accord are insufficient to justify the imposition of
    
    a decree that infringes upon the rights of third parties.           See id.
    
    at 451 (Gee, J., concurring and dissenting).          A consent decree
    
    "cannot dispose of the valid claims of nonconsenting intervenors;
    
    if properly raised, these claims remain and may be litigated by the
    
    intervenor."    Local 93, 478 U.S. at 529, 106 S. Ct. at 3079.
    
         Courts must be especially cautious when parties seek to
    
    achieve by consent decree what they cannot achieve by their own
    
    authority.     Consent is not enough when litigants seek to grant
    
    themselves powers they do not hold outside of court.          People Who
    
    Care v. Rockford Bd. of Educ., 
    961 F.2d 1335
    , 1337 (7th Cir. 1992).
    
    For example, a local government may not use a consent decree to
    
    avoid a state law requiring a referendum before the issuance of
    
    construction bonds.     Dunn v. Carey, 
    808 F.2d 555
    , 560 (7th Cir.
    
    1986).
    
         We expressed our concern regarding the risks attending consent
    
    decrees in Overton v. City of Austin, 
    748 F.2d 941
     (5th Cir. 1984).
    
    In that case, plaintiffs and the city attorney, acting for the city
    
         15
          In the same passage, Wright reminds us that "authority to
    adopt a consent decree comes only from the statute which the
    decree is intended to enforce." 364 U.S. at 651.
    
                                       26
    council, proposed        a   decree    substituting      single-member     council
    
    districts for the at-large council established by the city charter.
    
    A dissenting council member maintained that the council lacked the
    
    authority    to    change    the    existing   scheme     without    a   city-wide
    
    referendum.       Id. at 947 n.5.     In the district court, several black
    
    voters sought       to   intervene     as   defendants    on   the   ground   that
    
    subdistricting would curtail their voting power.               Id. at 944.    The
    
    plaintiffs petitioned for a writ of mandamus to compel the district
    
    court   to    implement       the     proposed    decree       without     further
    
    consideration.      We refused to issue the writ.          In doing so, Overton
    
    recognized the danger of manipulation faced by federal courts.                 We
    
    may be asked to effectuate substantive results that government
    
    officials are not empowered to bring about themselves. Id. at 956.
    
    The risk can be realized in many ways, but is palpable where
    
    sharply divided state officials would draw the federal courts into
    
    a partisan political battle.
    
         Our job is to decide a case or controversy.                     The parties'
    
    high-strung rhetoric does not fully obscure the reality that a live
    
    controversy yet exists.            By declining to remand this case, we do
    
    not slow one whit any march for change in Texas.                     Its elected
    
    leaders are always free to pursue whatever scheme they think best,
    
    through the normal political process. Texas links the jurisdiction
    
    and electoral bases of its district judges and the still-contested
    
    question for this court is its legality.
    
         The procedural posture of this case when the request to remand
    
    to the district court was heard is important.               The issues in this
    
    
                                             27
    case were well known to the entire court.    The case had been fully
    
    tried and its appeal had twice been before a panel of this court
    
    and was before the en banc court a second time.      The issues had
    
    been fully aired in the panel majority and dissenting opinion when
    
    this court vacated the panel opinion.       In sum, we are asked to
    
    remand to the district court to consider entry of a "consent"
    
    decree and to decide whether it would "put the court's sanction on
    
    and power behind a decree that violates Constitution, statute, or
    
    jurisprudence."   City of Miami, 664 F.2d at 441 (Rubin, J.).   More
    
    precisely put, any federal decree must be a tailored remedial
    
    response to illegality.   Cf.   Shaw v. Reno, 
    113 S. Ct. 2816
     (1993).
    
    We are asked to remand for this determination although we are not
    
    persuaded that there is any illegality.
    
         It is not a matter of our withholding announcement of our
    
    decision.   We could not, in any event, remand without correcting
    
    the district court's misapprehensions of law, found even by our
    
    dissenting colleagues. Significant legal errors infected the trial
    
    court's earlier judgment, including its refusal to consider the
    
    effect of partisan voting, its finding of liability in Travis
    
    County now undefended, its selective aggregation of language and
    
    ethnic minorities, its refusal to accord weight to the State's
    
    linkage interest in the totality of the circumstances, and finally,
    
    its heavy reliance upon historical societal discrimination without
    
    bringing this history home to this case.      We cannot escape this
    
    error-correcting task--and when it is done, there is no case.   The
    
    amicus United States agrees with our conclusion that, once the
    
    
                                      28
    proper legal standards are determined, the record presents no
    
    factual issue that needs revisiting.           It follows that the proposed
    
    consent     decree    cannot    respond     to     sufficiently   identified
    
    illegality--because the record demonstrates that there is none.
    
                              E. Chisom v. Edwards
    
         Finally, the parties urging remand point to Chisom v. Edwards,
    
    
    970 F.2d 1408
     (5th Cir. 1992), where we remanded a voting rights
    
    case for the district court to enter a consent decree.             That case
    
    challenged    the    method    of   electing     Louisiana's   Supreme   Court
    
    Justices.    Chisom v. Roemer, 
    111 S. Ct. 2354
    , 2358 (1991).               Our
    
    remand in Chisom, however, resulted from different circumstances.
    
         First, all parties joined the motion to remand, as we were
    
    careful to point out in our order:
    
         The Joint Motion to Remand to Effectuate Settlement filed
         by all parties is hereby granted; and this case is
         remanded to the United States District Court for the
         Eastern District of Louisiana for the limited purpose of
         effectuating a settlement. Jurisdiction of the appeals
         is hereby retained. Upon notification that a consent
         judgment has been entered by the district court, the
         appeals will be dismissed. We express no opinion, of
         course, on the settlement or judgment.
    
    Chisom, 970 F.2d at 1409 (emphasis added). As we have discussed,
    
    the same is not true here.16
    
    
    
         16
          For the same reason, Supreme Court authority does not
    require a remand. In Turnock v. Ragsdale, 
    493 U.S. 987
     (1989),
    the Court granted the parties' joint motion to defer further
    proceedings for the parties to submit a proposed consent decree
    to the district court. Unlike the case before us, the joint
    motion in Turnock was a true joint motion; there were no
    objections. See Ragsdale v. Turnock, 
    941 F.2d 501
    , 503 (7th Cir.
    1991) (recounting procedural history). In spite of its label,
    the Attorney General's motion is far from being a joint motion.
    
                                           29
          Second, the parties in Chisom came to this court asking for
    
    remand carrying a duly enacted state law with them.             They did not
    
    seek to invoke the preemptive force of the federal law.            The decree
    
    in Chisom was agreed to by all parties and adopted into law by the
    
    state legislature.        The consent decree did not set aside any state
    
    laws--and not by accident.         It was carefully crafted to that end.
    
    In   Louisiana,     the   legislature    can   create   more   supreme   court
    
    districts with a two-thirds vote from both houses.             La. Const. Art
    
    5, § 4.17      Article 5, § 3 of the Louisiana Constitution fixes the
    
    number of supreme court justices at seven and establishes that each
    
    shall serve a ten-year term.18        Because the state wished to create
    
    the Orleans district without upsetting the terms of the sitting
    
    justices, Louisiana had to temporarily expand the supreme court to
    
    eight members.19
    
    
    
          17
               Art. 5, § 4 provides:
    
          The state shall be divided into at least six supreme court
          districts, and at least one judge shall be elected from
          each. The districts and the number of judges assigned to
          each on the effective date of this constitution are
          retained, subject to change by law enacted by two-thirds of
          the elected members of each house of the legislature.
          18
               Art. 5, § 3 provides:
    
          The supreme court shall be composed of a chief justice and
          six associate justices, four of whom must concur to render
          judgment. The term of a supreme court judge shall be ten
          years.
          19
          Louisiana's first effort to create an eighth position, and
    thereby resolve the Chisom litigation, came in 1989 in the form
    of a proposed constitutional amendment. However, the voters
    rejected the proposal. See La. Const. Art. 5, §§ 4, 35,
    Historical Notes.
    
                                            30
          While § 3 limits the size of the supreme court to seven
    
    justices, Art. 5, § 5(A) permits the Louisiana Supreme Court to
    
    "assign a sitting or retired judge to any court."              La. Const. Art.
    
    5, § 5(A).      The legislature therefore created an additional place
    
    for a judge on the Court of Appeal for the Fourth Circuit, who,
    
    upon election, would be assigned to the supreme court to serve, in
    
    reality, as the eighth justice.          See La. Rev. Stat. Ann. § 13:312.4
    
    (West Supp. 1993).        This temporary judgeship was to expire with a
    
    vacancy on the supreme court from the first district.                The vacancy
    
    would be filled by an election in the newly created seventh
    
    district      comprised   of   Orleans    Parish.       La.   Rev.   Stat.   Ann.
    
    § 13:101.1 (West Supp. 1993).                 Both of these provisions were
    
    contained in Act 512 which, after receiving the required two-thirds
    
    vote in both houses of the legislature, became law on June 22,
    
    1992.   Official Journal of the Proceedings of the Senate of the
    
    State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official
    
    Journal of the Proceedings of the House of the State of Louisiana,
    
    18th Reg. Sess. at 31 (June 16, 1992).               The Louisiana Legislature
    
    provided that Act 512 would not go into effect unless the federal
    
    court entered a consent decree in Chisom.                 La. Rev. Stat. Ann.
    
    § 13:101.l (West Supp. 1993).
    
          The Texas Legislature refused to take positive action, and the
    
    settlement agreement attempts to avoid constitutional requirements.
    
    The   Texas    Constitution    requires       that   judges   be   elected   from
    
    districts no smaller than a county, absent a majority vote by the
    
    
    
    
                                             31
    citizens of that county.     Tex. Const. Art. 5, §§ 7, 7a(i).20    The
    
    settlement agreement is not contingent on approval by the voters of
    
    each county.      The legislature has not proposed a constitutional
    
    amendment.     It has made no laws.
    
                                 F. Federalism
    
         Then we have all sides claiming the high ground of federalism.
    
    Some of the assertions are creative.         The suggestion that state
    
    political groups, unable to muster sufficient political force to
    
    change the system, can by "agreement" enlist the preemptive power
    
    of the federal court to achieve the same end stands federalism on
    
    its head.       Of course, we defer to legislative will and state
    
    decision.     Here, the "decision" to which we are asked to defer is
    
    a decision by a political faction that the federal court should
    
    order the state to change its system.   We do not share this curious
    
    view of federalism.
    
         20
              Art. 5, § 7 provides:
    
              The state shall be divided into judicial districts,
         with each district having one or more judges as may be
         provided by law or by this Constitution. . . .
    
    Art. 5, § 7a(i) provides:
    
              The legislature, the Judicial Districts Board, or the
         Legislative Redistricting Board may not redistrict the
         judicial districts to provide for any judicial district
         smaller in size than an entire county except as provided by
         this section. Judicial districts smaller in size than the
         entire county may be created subsequent to a general
         election where a majority of the persons voting on the
         proposition adopt the proposition "to allow the division of
              County into judicial districts composed of parts of
            County." No redistricting plan may be proposed or
         adopted by the legislature, the Judicial Districts board, or
         the Legislative Redistricting Board in anticipation of a
         future action by the voters of any county.
    
                                      32
                            III. Racial Bloc Voting
    
         As amended, § 2 of the Voting Rights Act prohibits states from
    
    imposing or applying any "standard, practice, or procedure . . .
    
    which results in a denial or abridgement of the right of any
    
    citizen of the United States to vote on account of race or color."
    
    A minority group may establish a violation of this provision by
    
    proving "that its members have less opportunity than other members
    
    of the electorate to participate in the political process and to
    
    elect representatives of their choice."21     Congress intended "to
    
    make clear that proof of discriminatory intent is not required to
    
    establish a violation of Section 2" by "restor[ing] the legal
    
    
         21
              Section 2 reads in full:
    
         (a) No voting qualification or prerequisite to voting or
         standard, practice, or procedure shall be imposed or applied
         by any State or political subdivision in a manner which
         results in a denial or abridgement of the right of any
         citizen of the United States to vote on account of race or
         color, or in contravention of the guarantees set forth in
         section 4(f)(2), as provided in subsection (b) of this
         section.
    
         (b) A violation of subsection (a) is established if, based
         on the totality of the circumstances, it is shown that the
         political processes leading to nomination or election in the
         State or political subdivision are not equally open to
         participation by members of a class of citizens protected by
         subsection (a) of this section in that its members have less
         opportunity than other members of the electorate to
         participate in the political process and to elect
         representatives of their choice. The extent to which
         members of a protected class have been elected to office in
         the State or political subdivision is one circumstance which
         may be considered: Provided, That nothing in this section
         establishes a right to have members of a protected class
         elected in numbers equal to their proportion in the
         population.
    
    42 U.S.C. § 1973.
    
                                         33
    standards" which prevailed in constitutional voting discrimination
    
    cases prior to Mobile v. Bolden, 
    446 U.S. 55
     (1980).        S. Rep. 417
    
    at 2, reprinted in 1982 U.S. Code Cong. & Admin. News at 206.
    
    Specifically, the 1982 amendments "codify" the "results test"
    
    articulated in White v. Regester, 
    412 U.S. 755
     (1973).          Id.
    
         Section 2 claims brought against multimember schemes are
    
    governed by the framework established in Thornburg v. Gingles, 
    478 U.S. 30
     (1986).    Under Gingles, plaintiffs challenging an at-large
    
    system on behalf of a protected class of citizens must demonstrate
    
    that (1) the group is sufficiently large and geographically compact
    
    to constitute a majority in a single-member district; (2) it is
    
    politically cohesive; and (3) the white majority votes sufficiently
    
    as a bloc to enable it usually to defeat the minority's preferred
    
    candidate.   Growe v. Emison, 
    113 S. Ct. 1075
    , 1084 (1993); Gingles,
    
    478 U.S. at 50-51.     Satisfaction of these three "preconditions,"
    
    Voinovich v. Quilter, 
    113 S. Ct. 1149
    , 1157 (1993), is necessary,
    
    Gingles, 478 U.S. at 50, but not sufficient to establish liability
    
    under § 2.   Chisom v. Roemer, 
    111 S. Ct. 2354
    , 2365 (1991); Citizens
    
    for Better Gov't v. City of Westwego, 
    946 F.2d 1109
    , 1116 (5th Cir.
    
    1991) (Westwego III).     Plaintiffs must also show that, under the
    
    "totality    of   circumstances,"   they   do   not   possess   the   same
    
    opportunities to participate in the political process and elect
    
    representatives of their choice enjoyed by other voters.          Courts
    
    
    
    
                                        34
    are guided in this second inquiry by the so-called Zimmer factors
    
    listed in the Senate Report.22
    
         22
          The Senate Report indicates that "[t]ypical factors
    include":
    
         1. the extent of any history of official discrimination
         in the state or political subdivision that touched the
         right of the members of the minority group to register,
         to vote, or otherwise to participate in the democratic
         process;
    
         2. the extent to which voting in the elections of the state
         or political subdivision is racially polarized;
    
         3. the extent to which the state or political subdivision
         has used unusually large election districts, majority vote
         requirements, anti-single shot provisions, or other voting
         practices or procedures that may enhance the opportunity for
         discrimination against the minority group;
    
         4. if there is a candidate slating process, whether the
         members of the minority group have been denied access to
         that process;
    
         5. the extent to which members of the minority group in the
         state or political subdivision bear the effects of
         discrimination in such areas as education, employment and
         health, which hinder their ability to participate
         effectively in the political process;
    
         6. whether political campaigns have been characterized by
         overt or subtle racial appeals;
    
         7. the extent to which members of the minority group have
         been elected to public office in the jurisdiction.
    
    
    Additional factors that in some cases have had probative value as
    part of plaintiffs' evidence to establish a violation are:
    
         whether there is a significant lack of responsiveness
         on the part of elected officials to the particularized
         needs of the members of the minority group.
    
         whether the policy underlying the state or political
         subdivision's use of such voting qualification,
         prerequisite to voting, or standard, practice or
         procedure is tenuous.
    
    
                                     35
         A central issue here, one that divided the panel and one over
    
    which the parties vigorously disagree, concerns Gingles' white bloc
    
    voting inquiry and the closely related Zimmer factor directing
    
    courts to examine "the extent to which voting . . . is racially
    
    polarized."   S. Rep. 417 at 29, reprinted in 1982 U.S. Code Cong.
    
    & Admin. News at 206.    As the Court in Gingles held, the question
    
    here is not whether white residents tend to vote as a bloc, but
    
    whether such bloc voting is "legally significant."    Gingles, 478
    
    U.S. at 55; Salas v. Southwest Texas Jr. College Dist., 
    964 F.2d 1542
    , 1553 (5th Cir. 1992).   In finding a violation of § 2 in each
    
    of the nine challenged counties, the district court held that
    
    plaintiffs need only demonstrate that whites and blacks generally
    
    support different candidates to establish legally significant white
    
    bloc voting. Because "it is the difference between choices made by
    
    blacks and whites alone . . . that is the central inquiry of § 2,"
    
    the court excluded evidence tending to prove that these divergent
    
    voting patterns were attributable to factors other than race as
    
    "irrelevant" and "legally [in]competent."
    
         On appeal, defendants contend that the district court erred in
    
    refusing to consider the nonracial causes of voting preferences
    
    they offered at trial.    Unless the tendency among minorities and
    
    whites to support different candidates, and the accompanying losses
    
    
    
    S. Rep. 417 at 28-29, reprinted in 1982 U.S. Code Cong. & Admin.
    News at 206-07. These factors are derived from our decision in
    Zimmer v. McKeithen, 
    485 F.2d 1297
     (5th Cir. 1973), aff'd sub nom
    East Carroll Parish School Board v. Marshall, 
    424 U.S. 636
    (1976), as well as White. See S. Rep. 417 at 28 n.113, reprinted
    in 1982 U.S. Code Cong. & Admin. News at 206 n.113.
    
                                     36
    by   minority    groups   at   the     polls,   are   somehow   tied   to   race,
    
    defendants      argue,    plaintiffs'      attempt    to   establish     legally
    
    significant white bloc voting, and thus their vote dilution claim
    
    under § 2, must fail.          When the record indisputably proves that
    
    partisan affiliation, not race, best explains the divergent voting
    
    patterns   among    minority     and    white   citizens   in   the    contested
    
    counties, defendants conclude, the district court's judgment must
    
    be reversed.
    
          We agree.    The scope of the Voting Rights Act is indeed quite
    
    broad, but its rigorous protections, as the text of § 2 suggests,
    
    extend only to defeats experienced by voters "on account of race or
    
    color."      Without an inquiry into the circumstances underlying
    
    unfavorable election returns, courts lack the tools to discern
    
    results that are in any sense "discriminatory," and any distinction
    
    between deprivation and mere losses at the polls becomes untenable.
    
    In holding that the failure of minority-preferred candidates to
    
    receive support from a majority of whites on a regular basis,
    
    without more, sufficed to prove legally significant racial bloc
    
    voting, the district court loosed § 2 from its racial tether and
    
    fused illegal vote dilution and political defeat. In so doing, the
    
    district   court    ignored     controlling     authorities:      Whitcomb    v.
    
    Chavis, 
    403 U.S. 124
     (1971), which established a clean divide
    
    between actionable vote dilution and "political defeat at the
    
    polls"; the 1982 amendments, enacted to restore a remedy in cases
    
    "where a combination of public activity and private discrimination
    
    have joined to make it virtually impossible for minorities to play
    
    
                                             37
    a meaningful role in the electoral process," Hearings on the Voting
    
    Rights Act Before the Subcomm. on the Constitution of the Senate
    
    Comm. of the Judiciary, 97th Cong., 2d Sess. 1367-68 (statement of
    
    Prof. Drew Days) (emphasis added); and Thornburg v. Gingles, 
    478 U.S. 30
     (1986), where a majority of the Justices rejected the very
    
    test employed by the district court as a standard crafted to shield
    
    political   minorities   from   the    vicissitudes    of    "interest-group
    
    politics rather than a rule hedging against racial discrimination."
    
    Id. at 83 (White, J., concurring); id. at 101 (O'Connor, J., joined
    
    by Burger, C.J., Powell and Rehnquist, JJ., concurring).                We must
    
    correct these errors.
    
                 A. Whitcomb v. Chavis and White v. Regester
    
         The Senate Report indicates that the 1982 amendments to § 2
    
    were intended to "codify" the results test as employed in White and
    
    Whitcomb.    See S. Rep. 417 at 2, 20-23, 32-33, reprinted in 1982
    
    U.S. Code Cong. & Admin. News at 197-201, 210-11; Gingles, 478 U.S.
    
    at 97 (O'Connor, J., concurring) ("In enacting § 2, Congress
    
    codified    the   'results'   test    this   Court   had    employed,    as   an
    
    interpretation     of   the   Fourteenth      Amendment,      in   White      and
    
    Whitcomb"); Jones v. City of Lubbock, 
    727 F.2d 364
    , 379 (5th Cir.
    
    1984) (the amended § 2 "codifies pre-Bolden voting dilution law").
    
    Consequently, "it is to Whitcomb and White that we should look in
    
    the first instance in determining how great an impairment of
    
    minority voting strength is required to establish vote dilution in
    
    violation of § 2."        Gingles, 478 U.S. at 97 (O'Connor, J.,
    
    concurring).
    
    
                                          38
          In Whitcomb, black citizens residing in one part of Marion
    
    County, referred to as the "ghetto" by the Court, claimed that the
    
    county's      at-large    method   of   electing   members      to   the    state
    
    legislature unconstitutionally diluted their votes.              The "[s]trong
    
    differences" between "ghetto" residents and adjacent communities
    
    "in terms of housing conditions, income and educational levels,
    
    rates of unemployment, juvenile crime, and welfare assistance," 403
    
    U.S. at 132,23 correlated closely with voting patterns in the
    
    county.      "Ghetto" residents "voted heavily Democratic," but since
    
    the   county's     more   affluent    white   majority    consistently      voted
    
    Republican, black-preferred candidates were defeated in four of the
    
    five elections between 1960 and 1968.            Id. at 150.      The Whitcomb
    
    Court recognized that the at-large electoral scheme caused the
    
    "voting power of ghetto residents [to be] 'cancelled out,'" id. at
    
    153, but held that this result by itself did not provide grounds
    
    for   relief.      Noting   that     blacks   enjoyed    full   access     to   the
    
    political process,24 the Court reasoned that "had the Democrats won
    
          23
          See also Chavis v. Whitcomb, 
    305 F. Supp. 1364
    , 1376-81
    (S.D. Ind. 1969).
          24
               The Court stated:
    
          We have discovered nothing in the record or in the
          court's findings indicating that poor Negroes were not
          allowed to register or vote, to choose the political
          party they desired to support, to participate in its
          affairs or to be equally represented on those occasions
          when legislative candidates were chosen. Nor did the
          evidence purport to show or the court find that
          inhabitants of the ghetto were regularly excluded from
          the slates of both major parties, thus denying them the
          chance of occupying legislative seats.
    
    Id. at 149-50.
    
                                            39
    all of the elections or even most of them, the ghetto would have no
    
    justifiable complaints about representation."      Id. at 152.     For
    
    this reason, the Court concluded that the "failure of the ghetto to
    
    have legislative seats in proportion to its population emerges more
    
    as a function of losing elections than of built-in bias against
    
    poor Negroes."    Id. at 153.
    
           The Whitcomb Court was reluctant to view the plaintiffs'
    
    claims of vote dilution as anything more than "a euphemism for
    
    political defeat at the polls," id., for, absent evidence of a lack
    
    of access to the political system, there was no principle by which
    
    the Court could distinguish the "ghetto's" claims and those of
    
    other unsuccessful political groups:
    
           [A]re poor Negroes of the ghetto any more under-
           represented than poor ghetto whites who also voted
           Democratic and lost, or any more discriminated against
           than other interest groups or voters in Marion County
           with allegiance to the Democratic Party, or, conversely,
           any less represented than Republican areas or voters in
           years of Republican defeat? We think not. The mere fact
           that one interest group or another concerned with the
           outcome of Marion County elections has found itself
           outvoted and without legislative seats of its own
           provides no basis for invoking constitutional remedies
           where, as here, there is no indication that this segment
           of the population is being denied access to the political
           system.
    
    Id. at 154-55.    To grant relief to black residents in this case,
    
    the Court held, "would make it difficult to reject claims of
    
    Democrats, Republicans, or members of any political organization in
    
    Marion County who live in what would be safe districts in a single-
    
    member district system but who in one year or another, or year
    
    after year, are submerged in a multimember district vote."     Id. at
    
    156.
    
                                      40
          The Court's assertion that plaintiffs' racial vote dilution
    
    claim was indistinguishable from complaints which might be brought
    
    by any unsuccessful interest group hinged on its determination that
    
    "ghetto" residents did not suffer from a lack of access to the
    
    political process.      Despite the presence of vast disparities in
    
    virtually every significant measure of socioeconomic status, the
    
    Court found that black voters stood on the same footing with whites
    
    in   vying   for   representation   within   Marion    County.       "Ghetto"
    
    residents had in fact experienced a string of losses at the polls
    
    in recent years, but these defeats were shared equally among all
    
    members of the Democratic Party.
    
          The Court confronted very different circumstances two years
    
    later in White v. Regester, 
    412 U.S. 755
     (1973).                    The Court
    
    confirmed Whitcomb's rejection of the claim that "every racial or
    
    political group has a constitutional right to be represented in the
    
    state   legislature,"    id.   at   769,   and   reiterated   the    standard
    
    established in its earlier decision: a minority group must prove
    
    "that its members had less opportunity than did other residents in
    
    the district to participate in the political processes and to elect
    
    legislators of their choice."        Id. at 766 (citing Whitcomb, 403
    
    U.S. at 149-50).     Unlike the plaintiffs in Whitcomb, however, the
    
    black residents of Dallas County and the Hispanic voters in Bexar
    
    County each established that they had been effectively excluded
    
    from the political processes leading to the nomination and election
    
    of the Texas House of Representatives.           412 U.S. at 766-70.
    
    
    
    
                                         41
           Specifically, black voters in Dallas labored under the yoke of
    
    Texas' long history of official discrimination and were subjected
    
    to   several    procedural       devices    which,   while     not    invidious    in
    
    themselves, "enhanced the opportunity for racial discrimination."
    
    Id. at 766.        "More fundamentally," the Court noted, the Dallas
    
    Committee       for     Responsible        Government,    "a     white-dominated
    
    organization that is in effective control of Democratic Party
    
    candidate slating," had slated only two black candidates in its
    
    history, who, not coincidentally, constituted the only two blacks
    
    ever to have served in the Dallas County delegation to the Texas
    
    House since Reconstruction.            Id. at 766-67.        The DCRG failed to
    
    display any "good-faith concern for the political and other needs
    
    and aspirations of the Negro community," and in fact regularly
    
    relied on racial campaign tactics to defeat candidates supported by
    
    black residents.             Id. at 767.     Consequently, the Court had no
    
    reason to disturb the district court's conclusion "that 'the black
    
    community has been effectively excluded from participation in the
    
    Democratic primary selection process,' and was therefore generally
    
    not permitted to enter into the political process in a reliable and
    
    meaningful manner."            Id. (quoting Graves v. Barnes, 
    343 F. Supp. 704
    , 726 (W.D. Tex. 1972)).
    
           The Court also upheld a similar finding that Mexican-Americans
    
    likewise    had       been    "'effectively     removed   from       the    political
    
    processes of Bexar [County] in violation of all the Whitcomb
    
    standards.'"       Id. at 769 (quoting Graves, 343 F. Supp. at 733).
    
    Like    black     residents      of   Texas,    Mexican-Americans          "had   long
    
    
                                               42
    'suffered from, and continue[d] to suffer from, the results and
    
    effects of invidious discrimination and treatment in the field of
    
    education, employment, economics, health, politics and others.'"
    
    Id. at 768 (quoting Graves, 343 F. Supp. at 728)).                      In addition,
    
    the    district     court     determined      that    "cultural        and    language
    
    barrier[s] . . . 'conjoined with the poll tax and the most
    
    restrictive     voter   registration       procedures       in   the    nation      have
    
    operated   to      effectively    deny   Mexican-Americans         access      to    the
    
    political processes in Texas even longer than the Blacks were
    
    formally denied access by the white primary.'"                          Id. (quoting
    
    Graves, 343 F. Supp. at 731).         The exclusionary effects of past and
    
    present discrimination, the Court found, were palpably reflected in
    
    low voting registration among Mexican-Americans, the election of
    
    only five Bexar County Mexican-Americans to the Texas Legislature
    
    since 1880, and the county delegation's unresponsiveness to the
    
    community's interests.           Id. at 768-69.       Given that the district
    
    court's findings flowed from "a blend of history and an intensely
    
    local appraisal" of conditions in Bexar County, the Court was "not
    
    inclined to overturn" its conclusion that the multimember district
    
    "invidiously         excluded      Mexican-Americans             from        effective
    
    participation in political life."             Id. at 769.    As we will explain,
    
    this earlier time in Texas history and the elections at issue here
    
    present stark contrasts. The record before us contains no evidence
    
    that   past   or    present     discrimination       has   affected      minorities'
    
    political access in any way.
    
    
    
    
                                             43
         The principles announced and applied in Whitcomb and White are
    
    instructive and, we believe, controlling.        As Justice White, the
    
    author of these opinions, recently indicated, the central "theme"
    
    of Whitcomb and White is "that it is not mere suffering at the
    
    polls but discrimination in the polity with which the Constitution
    
    is concerned."    Shaw v. Reno, 
    113 S. Ct. 2816
    , 2835 (1993) (White,
    
    J., dissenting). Beyond the bounds of this litigation, the clarity
    
    with which the Whitcomb Court articulated the principles underlying
    
    the "results" test has largely forestalled confusion or doubt, even
    
    among those whom plaintiffs might be inclined to count as allies.
    
    See, e.g., Jones v. City of Lubbock, 
    727 F.2d 364
    , 384 (5th Cir.
    
    1984) ("Even where an at-large system interacts with a racially or
    
    ethnically   polarized   electorate   to   the   disadvantage   of   the
    
    minority, the 'result' is not necessarily a denial of political
    
    access . . . .     [T]he 'result' in Whitcomb [is] that polarized
    
    voting does not render an at-large system dilutive of minority
    
    voting strength"); Pamela S. Karlan, Undoing the Right Thing:
    
    Single-Member Offices and the Voting Rights Act, 
    77 Va. L
    . Rev. 1,
    
    22 n.78 (1991).    Justice Marshall, for example, provided a clear
    
    explanation of the Court's holding in his dissent in Mobile v.
    
    Bolden, 
    446 U.S. 55
     (1980):
    
         In Whitcomb v. Chavis, we again repeated and applied the
         Fortson [effects] standard, but determined that the Negro
         community's lack of success at the polls was the result
         of partisan politics, not racial vote dilution.       The
         Court stressed that both the Democratic and Republican
         Parties had nominated Negroes and several had been
         elected. Negro candidates lost only when their entire
         party slate went down to defeat. In addition, the Court
         was impressed that there was no finding that officials
         had been unresponsive to Negro concerns.
    
                                     44
    Id. at 109 (Marshall, J., dissenting) (citations omitted).
    
         Justice Marshall's references to the "lack of success at the
    
    polls" as   a    "result"   of   "partisan    politics,    not   racial    vote
    
    dilution," closely tracks the relevant language in Whitcomb, where
    
    the Court held that the "cancell[ing] out" of the "voting power of
    
    ghetto residents" was more "a function of losing elections" or
    
    "political defeat" than of "built-in bias against poor Negroes."
    
    403 U.S. at 153.        Absent evidence that minorities have been
    
    excluded from the political process, a "lack of success at the
    
    polls" is not sufficient to trigger judicial intervention.            Courts
    
    must undertake the additional inquiry into the reasons for, or
    
    causes of, these electoral losses in order to determine whether
    
    they were the product of "partisan politics" or "racial vote
    
    dilution," "political defeat" or "built-in bias."           It is only upon
    
    concluding that a minority group's failure to prevail at the polls,
    
    that is, their failure to attract the support of white voters, was
    
    the "result" or "function" of "racial vote dilution" or "built-in
    
    bias," that a court may find that minority plaintiffs have suffered
    
    "a denial or abridgement of the right . . . to vote on account of
    
    race or color."    In sum, Whitcomb unmistakably prescribes the very
    
    inquiry   into   the   causes    underlying   the   lack   of    support   for
    
    minority-preferred candidates among white voters with which the
    
    district court dispensed.
    
         As Justice Marshall suggested, failures of a minority group to
    
    elect representatives of its choice that are attributable to
    
    "partisan politics" provide no grounds for relief. Section 2 is "a
    
    
                                         45
    balm for racial minorities, not political ones--even though the two
    
    often coincide."       Baird v. Consolidated City of Indianapolis, 
    976 F.2d 357
    , 361 (7th Cir. 1992) (citing Whitcomb).                     "The Voting
    
    Rights Act does not guarantee that nominees of the Democratic Party
    
    will be elected, even if black voters are likely to favor that
    
    party's candidates."          Id.   Rather, § 2 is implicated only where
    
    Democrats lose because they are black, not where blacks lose
    
    because they are Democrats.           While this rule is easier stated than
    
    applied, the Whitcomb Court's application of the "results" test to
    
    the   facts   before    it    provides    helpful   and    indeed    dispositive
    
    guidance.        As we explain in greater detail below, the Court's
    
    dismissal in Whitcomb of the plaintiffs' vote dilution claim as a
    
    "mere   euphemism      for   political    defeat    at    the   polls,"   despite
    
    evidence    of    polarized    voting,    the   lingering       effects   of   past
    
    discrimination,      and     little    electoral    success      among    minority
    
    candidates, precludes finding a violation of § 2 in most, but not
    
    all, of the counties at issue.
    
                                 B. The 1982 Amendments
    
          The Senate Report accompanying the 1982 amendments to § 2
    
    states that Congress intended to "codify" the "results test"
    
    articulated and employed in Whitcomb and White. Congress of course
    
    retained the statutory language restricting relief under § 2 to
    
    "denial[s] or abridgment[s] of the right . . . to vote on account
    
    of race or color."       This limitation was not so much the product of
    
    legislative discretion as constitutional imperative, given that the
    
    scope of Congress' remedial power under the Civil War Amendments is
    
    
                                             46
    defined in large part by the wrongs they prohibit.             See, e.g., City
    
    of Rome v. United States, 
    446 U.S. 156
    , 206 (1980) (Rehnquist, J.,
    
    dissenting); Oregon v. Mitchell, 
    400 U.S. 112
    , 152 (1970) (Harlan,
    
    J., concurring in part and dissenting in part).               Thus, the Senate
    
    Report explained that the 1982 amendments avoided constitutional
    
    difficulty because "the very terms and operation of [§ 2] confine
    
    its application to actual racial discrimination."               S.Rep. 417 at
    
    43, reprinted in 1982 U.S. Code Cong. & Admin. News at 221.
    
           Congress embraced Whitcomb on terms consistent with § 2's
    
    limitation to cases of "actual racial discrimination." Noting that
    
    the claim before the Court in Whitcomb alleged vote dilution on
    
    grounds that "black ghetto residents with [distinct] legislative
    
    interests    had    been     consistently       underrepresented      in    the
    
    legislature," the Senate Report recounted what it regarded as the
    
    relevant facts of the case:
    
           The evidence showed that the ghetto area voted
           Democratic, that the Republicans won four of the five
           elections from 1960 to 1968, and that in 1964, when the
           Democrats won, ghetto area senators and representatives
           were elected. Nine blacks had in fact been elected to
           the legislature from the at-large districts between
           [1960] and 1968.
    
    Id. at 20-21, reprinted in 1982 U.S. Code Cong. & Admin. News at
    
    198.     The facts cited by the Senate mirror those previously
    
    identified   by    Justice   Marshall    in    Bolden   and    stressed    here:
    
    Plaintiffs were unsuccessful in years in which their party suffered
    
    electoral defeat; they were able to elect representatives of their
    
    choice when their party prevailed.            Not surprisingly, the Senate
    
    
    
    
                                        47
    adopted     Whitcomb's     central     teaching    in     presenting    what     it
    
    understood to be the kernel of the decision:
    
         The failure of the ghetto to have legislative seats in
         proportion to its population emerges more as a function
         of losing elections than of built-in bias against poor
         Negroes. The voting power of ghetto residents may have
         been "cancelled out," as the district court held, but
         this seems a mere euphemism for political defeat at the
         polls.
    
    Id. at 21 (quoting Whitcomb, 403 U.S. at 153), reprinted in 1982
    
    U.S. Code Cong. & Admin. News at 198.
    
         In keeping with Whitcomb's sharp distinction between "built-in
    
    bias" and "political defeat at the polls," the Senate Report
    
    indicated that a proper application of the results test requires
    
    courts    to   "distinguish[]      between     situations      in   which   racial
    
    politics play an excessive role in the electoral process, and
    
    communities in which they do not."             Id. at 33, reprinted in 1982
    
    U.S. Code Cong. & Admin. News at 211.              The Senate Report, again
    
    following      Whitcomb,    accorded    this    inquiry    into     "racial    bloc
    
    voting," that is, whether "'race is the predominant determinant of
    
    political preference,'" dispositive significance: Absent a showing
    
    of "racial bloc voting," the Senate Report asserted, "it would be
    
    exceedingly     difficult    for   plaintiffs     to    show    that   they    were
    
    effectively excluded from fair access to the political process
    
    under the results test."       Id. (quoting S.Rep. 417 at 148 (Report of
    
    the Subcommittee on the Constitution)), reprinted in 1982 U.S. Code
    
    Cong. & Admin. News at 321).             Since the results test itself,
    
    contrary to critics' charges, "makes no assumptions one way or the
    
    other about the role of racial political considerations in a
    
    
                                            48
    particular community," id. at 34, reprinted in 1982 U.S. Code Cong.
    
    & Admin. News at 212, the Senate Report emphasized that plaintiffs
    
    must supply affirmative proof of "racial bloc voting."               The "mere
    
    existence of underrepresentation plus a history of dual schools"
    
    plainly does not suffice to make out a violation of § 2.               Id.
    
           It is difficult to see how the record in this case could
    
    possibly support a finding of liability under the approach outlined
    
    in the Senate Report.            Plaintiffs have not even attempted to
    
    establish proof of racial bloc voting by demonstrating that "race,"
    
    not,    as    defendants      contend,    partisan    affiliation,    "is     the
    
    predominant      determinant     of    political   preference."      They   have
    
    instead maintained, in the very teeth of the Senate Report, that
    
    such a showing is unnecessary. Because the district court accepted
    
    this argument, the test employed at trial enabled plaintiffs to
    
    prevail by proving little more than a lack of success at the polls
    
    and a history of discrimination.              While this standard finds clear
    
    support in Justice Brennan's plurality opinion in Thornburg v.
    
    Gingles, 
    478 U.S. 30
     (1986), it "simply was not the approach used
    
    by   the     courts   under   the     White/Zimmer   test"   and   codified   by
    
    Congress. S. Rep. 417 at 34, reprinted in 1982 U.S. Code Cong. &
    
    Admin. News at 212.
    
                               C. Thornburg v. Gingles
    
           Justice Brennan's discussion of the first and second Gingles
    
    factors received majority support.               Gingles, 478 U.S. at 50-51,
    
    
    
    
                                             49
    56.25        With respect to the third element, however, five justices
    
    rejected Justice Brennan's proposed standard for proving racial
    
    bloc voting.         Id. at 83 (White, J., concurring); id. at 100-01
    
    (O'Connor, J., joined by Burger, C.J., Powell and Rehnquist, JJ.,
    
    concurring).         For this reason, we believe that it is to these
    
    opinions, not Justice Brennan's, that we should look in attempting
    
    to define the contours of the inquiry into legally significant bloc
    
    voting.
    
            Despite the presence of express language to the contrary in
    
    the Senate Report, see S. Rep. 417 at 33 ("racial bloc voting" is
    
    established when "race is the predominant determinant of political
    
    preference"), reprinted in 1982 U.S. Code Cong. & Admin. News at
    
    211, Justice Brennan held that racial bloc voting or "racially
    
    polarized voting" did not describe divergent "voting patterns for
    
    which the principal cause is race."                Gingles, 478 U.S. at 61.
    
    Instead, he asserted that "[i]t is the difference between the
    
    choices made        by   blacks   and    whites--not    the   reasons   for     that
    
    difference--that [matters]."             Id.   A consideration of "irrelevant
    
    variables"        such   as   partisan    affiliation   or    the   race   of   the
    
    candidate, Justice Brennan urged, would "distort[] the equation and
    
    
    
    
            25
          In order to make out a § 2 vote dilution claim under
    Gingles, minority plaintiffs challenging an at-large system must
    prove that: (1) the group is sufficiently large and
    geographically compact to constitute a majority in a single-
    member district; (2) it is politically cohesive; and (3) the
    white majority votes sufficiently as a bloc to enable it usually
    to defeat the minority's preferred candidate. Gingles, 478 U.S.
    at 50-51.
    
                                              50
    yield[] results that are indisputably incorrect under § 2 and the
    
    Senate Report."     Id. at 64.
    
         Justice      Brennan's      assertion     that   racial   political
    
    considerations had no role in examining racial bloc voting was
    
    squarely rejected by five Justices in Gingles.           478 U.S. at 83
    
    (White, J., concurring); id. at 100-01 (O'Connor, J., joined by
    
    Burger, C.J., Powell and Rehnquist, JJ., concurring).            Justice
    
    White argued that
    
         Justice Brennan states in Part III-C that the crucial
         factor in identifying polarized voting is the race of the
         voter and that the race of the candidate is irrelevant.
         Under this test, there is polarized voting if the
         majority of white voters vote for different candidates
         than the majority of the blacks, regardless of the race
         of the candidates. I do not agree. Suppose an eight-
         member multimember district that is 60% white and 40%
         black, the blacks being geographically located so that
         two safe black single-member districts could be drawn.
         Suppose further that there are six white and two black
         Democrats running against six white and two black
         Republicans. Under Justice Brennan's test, there would
         be polarized voting and a likely § 2 violation if all the
         Republicans, including the two blacks, are elected, and
         80% of the blacks in the predominately black areas vote
         Democratic . . . .      This is interest-group politics
         rather than a rule hedging against racial discrimination.
         I doubt that this is what Congress had in mind in
         amending § 2 as it did, and it seems quite at odds with
         the discussion in Whitcomb v. Chavis, 
    403 U.S. 124
    , 149-
         160 (1971).
    
    Id. at 83 (White, J., concurring) (emphasis added).              Justice
    
    O'Connor joined Justice White in maintaining that evidence that
    
    white and minority voters generally supported different candidates
    
    did not constitute legally significant racial bloc voting where
    
    these patterns were attributable to partisan affiliation rather
    
    than the race of the candidate.           She therefore rejected Justice
    
    Brennan's position that
    
                                         51
         evidence that the divergent racial voting patterns may be
         explained in part by causes other than race, such as an
         underlying divergence in the interests of minority and
         white voters . . . . can never affect the overall vote
         dilution inquiry. Evidence that a candidate preferred by
         the minority group in a particular election was rejected
         by white voters for reasons other than those which made
         that candidate the preferred choice of the minority group
         would seem clearly relevant in answering the question
         whether bloc voting by white voters will consistently
         defeat minority candidates. Such evidence would suggest
         that another candidate, equally preferred by the minority
         group, might be able to attract greater white support in
         future elections.
    
              I believe Congress also intended that explanations
         of the reasons why white voters rejected minority
         candidates would be probative of the likelihood that
         candidates elected without decisive minority support
         would be willing to take the minority's interests into
         account. In a community that is polarized along racial
         lines, racial hostility may bar these and other indirect
         avenues of political influence to a much greater extent
         than in a community where racial animosity is absent
         although the interests of racial groups diverge. Indeed,
         the Senate Report clearly stated that one factor that
         could have probative value in § 2 cases was "whether
         there is a significant lack of responsiveness on the part
         of elected officials to the particularized needs of the
         members of the minority group." S. Rep., at 29. The
         overall vote dilution inquiry neither requires nor
         permits an arbitrary rule against consideration of all
         evidence concerning voting preferences other than
         statistical evidence of racial voting patterns. Such a
         rule would give no effect whatever to the Senate Report's
         repeated emphasis on "intensive racial politics," on
         "racial political considerations," and on whether "racial
         politics . . . dominate the electoral process" as one
         aspect of the "racial bloc voting" that Congress deemed
         relevant to showing a § 2 violation.      Id., at 33-34.
         Similarly, I agree with Justice White that Justice
         Brennan's conclusion that the race of the candidate is
         always irrelevant in identifying racially polarized
         voting conflicts with Whitcomb and is not necessary to
         the disposition of this case. Ante, at 83 (concurring).
    
    Id. at 100-01 (O'Connor, J., concurring) (emphasis added).
    
         As courts and commentators alike have noted, Justice White and
    
    Justice O'Connor were united in their fidelity to Whitcomb's
    
    
                                    52
    distinction between vote dilution and partisan politics and in
    
    their opposition to Justice Brennan's attempt to expunge this
    
    teaching from the bloc voting inquiry.               See, e.g., Baird v.
    
    Consolidated City of Indianapolis, 
    976 F.2d 357
    , 361 (7th Cir.
    
    1992) ("Justice White . . . observ[ed] that system leading to the
    
    election   of   black     Republicans     could   not   be    dismissed    as
    
    discriminatory.    To disregard the race of the victors, Justice
    
    White concluded, 'is interest-group politics rather than a rule
    
    hedging against racial discrimination.' Justice O'Connor agreed")
    
    (citation omitted); Note, Voting Rights Act Section 2: Racially
    
    Polarized Voting and the Minority Community's Representative of
    
    Choice, 
    89 Mich. L
    . Rev. 1038, 1044 (1991); Note, Defining the
    
    Minority Preferred Candidate Under Section 2, 99 Yale L.J. 1651,
    
    1662-63 (1990).     The division in Gingles between the Brennan
    
    plurality and the five Justices who supported the White/O'Connor
    
    approach cuts deep, reflecting quite different visions of voting
    
    rights and their statutory treatment.         Since these five Justices
    
    expressly rejected a test that would permit § 2 liability to attach
    
    upon a showing that white and black citizens generally gave their
    
    votes to different candidates in favor of an inquiry into the
    
    possible   explanations    of   these    divergent   voting   patterns,    we
    
    believe that it is this view, not Justice Brennan's, that commands
    
    our allegiance.    The district court's failure to accord similar
    
    weight to this approach was not justified.
    
         All members of the Court in Gingles agreed that only "legally
    
    significant" racial bloc voting is cognizable under § 2.                  They
    
    
                                        53
    disagreed   sharply,    however,   on      the   sort   of   proof   that   would
    
    implicate this provision.      Justice Brennan held that a "minority
    
    must   be   able   to   demonstrate     that     the    white   majority    votes
    
    sufficiently as a bloc to enable it . . . usually to defeat the
    
    minority's preferred candidate." Gingles, 478 U.S. at 51. Justice
    
    O'Connor, on the other hand, argued that such a showing did not
    
    warrant judicial intervention: "[A] reviewing court should be
    
    required to find more than simply that the minority group does not
    
    usually attain an undiluted measure of electoral success."                  Id. at
    
    99 (O'Connor, J., concurring).        Instead, she would require a court
    
    to "find that even substantial minority success will be highly
    
    infrequent under the challenged plan before it may conclude, on
    
    this basis alone, that the plan operates to 'cancel out or minimize
    
    the voting strength of [the] racial grou[p].'"                   Id. at 99-100
    
    (quoting White, 412 U.S. at 765) (alterations in original).
    
           Justice O'Connor's admonition that federal courts should stay
    
    their hand absent proof that "even substantial minority success
    
    will be highly infrequent" receives formal expression in her
    
    insistence that the racial bloc voting inquiry must include an
    
    examination of the causes underlying divergent voting patterns.
    
    Both Justice Brennan and Justice O'Connor recognized that racial
    
    bloc voting is intimately related to the responsiveness of elected
    
    officials to the interests of minorities, one of the factors
    
    considered as part of the "totality of circumstances." As Justice
    
    Brennan indicated, "[n]ot only does '[v]oting along racial lines'
    
    deprive minority voters of their preferred representatives in these
    
    
                                          54
    circumstances, it also 'allows those elected to ignore [minority]
    
    interests without fear of political consequences.'" Id. at 48 n.14
    
    (quoting Rogers v. Lodge, 
    458 U.S. 613
    , 623 (1982) (alterations in
    
    original)). The close tie between bloc voting and representatives'
    
    responsiveness noted by the Court in Rogers and confirmed by
    
    Justice Brennan rests on common sense: Public officials need not
    
    address concerns expressed by minorities so long as white bloc
    
    voting ensures that they will remain minority concerns.   The Court
    
    in Rogers and Justice Brennan, however, differed sharply over the
    
    sort of polarized voting that might provide elected officials with
    
    such assurances and federal courts with grounds to intervene.   The
    
    Court in Rogers held that this close identification was warranted
    
    only where racial political considerations were present, that is,
    
    where white bloc voting caused "minority candidates [to] lose
    
    elections solely because of their race."   Rogers, 458 U.S. at 623
    
    (emphasis added). Justice Brennan's approach, by contrast, assumes
    
    that political leaders may safely ignore minority concerns even
    
    where black and white voters are separated only by differing
    
    interests.   Put another way, Justice Brennan's bloc voting test
    
    accords governing majorities linked only by the perception of
    
    common interests the same permanence and thus relevance under § 2
    
    as white blocs cemented by racial prejudice.
    
         Justice O'Connor not only rejected Justice Brennan's polarized
    
    voting standard but was also unwilling to join in the questionable
    
    assumption that minorities are unable to influence elections and
    
    secure the attention of public officials where these groups have
    
    
                                    55
    been    unsuccessful      in    their    efforts      to   elect    their      preferred
    
    representatives.          Gingles, 478 U.S. at 100-101 (O'Connor, J.,
    
    concurring).       Unlike Justice Brennan, she argued that "Congress
    
    also intended that explanations of the reasons why white voters
    
    rejected minority candidates would be probative of the likelihood
    
    that candidates elected without decisive minority support would be
    
    willing to take the minority's interests into account."                       Id. at 100
    
    (O'Connor, J., concurring).              Following Rogers, Justice O'Connor
    
    believed that a minority group's prospects for future electoral
    
    success and the likelihood that elected officials will take account
    
    of their interests differ materially "in a community where racial
    
    animosity    is    absent      although    the   interests         of    racial   groups
    
    diverge." Id. (O'Connor, J., concurring). A tendency among whites
    
    to cast their votes on the basis of race presents a far more
    
    durable obstacle to the coalition-building upon which minority
    
    electoral success depends than disagreements over ideology for, as
    
    Professor    Ely    observes,      "prejudice         blinds   us       to   overlapping
    
    interests    that    in   fact    exist."      John    Hart    Ely,      Democracy   and
    
    Distrust 153 (1980).           Representatives who owe their office to the
    
    support of majorities bound by prejudice need not attend to the
    
    interests of minorities, since the bias uniting their constituents
    
    ensures that these issues will remain minority concerns. Where, on
    
    the other hand, voting patterns correlate with partisan affiliation
    
    or     perceived    interest,      the    open     channels        of    communication
    
    facilitate a recognition of points of common ground that might
    
    otherwise go undetected.           Elected officials in these communities
    
    
                                              56
    cannot ignore minority interests because this group might be part
    
    of the winning coalition that votes them out of office.        The deep
    
    division between Justice Brennan and Justice O'Connor on the
    
    question   of   racial   bloc   voting   thus   reflects   fundamentally
    
    different views of political factions and our constitutional and
    
    statutory arrangements for accommodating their simultaneous demands
    
    for fluidity and fixity.26
    
         26
          The dissent contends that we have departed from
    controlling Supreme Court precedent in requiring plaintiffs to
    show more than divergent voting patterns among white and minority
    voters in order to establish legally significant bloc voting.
    The dissent properly points out that a majority of the Court in
    Gingles held that racial bloc voting rests on proof that "the
    white majority votes sufficiently as a bloc to enable it . . .
    usually to defeat the minority's preferred candidate." Gingles,
    478 U.S. at 51. As the Court's recent unanimous decision in
    Voinovich v. Quilter, 
    113 S. Ct. 1149
    , 1157 (1993), indicates,
    this standard is hardly controversial. The Justices in Gingles,
    however, were sharply divided on the crucial, separate issue of
    the sort of showing necessary to establish "legally significant"
    bloc voting--that is, the conditions that enable courts to
    predict that a majority bloc will consistently "defeat the
    minority's preferred candidate." The dissent correctly concludes
    that the approach taken by Justice White and Justice O'Connor,
    rather than that offered by Justice Brennan, should govern this
    second inquiry. Thus, we are in full agreement with the dissent
    that the possible causes of polarized voting must be examined
    because "they call into question the consistency with which the
    white bloc will oppose minority-preferred candidates." Dissent
    at ___.
         As we state in the text, we regard evidence that divergent
    voting patterns are attributable to partisan affiliation or
    perceived interests rather than race as quite probative on the
    question of a minority group's future success at the polls. The
    dissent, however, while apparently willing to consider other
    possible non-racial causes, asserts that partisan affiliation is
    insignificant. We are told, in fact, that "the Voting Rights
    Act, as interpreted in Gingles and succeeding cases, presupposes
    partisan voting." Dissent at ___. This refusal to distinguish
    racial politics from partisan politics strikes us as utterly
    inconsistent with the unbroken line of authority extending from
    Whitcomb and White through Justice Marshall's dissent in Bolden
    and the 1982 amendments to the controlling concurring opinions in
    Gingles the dissent purports to embrace.
    
                                       57
          Given that the divergent voting patterns in this case are in
    
    most instances attributable to partisan affiliation rather than
    
    race, it is thus far from coincidental that the district court
    
    found no evidence of unresponsiveness on the part of elected
    
    officials in any of the contested counties.   The irony, of course,
    
    is that the subdistricting remedy sought by plaintiffs provides
    
    most judges with the same opportunity to ignore minority voters'
    
    interests without fear of political reprisal they would possess if
    
    elections were in fact dominated by racial bloc voting.
    
                           D. Partisan Politics
    
         We need not hold that plaintiffs must supply conclusive proof
    
    that a minority group's failure to elect representatives of its
    
    choice is caused by racial animus in the white electorate in order
    
    to decide that the district court's judgment must be reversed.   It
    
    is true that such a requirement could be inferred from the text of
    
    § 2 (prohibiting "denial[s] or abridgement[s] of the right . . . to
    
    vote on account of race or color"); the caselaw Congress intended
    
    to codify in amending the provision, see, e.g., Whitcomb, 403 U.S.
    
    at 153 (vote dilution does not lie when losses at the polls do not
    
    reflect "built-in bias against poor Negroes"); the Senate Report,
    
    see S. Rep. 417 at 33 (equating proof of racial bloc voting with
    
    evidence that "race is the predominant determinant of political
    
    preference"), reprinted in 1982 U.S. Code Cong. & Admin. News at
    
    211; the testimony of prominent supporters of the Act, see, e.g.,
    
    Hearings on the Voting Rights Act Before the Subcomm. on the
    
    Constitution of the Senate Comm. of the Judiciary, 97th Cong., 2d
    
    
                                    58
    Sess. 1367-68 (statement of Prof. Drew Days) (§ 2 implicated "where
    
    a combination of public activity and private discrimination have
    
    joined to make it virtually impossible for minorities to play a
    
    meaningful role in the electoral process"); and the controlling
    
    opinions of the Supreme Court.             See Gingles, 478 U.S. at 100
    
    (O'Connor,    J.,   concurring)     (distinguishing    communities   where
    
    polarized voting is attributable to "racial hostility" and those in
    
    which "racial animosity is absent although the interests of racial
    
    groups diverge").      There is also a powerful argument supporting a
    
    rule that plaintiffs to establish legally significant racial bloc
    
    voting must prove that their failure to elect representatives of
    
    their choice cannot be characterized as a "mere euphemism for
    
    political defeat at the polls," Whitcomb, 403 U.S. at 153, or the
    
    "result" of "partisan politics." Bolden, 446 U.S. at 100 (Marshall,
    
    J., dissenting).
    
         Describing plaintiffs' burden in terms of negating "partisan
    
    politics" rather than affirmatively proving "racial animus"          would
    
    not be simply a matter of nomenclature.         As Judge Wood emphasizes,
    
    there are many other possible non-racial causes of voter behavior
    
    beyond partisan affiliation.        A rule conditioning relief under § 2
    
    upon proof of the existence of racial animus in the electorate
    
    would require plaintiffs to establish the absence of not only
    
    partisan     voting,   but   also    all    other   potentially   innocent
    
    explanations for white voters' rejection of minority-preferred
    
    candidates.    Factors that might legitimately lead white voters to
    
    withhold support from particular minority candidates include, for
    
    
                                         59
    example, limited campaign funds, inexperience, or a reputation
    
    besmirched by scandal.       Because these additional factors map only
    
    imperfectly     onto    partisan    affiliation,    detailed   multivariate
    
    analysis might then be the evidence of choice.          The argument would
    
    then be that without this additional inquiry, courts that confine
    
    their scrutiny to partisan voting might well find racial bloc
    
    voting in circumstances where the losses of minority-preferred
    
    candidates were actually attributable to causes other than race.
    
    This result it is urged, might unfairly tip the scales in favor of
    
    liability.
    
           This argument possesses considerable force.           Certainly, the
    
    allocation of proof in § 2 cases must reflect the central purpose
    
    of the Voting Rights Act and its intended liberality as well as the
    
    practical difficulties of proof in the real world of trial.              In
    
    countless areas of the law weighty legal conclusions frequently
    
    rest on methodologies that would make scientists blush. The use of
    
    such    blunt   instruments    in    examining     complex   phenomena   and
    
    corresponding reliance on inference owes not so much to a lack of
    
    technical sophistication among judges, although this is often true,
    
    but to an awareness that greater certitude frequently may be
    
    purchased only at the expense of other values.           Here, we are told
    
    that we cannot ignore the significant and, assertedly, unacceptable
    
    substantive consequences that would accompany a more nuanced bloc
    
    voting inquiry.        Requiring plaintiffs affirmatively to establish
    
    that white voters' rejection of minority-preferred candidates was
    
    motivated by racial animus would make racial bloc voting both
    
    
                                          60
    difficult and, considering the additional analysis that would be
    
    needed, expensive to establish. See, e.g., McCrary, Discriminatory
    
    Intent: The Continuing Relevance of "Purpose" Evidence in Vote-
    
    Dilution Lawsuits, 
    28 How. L
    . J. 463, 492 (1985).              Moreover, it
    
    would facilitate the use of thinly-veiled proxies by permitting,
    
    for example, evidence that a minority candidate was regarded as
    
    "unqualified" or "corrupt" to defeat a claim that white voters'
    
    refusal to support him was based on race or ethnicity.                    The
    
    argument continues that an inquiry into causation beyond partisan
    
    affiliation    seems   inconsistent   with       the   fundamental    division
    
    between "partisan politics" and "racial vote dilution" set out by
    
    the Court in Whitcomb and White and confirmed by Congress.               Legal
    
    standards     of   necessity   reflect       a     balance    of     competing
    
    considerations.    Finally, the argument continues that limiting the
    
    racial bloc voting inquiry to a determination whether or not
    
    divergent voting patterns are attributable to partisan differences
    
    or an underlying divergence in interests best captures the mandate
    
    of § 2.27   Having said this, we need not resolve the debate today.
    
    Whether or not the burden of the plaintiffs to prove bloc voting
    
    includes the burden to explain partisan influence, the result is
    
    the same.     This is so even if the partisan voting is viewed as a
    
    defensive parry.
    
    
    
         27
          The facts of this case do not require us to determine
    whether defendants may attempt to prove that losses by minority-
    preferred candidates are attributable to non-racial causes other
    than partisan affiliation. We express no opinion on this
    entirely separate question.
    
                                      61
          Finally, we recognize that even partisan affiliation may serve
    
    as proxy for illegitimate racial considerations.       Minority voters,
    
    at least those residing in the contested counties in this case,
    
    have tended uniformly to support the Democratic Party. At the same
    
    time, a majority of white voters in most counties have consistently
    
    voted for district court candidates fielded by the Republican
    
    Party.    Noting   this   persistent,   albeit   imperfect   correlation
    
    between party and race, plaintiffs assert that a determination that
    
    partisan affiliation best explains voting patterns should not
    
    foreclose § 2 liability in this case because the Republican and
    
    Democratic Parties are proxies for racial and ethnic groups in
    
    Texas.   Whitcomb's distinction between "racial vote dilution" and
    
    "political defeat at the polls" should not control, they contend,
    
    for      "partisan        politics"     is       "racial     politics."
    
    
    
          We fully agree with the plaintiffs that the bloc voting
    
    inquiry, like the "question whether the political processes are
    
    'equally open,'" must rest "upon a searching practical evaluation
    
    of the 'past and present reality.'" S.Rep. 417 at 30 (quoting
    
    White, 412 U.S. at 769-770), reprinted in 1982 U.S. Code Cong. &
    
    Admin. News at 208.        Indeed, the refusal of Congress and the
    
    Supreme Court to equate losses at the polls with actionable vote
    
    dilution where these unfavorable results owe more to party than
    
    race may be traced directly to this "functional" view of political
    
    life.    Plaintiffs are therefore entirely correct in maintaining
    
    that courts should not summarily dismiss vote dilution claims in
    
    
                                      62
    cases where racially divergent voting patterns correspond with
    
    partisan affiliation as "political defeats" not cognizable under
    
    § 2.
    
           We do not agree, however, that a "functional" and "practical"
    
    review of Texas judicial elections exposes political parties as
    
    proxies for race or ethnicity.       In assessing the record before us,
    
    we do not indulge in the hopeful yet unrealistic assumption that
    
    decisions to support particular political parties among black and
    
    white voters in all cases rest on issues other than race.               We
    
    instead focus on the same two factors cited by the Court in
    
    Whitcomb and the concurring Justices in Gingles.            First, white
    
    voters constitute the majority of not only the Republican Party,
    
    but also the Democratic Party, even in several of the counties in
    
    which the former dominates.     In Dallas County, for example, 30-40%
    
    of   white   voters   consistently   support   Democrats,   making   white
    
    Democrats more numerous than all of the minority Democratic voters
    
    combined.    The suggestion that Republican voters are galvanized by
    
    a "white" or "anti-minority" agenda is plausible only to the extent
    
    that the Democratic Party can be viewed as a vehicle for advancing
    
    distinctively minority interests, which clearly is not the case.
    
    At the same time, white Democrats have in recent years experienced
    
    the same electoral defeats as minority voters.        If we are to hold
    
    that these losses at the polls, without more, give rise to a racial
    
    vote dilution claim warranting special relief for minority voters,
    
    a principle by which we might justify withholding similar relief
    
    
    
    
                                         63
    from white Democrats is not readily apparent.          See Whitcomb, 403
    
    U.S. at 153.
    
         Second,    both     political    parties,   and       especially   the
    
    Republicans, aggressively recruited minority lawyers to run on
    
    their party's ticket.        Consequently, white as well as minority
    
    voters found themselves not infrequently voting against candidates
    
    sharing their respective racial or ethnic backgrounds in favor of
    
    their party's nominee.        In particular, the undisputed evidence
    
    discloses that white voters in most counties, both Republican and
    
    Democratic, without fail supported the minority candidates slated
    
    by their parties at levels equal to or greater than those enjoyed
    
    by white candidates, even where the minority candidate was opposed
    
    by a white candidate. In Dallas County, for example, Judge Wright,
    
    a black woman, received the greatest recorded percentage of the
    
    white vote (77%) in her race against a white Democrat.         To conclude
    
    on this record that political parties serve as proxies for race is
    
    simply    unwarranted.    Because    the   evidence   in   most   instances
    
    unmistakably shows that divergent voting patterns among white and
    
    minority voters are best explained by partisan affiliation, we
    
    conclude that plaintiffs have failed to establish racial bloc
    
    voting in most, but not all, of the counties.28
    
                                 E. Two Objections
    
         The Houston Lawyers' Association and amicus the United States
    
    raise     two   particular      objections    that     merit      additional
    
         28
          Defendant Judge Entz has contended throughout this
    litigation that § 2, as amended, is unconstitutional. In view of
    our construction of the statute, we need not reach this question.
    
                                         64
    consideration. These arguments closely track those made by Justice
    
    Brennan--arguments rejected by five members of the Supreme Court in
    
    Gingles.    Nevertheless, the urgency with which they are pressed
    
    here warrants a further explanation of the reasons underlying the
    
    views expressed by Justice White and Justice O'Connor in their
    
    separate opinions.
    
         The Association contends that a requirement that plaintiffs
    
    prove that their failure to elect representatives of their choice
    
    is   attributable     to    white     bloc     voting     rooted    in     racial
    
    considerations is presumptively inconsistent with § 2's focus on
    
    "results." The Association reads this test to impose on plaintiffs
    
    the burden of affirmatively establishing that white voters are
    
    motivated     by   racial   animus     in     selecting    candidates.        So
    
    characterized, the racial bloc voting standard we apply today
    
    allegedly     contravenes   the     fundamental     purpose    of    the    1982
    
    amendments by reintroducing the "intent" test announced in Mobile
    
    v. Bolden, 
    446 U.S. 55
     (1980).         See also Richard L. Engstrom, The
    
    Reincarnation of the Intent Standard: Federal Judges and At-Large
    
    Election Cases, 
    28 How. L
    . J. 495, 498 (1985).             That is not so.
    
         The    Association     does     not     seriously    contend    that    the
    
    legislative history accompanying the amendments to § 2 lends direct
    
    support for its position.         The Senate Report quite unambiguously
    
    declares that Congress intended to "make clear that plaintiffs need
    
    not prove a discriminatory purpose in the adoption or maintenance
    
    of the challenged practice or system in order to establish a
    
    violation."    S. Rep. 417 at 27 (emphasis added), reprinted in 1982
    
    
                                          65
    U.S. Code Cong. & Admin News at 205.            Moreover, far from suggesting
    
    that    the     presence    of    racial    animus    in   the    electorate      was
    
    irrelevant, supporters of the 1982 legislation maintained that the
    
    amendments were necessary precisely in order to reach such "private
    
    discrimination."          See, e.g., Hearings on the Voting Rights Act
    
    Before the Subcomm. on the Constitution of the Senate Comm. of the
    
    Judiciary, 97th Cong., 2d Sess. 1367-68 (statement of Prof. Drew
    
    Days).    The Association instead insists that a standard requiring
    
    § 2 plaintiffs to show that their failure to elect representatives
    
    of their choice is attributable to white bloc voting rooted in
    
    racial considerations "frustrate[s] the goals Congress sought to
    
    achieve by repudiating the intent test of [Bolden]."                   Gingles, 478
    
    U.S. at 71 (opinion of Brennan, J.).              Given the palpable tension
    
    between "the       goals    Congress   sought    to    achieve"    and    those    it
    
    actually expressed, it is hardly surprising that the principles the
    
    Association purports to locate in the Senate Report bear only a
    
    passing resemblance to those offered by Congress. Compare Gingles,
    
    478 U.S. at 70-73 (opinion of Brennan, J.) with S. Rep. 417 at 36-
    
    37, reprinted in 1982 U.S. Code Cong. & Admin News at 214-15.
    
           More importantly, the Association's contention that an inquiry
    
    into the explanations underlying racially divergent voting patterns
    
    somehow       conflicts    with    Congress'    abandonment       of   the   intent
    
    requirement announced in Bolden completely ignores the fact that
    
    the Senate Report expressly adopted the standard we employ in
    
    codifying the "results" test.              Indeed, like Justice Marshall in
    
    Bolden itself, see 446 U.S. at 109 (Marshall, J., dissenting), the
    
    
                                               66
    Senate Report reiterated Whitcomb's holding that "[t]he failure of
    
    the   ghetto   to    have   legislative       seats   in    proportion   to    its
    
    population emerges more as a function of losing elections than of
    
    built-in bias against poor Negroes" precisely in order to show that
    
    "intent had [not] been required to prove a violation."                S. Rep. 417
    
    at 21 (quoting Whitcomb, 403 U.S. at 153), reprinted in 1982 U.S.
    
    Code Cong. & Admin News at 198.              In keeping with Whitcomb, the
    
    Senate Report equated "racial bloc voting" with proof that "race is
    
    the predominant determinant of political preference."                 Id. at 33,
    
    reprinted in 1982 U.S. Code Cong. & Admin News at 211.                         The
    
    Association's       assertion   that    the    test    we   confirm    today    is
    
    inconsistent    with    "the    goals   Congress      sought   to   achieve"   in
    
    amending § 2 becomes plausible only if Whitcomb is purged from our
    
    voting rights jurisprudence. It is therefore not coincidental that
    
    its brief, like Justice Brennan's opinion, see Gingles, 478 U.S. at
    
    61-74, fails to include a citation, let alone a discussion, of the
    
    decision Congress intended to codify.
    
          The United States offers a second argument incorporating
    
    elements of Justice O'Connor's as well as Justice Brennan's opinion
    
    in Gingles.     The government agrees with Justice O'Connor that an
    
    inquiry into the causes underlying polarized voting is appropriate
    
    in certain circumstances.        It follows Justice Brennan, however, in
    
    maintaining that evidence tending to show that divergent voting
    
    patterns are attributable to partisan affiliation or a divergence
    
    in interests rather than race is irrelevant in assessing whether
    
    
    
    
                                            67
    plaintiffs have established legally significant white bloc voting.
    
    We disagree with this argument as well.
    
         The United States' assertion that partisan affiliation cannot
    
    serve to explain voting patterns finds no support in Justice
    
    O'Connor's opinion.         The very inquiry it seeks to exclude--whether
    
    election returns track "an underlying divergence in the interests
    
    of minority and white voters,"--was the only non-racial cause
    
    expressly    cited    in    her   opinion       as     a   possible   explanation     of
    
    divergent voting patterns. See Gingles, 478 U.S. at 100 (O'Connor,
    
    J., concurring).
    
         The    United    States      argues       that    the   political     differences
    
    frequently observed among white and minority voters are largely the
    
    product     of    disparities       in   socioeconomic           status,    which   are
    
    themselves       attributable     to     the    presence      or    absence   of    past
    
    discrimination.        In    this    view,      a     standard     that   would   permit
    
    divergence in interest to preclude the establishment of racial bloc
    
    voting "would render meaningless the Senate Report factor that
    
    addresses the impact of low socioeconomic status on a minority
    
    group's level of participation."                Gingles, 478 U.S. at 69.
    
         This argument is not without force; it is, however, clearly
    
    foreclosed by the Senate Report.                 Congress was not unaware that
    
    political preference often correlates strongly with socioeconomic
    
    status; particularized needs clearly give rise to particularized
    
    interests.       This observation did not, however, lead Congress to
    
    soften the line between partisan politics and racial vote dilution
    
    established by the Court in Whitcomb.                  To the contrary, the Senate
    
    
                                               68
    Report not only adopted Whitcomb's holding without modification,
    
    but expressly reminded its readers in so doing that the vote
    
    dilution claim dismissed by the Whitcomb Court as "a mere euphemism
    
    for political defeat at the polls" had been brought by "black
    
    ghetto residents with [distinct] legislative interests."                   S. Rep.
    
    417 at 20, reprinted in 1982 U.S. Code Cong. & Admin News at 198.
    
    The     argument   pressed    here   by    the     United      States    has   been
    
    acknowledged, and rejected, by Congress.
    
          The Senate factor cited by Justice Brennan in support of his
    
    refusal to attach relevance to a divergence of interests expressly
    
    relates, not to whether minority groups have been able to elect
    
    representatives of their choice, but to "the extent to which
    
    members    of    the   minority   group    .   .    .   bear    the     effects   of
    
    discrimination in areas such as education, employment, and health,
    
    which    hinder    their   ability   to    participate      in    the    political
    
    process."       S. Rep. 417 at 29 (emphasis added), reprinted in 1982
    
    U.S. Code Cong. & Admin News at 206.               As the Court in Chisom v.
    
    Roemer confirmed, § 2 plaintiffs "must allege an abridgement of the
    
    opportunity to participate in the political process and to elect
    
    representatives of one's choice."          111 S.Ct. at 2365 (emphasis in
    
    original).      The effects of past discrimination, as the text of the
    
    Senate Report indicates, pertain solely to the "political access"
    
    prong of a § 2 claim.        It is by considering these effects in this
    
    regard, not in the bloc voting inquiry, that courts give effect to
    
    congressional intent.        The United States' approach, by contrast,
    
    would allow this single factor to assume dispositive significance
    
    
                                          69
    in both of these inquiries.   In so doing, it would permit liability
    
    to attach, in direct conflict with the Senate Report, upon "the
    
    mere existence of underrepresentation plus a history of dual
    
    schools."   S. Rep. 417 at 34, reprinted in 1982 U.S. Code Cong. &
    
    Admin News at 212.     Electoral losses that are attributable to
    
    partisan politics do not implicate the protections of § 2.
    
    
    
    
                                     70
       IV.    Other Legal Errors Affecting the Vote Dilution Inquiry
    
         Defendants cite three additional legal errors that allegedly
    
    infect the district court's findings of illegal vote dilution in
    
    each of the counties.      Specifically, they argue that the district
    
    court    erred    in:    (1)   excluding   elections   pitting   Hispanic
    
    candidates against white candidates in counties in which the
    
    evidence unmistakably showed that black and Hispanic voters were
    
    cohesive; (2) refusing to consider the paucity of minority lawyers
    
    in assessing the extent to which members of minority groups had
    
    been elected to the district court; and (3) finding that the
    
    effects of past discrimination hindered the ability of minority
    
    groups to participate in the political process despite the presence
    
    of little or no evidence suggesting that their participation was in
    
    fact depressed.      We examine these issues in turn.
    
                A. Cohesiveness of Different Minority Groups
    
         The importance of the distinction in § 2 jurisprudence between
    
    illegal vote dilution and political defeat, between protecting
    
    racial minorities and fostering the work of political coalitions,
    
    raises the stakes for the question whether different racial or
    
    ethnic minority groups, usually blacks and Hispanics, may combine
    
    to form a single minority group within the meaning of the Voting
    
    Rights Act.      Judges and commentators alike have questioned whether
    
    transitory unions rooted in political expedience may be properly
    
    equated with those whose source lies in the more enduring bonds
    
    supplied by a shared race or ethnicity.         League of United Latin
    
    American Citizens v. Midland Indep. School District, 
    812 F.2d 1494
    ,
    
    
                                        71
    1505-07 (5th Cir. 1987) (Higginbotham, J., dissenting); Katherine
    
    I. Butler & Richard Murray, Minority Vote Dilution Suits and the
    
    Problem of Two Minority Groups: Can a 'Rainbow Coalition' Claim the
    
    Protection of the Voting Rights Act?, 21 Pacific L.J. 619, 641-57
    
    (1990).   Nevertheless, we have treated the issue as a question of
    
    fact, allowing aggregation of different minority groups where the
    
    evidence suggests that they are politically cohesive, see, e.g.,
    
    Midland I.S.D., 812 F.2d at 1500-02, and we need not revisit this
    
    question here.
    
         This issue is raised today in the context of the particular
    
    elections to which the district court looked as part of its inquiry
    
    into racial bloc voting.    This court has consistently held that
    
    elections between white candidates are generally less probative in
    
    examining the success of minority-preferred candidates, generally
    
    on grounds that such elections do not provide minority voters with
    
    the choice of a minority candidate.   See, e.g., Campos v. City of
    
    Baytown, 
    840 F.2d 1240
    , 1245 (5th Cir. 1988); Citizens for a Better
    
    Gretna v. City of Gretna, 
    834 F.2d 496
    , 503 (5th Cir. 1987).   For
    
    this reason, courts usually focus on those elections involving
    
    black or Hispanic candidates in examining whether black or Hispanic
    
    voters enjoy an equal opportunity to elect representatives of their
    
    choice. Where blacks and Hispanics are cohesive, we have held that
    
    the relevant elections are those including either Hispanic or black
    
    candidates. See, e.g., Baytown, 840 F.2d at 1245.       Defendants
    
    contend that the district court erred in refusing to consider
    
    elections pitting Hispanic and white candidates in Harris and
    
    
                                    72
    Tarrant Counties, counties in which plaintiffs proceed on behalf of
    
    black voters only, but where the evidence indisputably showed that
    
    blacks and Hispanics were politically cohesive.                   In light of our
    
    precedents, we must agree.
    
         Blacks and Hispanics have joined forces for purposes of this
    
    suit in Midland, Lubbock, and Ector Counties.               In these counties,
    
    white-Hispanic      elections     are     relevant     in        proving       legally
    
    significant white bloc voting, for the Hispanic candidate provides
    
    the combined Hispanic-black minority with a viable minority choice.
    
    But plaintiffs contend that where they represent only black voters,
    
    white-Hispanic elections in which the Hispanic candidate received
    
    the support of black voters are irrelevant.                      A difference in
    
    litigation strategy cannot support this distinction.                  Cohesion is
    
    a fact, not a strategic card to be played at the caprice of a
    
    plaintiff. As we stated in Campos, "if the statistical evidence is
    
    that Blacks and Hispanics together vote for the Black or Hispanic
    
    candidate,   then     cohesion    is    shown."      Id.    at    1245     (footnote
    
    omitted).    If blacks and Hispanics vote cohesively, they are
    
    legally a single minority group, and elections with a candidate
    
    from this    single    minority    group     are   elections       with    a   viable
    
    minority candidate.
    
         Plaintiffs next argue that there is evidence in the record
    
    that blacks and Hispanics are not politically cohesive in Harris
    
    and Tarrant Counties.      They do not tell us to which evidence they
    
    refer, and understandably so.           The record shows that blacks and
    
    Hispanics were more cohesive in Harris and Tarrant Counties than in
    
    
                                            73
    Midland and Ector Counties, counties in which plaintiffs represent
    
    both blacks and Hispanics and the district court found cohesion.
    
         In Harris County, Taebel studied 45 elections in which he
    
    determined the percentage of black and Hispanic votes cast for the
    
    minority/winning candidate. In 35 elections the black and Hispanic
    
    vote percentages varied by less than 10%.         Similarly, the levels of
    
    black and Hispanic support for the same candidate were within ten
    
    percentage points in 13 of the 17 elections studied in Tarrant
    
    County.    In Midland County, by contrast, the black and Hispanic
    
    voting percentages differed by less than 10% in only 4 of the 8
    
    elections analyzed; in Ector County, this close correlation between
    
    the preferences of Hispanic and black voters was shown in just 2 of
    
    10 elections.    Under the present law of this circuit, there is no
    
    error in the district court's findings of cohesion in Midland,
    
    Ector,    and   Lubbock   Counties,    because     in   those   counties   a
    
    significant number of blacks and Hispanics usually voted for the
    
    same candidates.    Gingles, 478 U.S. at 56.        But this standard also
    
    compels the conclusion that there is also black-Hispanic cohesion
    
    in Harris and Tarrant Counties.            The district court thus clearly
    
    erred in ignoring elections involving Hispanic and white candidates
    
    in these counties.29
    
         29
          The dissent points out that defendants did not ask the
    trial court to make a specific finding that black and Hispanic
    voters were politically cohesive in Harris and Tarrant Counties.
    This observation, while correct, is beside the point, for that is
    not the claim they raise on appeal. Rather, defendants argue
    that the district court improperly refused to consider elections
    involving Hispanic candidates studied by Dr. Taebel, their
    expert. This question is most assuredly before us and, given the
    overwhelming evidence of cohesiveness among black and Hispanic
    
                                          74
               B. Relevance of Small Number of Minority Lawyers
    
         The     absence   of    minority   office   holders   is   typically   an
    
    important consideration in dilution cases. In this litigation, the
    
    small number of minority judges in the target counties has been the
    
    cornerstone of the plaintiffs' proof.
    
         The office of district judge has more eligibility requirements
    
    than the age and citizenship prerequisites of many public offices.
    
    A person must be a licensed attorney in the state of Texas for four
    
    years, and a resident of the district for two years, before
    
    becoming eligible for the post.         The need for district judges to be
    
    experienced lawyers is obvious.
    
         Undisputed evidence shows that in all of the counties, the
    
    percentage of minority lawyers was much smaller than the percentage
    
    of minority voters.         In fact, minority lawyers disproportionately
    
    serve as judges, when their percentage among all eligible lawyers
    
    is considered.      It is true that we have refused "to preclude vote
    
    dilution claims where few or no [minority] candidates have sought
    
    offices in the challenged electoral system." Westwego Citizens for
    
    Better Gov't v. City of Westwego, 
    872 F.2d 1201
    , 1208 n.9 (5th Cir.
    
    1989) (Westwego I).         That holding is a far cry from the conclusion
    
    that the number of minority candidates eligible to run has no
    
    relevance. Section 2 and the Senate Report instruct us to consider
    
    the number of minority candidates elected to office.             At the same
    
    time,   we    are   instructed     to    evaluate   the    totality   of    the
    
    
    
    voters in Harris and Tarrant Counties, is susceptible to only one
    answer.
    
                                            75
    circumstances with a "'functional' view of the political process."
    
    Gingles, 478 U.S. at 45, 106 S. Ct. at 2764.                           The cold reality is
    
    that few minority citizens can run for and be elected to judicial
    
    office.          A    functional       analysis      of    the    electoral      system   must
    
    recognize the impact of limited pools of eligible candidates on the
    
    number      of       minority       judges   that    has    resulted.           See   Southern
    
    Christian Leadership Conf. of Ala. v. Evans, 
    785 F. Supp. 1469
    ,
    
    1476-77 (M.D. Ala. 1992).
    
             The record discloses that at times during the 1980's, the
    
    percentage of minority judges in five targeted counties exceeded
    
    the percentage of minority lawyers who were eligible to run for
    
    district judge.           The following table summarizes the evidence.
    
                                                 Table IV.B
    County       Minority Judges as                Minority Lawyers as          Minority Voters
                 %age of District                  %age of Eligible             as %age of Voting
                 Judges, 1988                    Lawyers, 1989               Age Population
    Dallas                  8.3                          1.0                   16.0 (black)
    Harris                  5.1                          3.8                   18.2 (black)
    Tarrant                 13.0                         2.4                   10.4 (black)
    Bexar                   26.3                         11.4                  41.4 (Hispanic)
    Travis                  7.7                          2.7                   14.4 (Hispanic)
    Jefferson               0.0                          3.1                   24.6 (black)
    Lubbock                 0.0                          5.1                   21.6 (both)
    Midland                 0.0                          3.2                   19.7 (both)
    Ector                   0.0                          4.0                   21.9 (both)
    
    
    
    In   counties         with     no    minority    judges,         the   number    of   eligible
    
    candidates was very small.                    In Ector County, for example, one
    
    survey found five eligible Hispanic lawyers and only one eligible
    
    black lawyer.           Apparently none of Lubbock County's 499 lawyers in
    
    
    
    
                                                    76
    1989 was a black attorney eligible for a district judgeship,
    
    although the State Bar reported two black lawyers in the county.
    
           The     absence    of   eligible      candidates   goes      a   long   way    in
    
    explaining the absence of minority judges.                      Plaintiffs cannot
    
    emphasize the scarcity of successful minority candidates to support
    
    the inference of dilution and simultaneously urge that the number
    
    of minorities eligible to run is not relevant.                      Plaintiffs argue
    
    that this factor may not be considered because the limited number
    
    of    minority     lawyers      was    caused     by   state    discrimination        in
    
    education.       We are not persuaded this argument merits exclusion of
    
    the evidence.        The Voting Rights Act responds to practices that
    
    impact voting; it is not a panacea addressing social deficiencies.
    
    See Presley v. Etowah County Comm'n,                   U.S.     ,       , 
    112 S. Ct. 820
    , 832 (1992).
    
                                   C. Past Discrimination
    
           The     district    court      also    found    that    Texas'    history      of
    
    discrimination "touched many aspects of the lives of minorities in
    
    the    Counties      in    question       including     their       access     to    and
    
    participation in the democratic system governing this State and
    
    their socio-economic status."30               The district court, however, did
    
           30
                Two separate Zimmer factors guided the court's inquiry:
    
           1. the extent of any history of official discrimination
           in the state or political subdivision that touched the
           right of the members of the minority group to register,
           to vote, or otherwise to participate in the democratic
           process;
    
    . . . . . . . . . .
    
           5. the extent to which members of the minority group in
    
                                                 77
    not   refer   to   specific   facts     in   the   record   to   support   this
    
    conclusion.        Instead,   the    court   cited    a   1980   Civil   Rights
    
    Commission Report describing civil rights developments in Texas
    
    during the years 1968-1978 and a 1981 district court opinion
    
    detailing race relations between minority and white residents of
    
    one of Texas' smaller cities during the 1960's and 1970's.
    
          Texas' long history of discrimination against its black and
    
    Hispanic citizens in all areas of public life is not the subject of
    
    dispute among the parties.          Nor has anyone questioned plaintiffs'
    
    assertion that disparities between white and minority residents in
    
    several socioeconomic categories are the tragic legacies of the
    
    State's discriminatory practices.            Defendants do argue, however,
    
    that these factors, by themselves, are insufficient to support the
    
    district court's "finding" that minorities do not enjoy equal
    
    access to the political process absent some indication that these
    
    effects of past discrimination actually hamper the ability of
    
    minorities to participate.          We again agree.
    
          It would seem tautological that a factor directing courts to
    
    determine whether past discrimination hinders a minority group's
    
    access to the political process would require a showing that the
    
    group does not in fact participate to the same extent as other
    
    
    
          the state or political subdivision bear the effects of
          discrimination in such areas as education, employment
          and health, which hinder their ability to participate
          effectively in the political process;
    
    S. Rep. 417 at 28-29, reprinted in 1982 U.S. Code Cong. & Admin.
    News at 206.
    
    
                                           78
    citizens. Nevertheless, prior to the amendments to § 2, this court
    
    held that evidence of decreased participation among minorities was
    
    unnecessary on grounds that "[i]nequality of access is an inference
    
    which    flows       from   the    existence         of    economic    and   educational
    
    inequalities."         Kirksey v. Board of Supervisors, 
    554 F.2d 139
    , 145
    
    (5th Cir. 1977) (en banc). This standard, however, was challenged
    
    by some of our later cases, see, e.g., McIntosh Cty. NAACP v. City
    
    of Darien, 
    605 F.2d 753
    , 759 (5th Cir. 1979), and was decisively
    
    rejected by Congress in 1982.                 As the Senate Report stated:
    
           The courts have recognized that disproportionate
           educational, employment, income level and living
           conditions arising from past discrimination tend to
           depress minority political participation. Where these
           conditions are shown, and where the level of black
           participation in politics is depressed, plaintiffs need
           not prove any further causal nexus between their
           disparate socio-economic status and the depressed level
           of political participation.
    
    S. Rep. 417 at 29 n.114 (emphasis added), reprinted in 1982 U.S.
    
    Code    Cong.    &    Admin.      News   at    207    n.114.      As    this   statement
    
    discloses, the Senate Report, while not insisting upon a causal
    
    nexus between socioeconomic status and depressed participation,
    
    clearly did not dispense with proof that participation in the
    
    political process is in fact depressed among minority citizens. In
    
    apparently holding that socioeconomic disparities and a history of
    
    discrimination, without more, sufficed to establish these Zimmer
    
    factors, the district court employed the wrong legal standard.
    
           Nor do we believe that the record before us can support such
    
    a finding under the proper test.                          Plaintiffs have offered no
    
    evidence of reduced levels of black voter registration, lower
    
    
                                                  79
    turnout among black voters, or any other factor tending to show
    
    that past discrimination has affected their ability to participate
    
    in the political process. While there are indications that Hispanic
    
    citizens register to vote at a lower rate than white and black
    
    citizens, this data provides support for such a finding in only
    
    Bexar and Travis Counties, where plaintiffs proceed on behalf of
    
    Hispanic voters only.
    
          Plaintiffs contend that the district court could have relied
    
    on the opinion offered by Dr. Brischetto, who, during his testimony
    
    regarding Bexar County, stated:
    
          Well, certainly having less of these socioeconomic
          resources or characteristics to draw on, we find that
          minority voters will participate less in the electoral
          system.    Education is an important resource.        For
          example, it enables people to feel like they are more a
          part of and take part in the election system to a greater
          extent. Lacking that they participate less. So it is
          important, it has an effect certainly on their
          participation when they are subordinate status in the
          stratification system.
    
    Brischetto's statement, as its tone suggests, was not so much a
    
    finding as a prediction or hypothesis about what one might expect
    
    to   find   among   minorities   who    still   bore   the   scars   of   past
    
    discrimination.     It is for this reason that he could claim that his
    
    testimony regarding the participation of Hispanics in Bexar applied
    
    with equal force to all of the other counties.         In fact, the nature
    
    and basis of his opinion became explicit as the testimony shifted
    
    to these other locales.     In Travis County, for example, he stated
    
    only that "stratification . . . may very well also be an indication
    
    of the fact that Hispanics are less likely to participate fully and
    
    effectively in the electoral system in Travis County." In Lubbock,
    
                                           80
    Brischetto stated only that "I think [such stratification] is an
    
    indication that minorities are less equipped with those resources
    
    that they need to participate fully in the political system."
    
    Finally, he   testified    in   the    context   of   Tarrant   County   that
    
    socioeconomic differences "indicate[] that minorities may have a
    
    diminished ability to participate fully in the electoral system
    
    because of their lower status and stratification that exists in
    
    that community."
    
         Brischetto's testimony thus provides support for the common
    
    sense proposition that depressed political participation typically
    
    accompanies poverty and a lack of education; it certainly does not
    
    amount to proof that minority voters in this case failed to
    
    participate equally in the political processes. A district court's
    
    findings under § 2 must rest on an "intensely local appraisal" of
    
    the social and political climate of the cities and counties in
    
    which such suits are brought, White, 412 U.S. at 769, not the sort
    
    of generalized armchair speculation supplied by Dr. Brischetto. We
    
    need evidence, not musings.
    
         Plaintiffs    also   contend     that   minority   citizens'   lack   of
    
    financial resources makes it very difficult for minority-preferred
    
    candidates to secure funds sufficient to run creditable county-wide
    
    campaigns.    Here again, the inference plaintiffs ask us to draw
    
    might well be true in most cases; regardless of its general
    
    validity, however, it is no substitute for proof that a minority
    
    group's poverty has had the predicted effect in this particular
    
    case.   The evidence presented at trial simply does not show that
    
    
                                          81
    past discrimination has inhibited the ability of minorities to
    
    participate in the process.       In fact, the record discloses that
    
    minority-preferred candidates frequently raised and spent more
    
    money that their white opponents.
    
         Witnesses   Coronado   and    Fitch   did    testify    that    minority
    
    candidates generally were unable to raise the money necessary to
    
    run county-wide. When asked about the only district court campaign
    
    in which he was personally involved, however, Coronado made no
    
    mention of money problems.        In fact, he testified that "[Judge
    
    Gallardo] ran a very good campaign.        I mean he was, he understood
    
    the media, had people out working boxes, he had a lot of attorneys
    
    of all ethnic groups working in his campaign, a broad base campaign
    
    in the community." Similarly, Fitch asserted that black incumbents
    
    had difficulty raising funds, but she attributed this difficulty to
    
    "racial discrimination" and black candidates' "past record of
    
    losing."
    
         In contrast with the highly equivocal testimony of Fitch and
    
    Coronado   concerning   their   impressions      of   the   barriers   facing
    
    minority candidates, nearly all such candidates who appeared at
    
    trial reported that they had outspent their white opponents, often
    
    by a very large amount.     In Midland County, for example, Watson
    
    testified that she outspent her white opponent in the general
    
    election for Justice of the Peace by a factor of six.               In Dallas
    
    County, Joan Winn White, Tinsley, H. Ron White, and Oliver all
    
    testified that they had run extensive, well-financed campaigns. In
    
    particular, Oliver stated that he spent $300,000 in a losing
    
    
                                       82
    effort.     The same was true of minority-preferred candidates in
    
    Harris County.     Lee testified that she outspent her white opponent
    
    at a rate approaching twelve to one; Berry stated that the ratio in
    
    his campaign for district court was even greater.                Finally, Leal
    
    testified that he raised $85,000 to $90,000 to his opponent's
    
    $1,000.    A district court's findings may only rest on the evidence
    
    presented at trial. The record before us does not remotely suggest
    
    that the visible scars of discrimination have left minority-
    
    preferred    candidates      and     their   supporters    within     minority
    
    communities without the funds needed to launch broad-based, county-
    
    wide campaigns.     In fact, the available evidence shows just the
    
    opposite.    For this reason, we must conclude that plaintiffs have
    
    not established that the effects of past discrimination have
    
    hindered their ability to participate in the political process.
    
                           V.    Texas' Linkage Interest
    
         This case involves 172 judicial districts that coincide with
    
    nine Texas counties. Given the State of Texas' county-based system
    
    of venue, this venerable structure links the jurisdictional and
    
    electoral bases of the district courts. In doing so, the structure
    
    advances     the    state's        substantial    interest       in   judicial
    
    effectiveness.     Trial judges are elected by a broad range of local
    
    citizens, rather than by a narrow constituency.              This electoral
    
    scheme balances accountability and judicial independence.
    
         As    explained    in   detail    below,    the   state's    interest   in
    
    maintaining the structure of this single-member judicial office
    
    must be weighed in the totality of circumstances to determine
    
    
                                           83
    whether a § 2 violation exists.          The weight of a substantial state
    
    interest, determined as a matter of law, is balanced against
    
    localized evidence of racial vote dilution. This substantial state
    
    interest may be overcome only by evidence that sums to substantial
    
    proof of racial dilution.         Otherwise, the at-large election of
    
    district court judges does not violate § 2.
    
                  A. The Structure of Texas District Courts
    
         The district courts are the primary trial courts in Texas.
    
    District judges were first elected in 1850, five years after
    
    statehood, and every state constitution since 1861 has provided for
    
    their election by county residents.             All voters of the entire
    
    county    elect   all   the   district    judges   of   their   county.   The
    
    political boundaries of each county are the boundaries of the
    
    jurisdiction and election base in all of the challenged counties.31
    
    Many counties in Texas have more than one district judge.            Even so,
    
    trials are presided over by district judges acting alone. The only
    
    collegial decision-making by district judges in counties with more
    
    than one district judge is in the handling of some administrative
    
    matters.    In some of the counties involved here, district courts
    
    are designated to specialize in civil, criminal, or family law
    
    cases.
    
         The electoral bases of district judges are linked to the area
    
    over which they exercise primary jurisdiction.             This linkage has
    
    been in place throughout the 143 year history of judicial elections
    
    
         31
          One exception is the 72nd District, which encompasses both
    Lubbock and Crosby Counties.
    
                                         84
    in Texas.    By making coterminous the electoral and jurisdictional
    
    bases of trial courts, Texas advances the effectiveness of its
    
    courts by balancing the virtues of accountability with the need for
    
    independence.       The     state    attempts       to     maintain    the    fact   and
    
    appearance of judicial fairness that are central to the judicial
    
    task, in part, by insuring that judges remain accountable to the
    
    range of people within their jurisdiction. A broad base diminishes
    
    the   semblance    of     bias    and    favoritism        towards     the   parochial
    
    interests of a narrow constituency.                      Appearances are critical,
    
    because    "the    very     perception        of    impropriety       and    unfairness
    
    undermines the moral authority of the courts."                  John L. Hill, Jr.,
    
    Taking Texas Judges Out of Politics:                       An Argument for Merit
    
    Election, 40 Baylor L. Rev. 339, 364 (1988).                    The fear of mixing
    
    ward politics and state trial courts of general jurisdiction is
    
    widely held.       It is not surprising then that states that elect
    
    trial judges overwhelmingly share this structure and electoral
    
    scheme.      See    infra     note      30.        The    systemic    incentives      of
    
    subdistricting are those of ward politics, and would "diminish the
    
    appearance if not fact of its judicial independence--a core element
    
    of a judicial office."           LULAC II, 914 F.2d at 650 (Higginbotham,
    
    J., concurring).
    
                        B. The Role of Function Under § 2
    
           In Houston Lawyers' Association v. Attorney General,                          U.S.
    
          , 
    111 S. Ct. 2376
     (1991), the Supreme Court agreed that the
    
    interests behind the existing court structure must be considered.
    
           [W]e believe that the State's interest in maintaining an
           electoral system--in this case, Texas' interest in
    
                                              85
         maintaining the link between a district judge's
         jurisdiction and the area of residency of his or her
         voters--is a legitimate factor to be considered by courts
         among the "totality of circumstances" in determining
         whether a § 2 violation has occurred.          A State's
         justification for its electoral system is a proper factor
         for the courts to assess in a racial vote dilution
         inquiry . . . .       Because the State's interest in
         maintaining an at-large, district-wide electoral scheme
         for single-member offices is merely one factor to be
         considered in evaluating the "totality of circumstances,"
         that interest does not automatically, and in every case,
         outweigh proof of racial vote dilution.
    
    Id. at     , 111 S. Ct. at 2381.
    
         Justice   Stevens   noted   that   Texas'   interest    in    linking
    
    electoral and jurisdictional bases is "a legitimate factor to be
    
    considered by courts among the 'totality of circumstances' in
    
    determining whether a § 2 violation has occurred."      Id.       The Court
    
    was not persuaded that this "linkage" interest should defeat
    
    liability "automatically, and in every case."         Rather, Houston
    
    Lawyers' held that the interest must be weighed against other
    
    relevant factors to ascertain whether the interest "outweigh[s]
    
    proof of racial vote dilution."     Id.   See also Nipper v. Chiles,
    
    
    795 F. Supp. 1525
    , 1548 (M.D. Fla. 1992) (holding that "a state's
    
    interest in maintaining an electoral system is a legitimate factor
    
    to be considered ... in the liability phase of a section two
    
    case").
    
         An examination of Houston Lawyers' further illuminates why the
    
    state interests behind an office's structure and function must be
    
    weighed.   The Court held that single-member office elections are
    
    within the scope of § 2.   Houston Lawyers',       U.S. at         , 111 S.
    
    Ct. at 2380.    This holding reached beyond judicial elections.
    
    
                                      86
    "[T]he coverage of the Act encompasses the election of executive
    
    officers and trial judges whose responsibilities are exercised
    
    independently in an area coextensive with the districts from which
    
    they are elected."      Id. (emphasis added).        It appears from this
    
    language that an office such as mayor or sheriff is subject to § 2
    
    scrutiny, requiring an analysis of the totality of circumstances to
    
    determine    whether   illegal   vote    dilution   exists.    While   that
    
    analysis is not precluded, it must take into account the state
    
    interests that are furthered by the structure and function of such
    
    single-member offices.     Surely by enacting the Voting Rights Act,
    
    Congress did not contemplate that the office of mayor in a city
    
    would have to be dismantled because its single-member office nature
    
    submerged minority voters in the community of voters as a whole,
    
    without regard for the interests in preserving that office.             Cf.
    
    Butts v. City of New York, 
    779 F.2d 141
     (2d Cir. 1985) (holding
    
    that primary runoffs for single-member offices of mayor, city
    
    council president, and city comptroller do not violate § 2).
    
         Therefore, while the Supreme Court rejected the contention
    
    that the linkage interest in all cases defeated liability under
    
    § 2, the Court endorsed the position that the linkage interest is
    
    relevant to a determination of liability.           Indeed, by noting that
    
    the linkage interest does not "automatically, and in every case,
    
    outweigh proof of racial vote dilution," the Court held that the
    
    state interest could outweigh what would otherwise be proof of
    
    illegal dilution and thus foreclose liability.          As one commentator
    
    has noted:
    
    
                                        87
           the Court recognized that in balancing the many factors
           in the totality of the circumstances test, the state
           interest in district wide judicial elections may, in some
           cases, outweigh proof of racial voter dilution.
    
    Mary T. Wickham, Note, Mapping the Morass:            Application of Section
    
    2 of the Voting Rights Act to Judicial Elections, 33 Wm. & Mary L.
    
    Rev. 1251, 1285 (1992).
    
           The issue we face is determining when the linkage interest
    
    will outweigh other factors and defeat liability under § 2.                   In
    
    resolving this issue, we reject the polar extremes of the parties.
    
    The State of Texas maintains that the linkage interest must defeat
    
    liability in every case, regardless of the other circumstances in
    
    the totality.       The Supreme Court rejected this position when it
    
    held that the linkage interest does not "automatically, and in
    
    every case, outweigh proof of racial vote dilution."                   Houston
    
    Lawyers',          U.S. at      , 111 S. Ct. at 2381.
    
           We also reject the position of plaintiffs that the linkage
    
    interest     can    never    defeat   liability     under   the   totality    of
    
    circumstances if "illegal" dilution is otherwise established.                The
    
    plaintiffs maintain that only the absence of a compelling state
    
    interest in an electoral scheme is relevant to liability, and that
    
    such an absence "is an optional factor" that plaintiffs can use to
    
    support a finding of illegal dilution. They contend, however, that
    
    the existence of a compelling interest can never defeat liability
    
    that    is   otherwise       established    under    the    totality   of    the
    
    circumstances.      This position is foreclosed by the Supreme Court,
    
    which directed that this state interest is to be weighed as part of
    
    the totality of the circumstances.           Id.
    
                                           88
         Citing Jones v. City of Lubbock, 
    727 F.2d 364
    , 383 (5th Cir.
    
    1984), and United States v. Marengo County Comm'n, 
    731 F.2d 1546
    ,
    
    1571 (11th Cir. 1984), plaintiffs urge that the Zimmer factor of a
    
    non-tenuous state policy is among the least important of the
    
    factors for determining dilution.          These decisions state only that
    
    defendants cannot defeat liability by using the non-tenuous policy
    
    justification of an electoral scheme to prove that scheme "does not
    
    have a discriminatory intent."        Marengo County, 731 F.2d at 1571.
    
    See also Terrazas v. Clements, 
    581 F. Supp. 1319
    , 1345 n.24 (N.D.
    
    Tex. 1983) (three-judge panel) ("In the case of tenuousness, the
    
    lesser weight is consistent with the change in emphasis from intent
    
    to results.      The principal probative weight of a tenuous state
    
    policy is its propensity to show pretext.").
    
         The plaintiffs' argument misses the point. The State of Texas
    
    has done more than assert that its interest in this electoral
    
    scheme     is   not   tenuous--that        is,     not   a    pretext   masking
    
    discriminatory intent in the adoption or maintenance of the scheme.
    
    The interest in linking electoral to jurisdictional base takes on
    
    additional and distinct relevance because it advances objectively
    
    substantive     goals.   The   inquiry      into    whether    an   interest   is
    
    substantial goes beyond inquiring whether the interest is non-
    
    tenuous.    A substantial state interest must be more than racially-
    
    neutral.    Thus, the linkage interest is not examined just because
    
    it proves that the state's practice is premised on a racially-
    
    neutral policy and is consistently applied.              Cf. S. Rep. 417 at 29
    
    
    
    
                                          89
    n.117, reprinted in 1982 U.S. Code Cong. & Admin. News at 207
    
    n.117.
    
         Proof of a merely non-tenuous state interest discounts one
    
    Zimmer factor, but cannot defeat liability.              It does not follow,
    
    however, that proof of a substantial state interest cannot defeat
    
    liability. The totality of circumstances inquiry that occurs after
    
    a showing of the Gingles prerequisites is not limited to factors
    
    listed in     the   legislative    history    of   the   Voting   Rights   Act.
    
    Gingles, 478 U.S. at 45, 106 S. Ct. at 2763; Westwego Citizens for
    
    Better Gov't v. City of Westwego, 
    946 F.2d 1109
    , 1120 (5th Cir.
    
    1991) (Westwego III).      The weight, as well as tenuousness, of the
    
    state's interest is a legitimate factor in analyzing the totality
    
    of circumstances.      As we have explained, the Voting Rights Act
    
    largely codifies Fourteenth Amendment jurisprudence embodied in
    
    White v. Regester, 
    412 U.S. 755
    , 
    93 S. Ct. 2332
    , 
    37 L. Ed. 2d 314
    
    (1973).   See Jones, 727 F.2d at 379-80.           The substantiality of the
    
    state's interest has long been the centerpiece of the inquiry into
    
    the interpretation of the Civil War Amendments and their interplay
    
    with the civil rights statutes.
    
         Having    rejected   the     proffered   extremes--that      the   linkage
    
    interest either always or never defeats § 2 liability--we turn to
    
    when the linkage interest precludes a § 2 violation. This question
    
    depends upon the weight of the interest.
    
              C. Weight of State's Interest Is Matter of Law
    
         The plaintiffs urge that the weight or substantiality of
    
    Texas' linkage interest is an issue of fact for the district court
    
    
                                          90
    to decide in the first instance, reviewable only for clear error.
    
    We disagree.       Deciding whether the adoption or maintenance of a
    
    system is    a     pretext   for    racial    discrimination   may   present   a
    
    question of fact.32 This question can turn on credibility, an issue
    
    best determined by a fact finder.              The issue of substantiality,
    
    however,    is    distinct   from    the     conventional   Zimmer   factor    of
    
    tenuousness and is a legal determination.
    
         The Supreme Court has held that the finding of dilution is a
    
    factual matter reviewable only for clear error.             Gingles, 478 U.S.
    
    at 78, 106 S. Ct. at 2780-81.          A substantial state interest is not
    
    inherently preclusive of dilution and is not raised to disprove the
    
    existence of dilution.         Rather, the state's interest is weighed
    
    against proven dilution to assess whether such dilution creates § 2
    
    liability.       Houston Lawyers',           U.S. at    , 111 S. Ct. at 2381
    
    (weighing of linkage interest on remand goes to determination of
    
    whether interests "outweigh proof of racial vote dilution").
    
         Determining the substantiality of Texas' linkage interest
    
    under the Voting Rights Act, a statute enacted to enforce the
    
    guarantees of the Civil War Amendments, is analogous to weighing
    
    the asserted state interest in constitutional law contexts.               With
    
    issues of substantive due process, equal protection, and the First
    
    Amendment, the weight of a state's interest has always been a legal
    
    question, not a factual one.           For example, in Posadas de Puerto
    
    
         32
          We do not decide this issue. Some appellate court
    decisions appear to have reviewed the tenuousness of state
    interests without deference to the underlying district court
    determinations. See, e.g., Zimmer, 485 F.2d at 1307.
    
                                            91
    Rico Ass'n v. Tourism Co. of Puerto Rico, 
    478 U.S. 328
    , 341, 106 S.
    
    Ct. 2968, 2977, 
    92 L. Ed. 2d 266
     (1986), the Court had "no
    
    difficulty      in   concluding     that     the   Puerto    Rico    Legislature's
    
    interests in the health, safety, and welfare of its citizens
    
    constitutes a 'substantial' governmental interest."                    In reaching
    
    this conclusion, the Court itself determined the weight of the
    
    state interest.        See also City of Cleburne v. Cleburne Living
    
    Center, 
    473 U.S. 432
    , 
    105 S. Ct. 3249
     (1985) (weighing state's
    
    interest de novo).          We hold that the substantiality of Texas'
    
    interest under § 2 is a question of law for this court to determine
    
    de novo and not a question of fact that somehow will be described
    
    on a county-by-county basis.
    
              D. Determining the Weight of the Linkage Interest
    
         The weight of Texas' interest is virtually assigned by a
    
    Supreme Court decision handed down on the same day as Houston
    
    Lawyers'.    In Gregory v. Ashcroft,                U.S.      , 
    111 S. Ct. 2395
    ,
    
    2404, 
    115 L. Ed. 2d 410
     (1991), the Supreme Court held that the Age
    
    Discrimination in Employment Act does not apply to judicial offices
    
    in Missouri. The plaintiffs had used ADEA to challenge a mandatory
    
    retirement age for state judges.                   The Court noted that "the
    
    authority    of      the   people      of    the   States    to     determine    the
    
    qualifications of their most important government officials . . .
    
    lies at the heart of representative government."                  Id. at        , 111
    
    S. Ct. at 2402 (internal quotation omitted).                  Gregory noted that
    
    "the States' power to define the qualifications of their office-
    
    holders   has     force    even   as    against    the     proscriptions   of    the
    
    
                                                92
    Fourteenth Amendment."     Id. at     , 111 S. Ct. at 2405.    To protect
    
    this power to define the judicial office, Gregory required a clear
    
    statement from Congress for an override of qualifications imposed
    
    by the State for important state government office.           Id. at      ,
    
    111 S. Ct. at 2406.     This requirement exists even if ADEA was based
    
    upon Congress' powers under the Fourteenth Amendment, rather than
    
    the Commerce Clause.     Id. at      , 111 S. Ct. at 2405.
    
         "The people of Missouri have a legitimate, indeed compelling,
    
    interest in maintaining a judiciary fully capable of performing the
    
    demanding tasks that judges must perform."        Id. at     , 111 S. Ct.
    
    at 2407.   If that interest is compelling, the people of Texas have
    
    at least a substantial interest in defining the structure and
    
    qualifications of their judiciary. Indeed, Texas' Attorney General
    
    has submitted to this court that linkage is a "fundamental right"
    
    that "serves [a] compelling interest" of the State of Texas.
    
    Linking electoral and jurisdictional bases is a key component of
    
    the effort to define the office of district judge.            That Texas'
    
    interest in the linkage of electoral and jurisdictional bases is
    
    substantial cannot then be gainsaid.
    
         Our   confidence    in   this   conclusion   is   bolstered   by   the
    
    recognition and pursuit of the linkage interest in other states.
    
    Courts have recognized the legitimacy and substance of similar
    
    linkage interests in Florida and Alabama.         See Nipper v. Chiles,
    
    
    795 F. Supp. 1525
    , 1548 (M.D. Fla. 1992); Southern Christian
    
    Leadership Conf. of Ala. v. Evans, 
    785 F. Supp. 1469
    , 1478 (M.D.
    
    Ala. 1992).   Of the twenty-nine states that elect their principal
    
    
                                         93
    trial court judges, including Texas, Alabama, and Florida, twenty-
    
    five        employ    district-wide       elections.33         The   overwhelming
    
    preservation of linkage in states that elect their trial court
    
    judges demonstrates that district-wide elections are integral to
    
    the judicial office and not simply another electoral alternative.
    
           The     decision     to    make    jurisdiction   and    electoral   bases
    
    coterminous is more than a decision about how to elect state
    
    judges.       It is a decision of what constitutes a state court judge.
    
    Such a decision is as much a decision about the structure of the
    
    judicial office as the office's explicit qualifications such as bar
    
    membership       or   the   age    of    judges.   The   collective     voice   of
    
    generations by their unswerving adherence to the principle of
    
    linkage through times of extraordinary growth and change speaks to
    
    us with power.        Tradition, of course, does not make right of wrong,
    
    but we must be cautious when asked to embrace a new revelation that
    
    right has so long been wrong.              There is no evidence that linkage
    
    
           33
          The twenty-five are Alabama, Arizona, California, Florida,
    Georgia, Idaho, Indiana, Kentucky, Michigan, Minnesota, Montana,
    Nevada, New Mexico, New York, North Dakota, Ohio, Oklahoma,
    Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Washington,
    West Virginia, and Wisconsin. Among these states, some appoint a
    portion of their trial judges, while others hold retention
    elections after initial selection by contested election. See
    generally 28 The Council of State Governments, The Book of the
    States 210-12 (1990) (table 4.4).
         Mississippi and Louisiana only recently abandoned the link
    between jurisdiction and electoral base in order to settle
    prolonged litigation.
         North Carolina allows every elector within a district
    court's jurisdiction to vote for its judge by holding statewide
    elections after district-wide primaries. See Republican Party of
    N. C. v. Martin, 
    980 F.2d 943
    , 947 (4th Cir. 1992) (holding that
    Fourteenth Amendment challenge to system by Republican Party is
    justiciable).
    
                                               94
    was created and consistently maintained to stifle minority votes.
    
    Tradition speaks to us about its defining role--imparting its deep
    
    running sense that this is what judging is about.
    
          On the other hand, plaintiffs' interests are not well-served
    
    by destroying linkage.           The inescapable truth is that the result
    
    sought   by    plaintiffs      here    would    diminish      minority   influence.
    
    Minority voters would be marginalized, having virtually no impact
    
    on most district court elections.               Given that district judges act
    
    alone in exercising their power, that use of the Voting Rights Act
    
    is perverse.      After subdistricting, a handful of judges would be
    
    elected from subdistricts with a majority of minority voters.
    
    Creating "safe" districts would leave all but a few subdistricts
    
    stripped of nearly all minority members.                  The great majority of
    
    judges would      be     elected   entirely      by   white    voters.      Minority
    
    litigants would not necessarily have their cases assigned to one of
    
    the   few     judges     elected      by   minority     voters.       Rather,      the
    
    overwhelming probability would be that the minority litigant would
    
    appear "before a judge who has little direct political interest in
    
    being responsive to minority concerns."                LULAC II, 914 F.2d at 650
    
    (Higginbotham,         J.,     concurring).           Under    the    totality     of
    
    circumstances, we must recognize that breaking the link between the
    
    electoral base and the jurisdiction of this single-member office
    
    would perversely lessen minority influence on the conduct of most
    
    litigation.
    
          The     distrust    of    judicial    subdistricts       does   not   rest   on
    
    paternalism.       It recognizes Texas' historic interest in having
    
    
                                               95
    district judges remain accountable to all voters in their district.
    
    Regardless of the race or residency of particular litigants, judges
    
    make choices that affect all county residents.               Texas has insisted
    
    that trial judges answer to all county voters at the ballot box.
    
    Unlike legislators or even appellate judges, who make decisions in
    
    groups, each district judge holds a single-member office and acts
    
    alone.    When collegial bodies are involved, all citizens continue
    
    to elect at least one person involved in making a particular
    
    decision. While subdistricting for multimember offices can enhance
    
    minority influence         because     members   from   minority     subdistricts
    
    participate in and influence all of the decisions of the larger
    
    body, subdistricting for single-member district court judgeships
    
    would leave minority voters with no electoral influence over the
    
    majority of judges in each county.            Subdistricting would partially
    
    disenfranchise citizens to whom all district judges in a county are
    
    now accountable.
    
         By   contrast,        under   the   present     regime,      minority   voters
    
    participate    in    all    judicial     elections    in   each    county.     This
    
    participation gives minority voters the opportunity to influence
    
    all elections, absent significant racial vote dilution. As Justice
    
    O'Connor noted in her concurring opinion in Gingles, voters can
    
    wield influence over elections even when those votes are cast for
    
    losing candidates.         Gingles, 478 U.S. at 98-99, 106 S. Ct. at 2791
    
    (O'Connor, J., concurring).          Denying importance to this ability to
    
    influence asks that all measures of success be found in the win-
    
    loss column.        This mandates proportional representation as the
    
    
                                             96
    measure of dilution, contrary to the explicit terms of § 2.
    
    Indisputably, subdistricting would assure the absence of minority
    
    influence over the judicial process.           See LULAC II, 914 F.2d at
    
    649-50    (Higginbotham,         J.,   concurring);    Southern        Christian
    
    Leadership Conf. of Ala. v. Evans, 
    785 F. Supp. 1469
    , 1478 (M.D.
    
    Ala. 1992) (Hobbs, J.) (by subdistricting judicial positions,
    
    "black voters ... will ... be sacrificing [an] extremely valuable
    
    political right--the right to vote for all of the judges who will
    
    be serving as judges in the circuit wherein they live").
    
         Plaintiffs contend that linking jurisdictional and electoral
    
    bases does not, in fact, protect these uniquely judicial interests.
    
    All of the plaintiffs' arguments reduce to the single contention
    
    that Texas does not consistently apply the policy of linking
    
    jurisdictional and electoral bases.
    
         Before addressing these arguments, we note that in assessing
    
    the relationship between the end pursued and the means employed,
    
    "our scrutiny will not be so demanding where we deal with matters
    
    resting firmly      within   a    State's   constitutional   prerogatives."
    
    Sugarman v. Dougall, 
    413 U.S. 634
    , 648, 
    93 S. Ct. 2842
    , 2850, 37 L.
    
    Ed. 2d 853 (1973).     As both Sugarman and Gregory make clear, such
    
    matters   include    "the    establishment    and   operation     of    its   own
    
    government, as well as the qualifications of an appropriately
    
    designated class of public office holders."           Sugarman, 413 U.S. at
    
    648, 93 S. Ct. at 2851.       Examining Texas' linking of electoral and
    
    jurisdictional bases in light of these considerations, we find that
    
    it serves the substantial interests we described.
    
    
                                           97
         The   plaintiffs    contend      that    Texas   district     judges    often
    
    adjudicate controversies involving litigants who are not residents
    
    of the county.      Defendants make several responses.              First, they
    
    maintain   that     because    a     district    judge's    area    of   primary
    
    jurisdiction   is    defined    by    county-specific      venue    rules,    most
    
    residents of a county will have their disputes adjudicated by
    
    judges they elect.      Second, the residency of particular litigants
    
    is not that important.        Regardless of the identity of litigants in
    
    a case, a district judge may make decisions or grant relief that
    
    impact primarily upon the residents of the district.
    
         By drawing attention to venue, plaintiffs only remind us of
    
    concerns unique to the district judge's office.                     Venue rules
    
    preserve   judicial     fairness      by     preventing    forum-shopping      and
    
    diminishing the chances of biased adjudication.              At the same time,
    
    the rules keep most local matters in local courts, where local
    
    juries are drawn and judges are accountable to voters for the legal
    
    and policy choices they make.34            The localized focus of district
    
    courts is particularly evident in criminal matters, where venue is
    
    based on events related to the offense.           Tex. Code Crim. Proc. Ann.
    
    ch. 13 (Vernon 1977).          Domicile and hence convenience to the
    
    
         34
          Texas venue law, as amended in 1983, has been influenced
    by both Spanish and English principles. Besides protecting civil
    defendants from inconvenient forums, the rules strive to ensure
    that local matters are tried in local courts. See generally
    Joseph W. McKnight, The Spanish Influence on the Texas Law of
    Civil Procedure, 38 Texas L. Rev. 24, 36-40 (1959); Charles T.
    Frazier, Jr., Note, Venue Procedure in Texas: An Analysis of the
    1983 Amendments to the Rules of Civil Procedure Governing Venue
    Practice Under the New Venue Statute, 36 Baylor L. Rev. 241, 241-
    44 (1984).
    
                                            98
    defendant have never been a consideration.                 Since the propriety of
    
    venue    goes    to    the     authority    of    the     court,   it   is    "quasi-
    
    jurisdictional        in     nature."      George    E.    Dix,    Texas     Charging
    
    Instrument Law:        The 1985 Revisions and the Continuing Need for
    
    Reform, 38 Baylor L. Rev. 1, 71 (1986).                 Thus, Texas law commonly
    
    refers to the district court's venue reach as its jurisdiction in
    
    criminal matters.          See, e.g., Hodge v. State, 
    527 S.W.2d 289
    , 292
    
    (Tex. Crim. App. 1975); Tex. Code Crim. Proc. Ann. Arts. 21.02(5),
    
    21.21(5) (Vernon 1989).
    
         Similarly, family law matters will almost always be handled by
    
    the local district court.          See, e.g., Tex. Fam. Code Ann. §§ 3.21,
    
    11.04 (Vernon 1986) (concerning venue in divorce and parent-child
    
    relationship suits).          Quintessentially local matters such as suits
    
    against counties or disputes involving title to real property must
    
    be tried in the district court of the same county.                  Tex. Civ. Prac.
    
    & Rem. Code §§ 15.001, 15.015 (Vernon 1986).                 Whatever the area of
    
    practice--whether civil, criminal, or family law--the conclusion
    
    reached in the concurring opinion in LULAC II remains valid.
    
    "[T]he   state    recognized       that    elimination       of    [the]     risk   and
    
    appearance of bias was essential to the office it was creating by
    
    an elaborate set of rules controlling venue."                      914 F.2d at 651
    
    (Higginbotham, J., concurring).                 The argument that Texas' venue
    
    rules somehow abrogate its interest in linking jurisdiction and
    
    electoral bases is illusory.
    
         Plaintiffs also challenge the legitimacy of the state interest
    
    in linkage by pointing to the use of visiting judges in the
    
    
                                               99
    district courts.      Judges not elected by a district's residents--
    
    e.g., judges from another district or retired judges--may be
    
    temporarily assigned to a district court, when necessary to dispose
    
    of its accumulated business, by the Chief Justice or regional
    
    presiding judge.      Tex. Gov't Code Ann. § 74.052 (Vernon 1988).35
    
    A typical occasion for such assignments is when the district judge
    
    is vacationing or ill.       Plaintiffs have not demonstrated that this
    
    measure of expedience represents an abandonment of the interests
    
    behind linkage.      To the contrary, insofar as linkage involves the
    
    appearance of judicial fairness and independence, visiting judges
    
    are not inconsistent with its purposes.          Because visiting judges
    
    will not stand for reelection, they do not create the impression of
    
    bias that may accompany a judge elected from a narrow constituency.
    
         Another challenge to the legitimacy of the linkage interest is
    
    based upon Article 5, § 7a of the Texas Constitution.           Plaintiffs
    
    reason that Texas abandoned its linkage interest by allowing the
    
    residents of counties to "opt out" of the linkage structure by
    
    selecting   judges    from   regions   smaller   than   a   county.   This
    
    contention is without merit.       As Chief Justice Phillips explained
    
    at trial, § 7a was enacted in 1985 as part of a constitutional and
    
    statutory scheme designed to equalize court dockets by allowing the
    
    realignment of judicial districts.         The provision states that a
    
    district smaller than a county may not be created unless approved
    
    by a majority of county voters.        Tex. Const. Art. 5, § 7a(i).    The
    
         35
          A visiting judge may not, however, hear a civil case over
    the objection of a party. Tex. Gov't Code Ann. § 74.053 (Vernon
    Supp. 1993).
    
                                        100
    people    of    Texas   have   jealously    reserved     to     themselves,   as
    
    individual voters, the power to subdivide districts that have
    
    always been the size of a county, or larger.            Nowhere in Texas' 254
    
    counties       have   residents   voted    to   break     the    link   between
    
    jurisdiction      and   electoral   base.       If   anything,      §   7a(i)'s
    
    unemployment testifies to affirmation, not abrogation, of the
    
    interest in linkage.
    
         Moreover, even if one county were to subdivide, the interest
    
    in linkage would not be lost in the state as a whole.               In Mahan v.
    
    Howell, 
    410 U.S. 315
    , 
    93 S. Ct. 979
    , 
    35 L. Ed. 2d 320
    , modified 
    411 U.S. 922
    , 
    93 S. Ct. 1475
    , 
    36 L. Ed. 2d 316
     (1973), the Supreme
    
    Court recognized that although Virginia divided one county when
    
    reapportioning its state legislature, it retained its interest in
    
    preserving boundaries of all other political subdivisions.               Id. at
    
    327, 93 S. Ct. at 986.      Texas' interest in preserving the structure
    
    of its judiciary by linking jurisdictional and electoral boundaries
    
    is greater than a state's interest in observing boundaries in
    
    legislative reapportionment, because it serves substantive purposes
    
    other than convenience.
    
         Finally, plaintiffs note that some rural district judges, and
    
    urban justices of the peace, are elected by a small number of
    
    voters.    Therefore, plaintiffs contend, judges elected by narrow
    
    constituencies are not antithetical to the state's interest in
    
    judicial independence. The structure of the justice courts have no
    
    bearing on Texas' interests in maintaining its system of district
    
    courts.    Justices of the peace need not be lawyers, and preside
    
    
                                         101
    over courts whose subject matter jurisdiction is limited to less
    
    significant disputes.        For instance, the justice court's criminal
    
    jurisdiction is limited to finable misdemeanors.           Significantly,
    
    the justice of the peace "is powerless to issue injunctions."
    
    Bowles v. Angelo, 
    188 S.W.2d 691
    , 693 (Tex. Civ. App.--Galveston
    
    1945, no writ).     The justice court is not a court of record, so
    
    when its rulings are appealed, the cases are tried de novo before
    
    a county court judge--a judge chosen by district-wide election.
    
    In great contrast, district courts are Texas' trial courts of
    
    general jurisdiction, charged with trying felony cases and civil
    
    matters of unlimited amounts in controversy.           As to rural Texas,
    
    linkage    is   preserved,    while   providing   as   broad   a    range   of
    
    constituents as the countervailing problems of courthouse proximity
    
    allow.
    
              E. Other Means to Accommodate the Linkage Interest
    
         Plaintiffs urge that the linkage interest can be accommodated
    
    even if the existing scheme were found to be illegal.              They offer
    
    two alternatives: either a complete overhaul of the existing venue
    
    scheme or the use of unconventional electoral methods that preserve
    
    at-large voting.     The plaintiffs suggest that a scheme of single-
    
    member districts may preserve linkage, by making each district
    
    judge's area of primary jurisdiction co-extensive with the single-
    
    member district from which the judge is elected.                   Plaintiffs
    
    provide no evidence that such a radical reworking of the venue of
    
    Texas courts would be administratively feasible.               The district
    
    court likewise simply asserted that such an arrangement of venue
    
    
                                          102
    limited   to   a    single-member     district     could   accommodate       Texas'
    
    interests,     without   a   glance    at    the   feasibility     of       such   an
    
    arrangement.       One look at Harris County cut into a grid of dozens
    
    of venue blocks is enough to show the bizarre nature of this
    
    proposal.
    
         We cannot conclude that Texas' interests could be adequately
    
    accommodated by such a radical reworking of Texas' venue rules.
    
    The proposal illustrates how different the judicial offices' at-
    
    large election scheme is from legislative and executive at-large
    
    elections.     Plaintiffs must propose not only changing the means by
    
    which Texas' district judges are selected, but also its system of
    
    venue, perhaps of case assignment procedures, and maybe even its
    
    jury selection methods.        The necessity for such proposals is a
    
    powerful testament to the reality that linkage is an essential part
    
    of the structure of the judicial office, much more than the method
    
    of electing the office holder.
    
         The plaintiffs also contend that the linkage interest deserves
    
    little weight because it might be accommodated by remedies other
    
    than subdistricting. In particular, plaintiffs point to the use of
    
    limited voting or cumulative voting. The Supreme Court, of course,
    
    "strongly prefer[s] single-member districts for federal court-
    
    ordered reapportionment."       Growe v. Emison,            U.S.        ,      , 
    113 S. Ct. 1075
    , 1084 (1993).       In any event, we do not agree that this
    
    argument undermines the substantiality of the state's interest.
    
         The allegedly illegal facet of the existing electoral scheme
    
    is that it employs at-large elections.              Both plaintiffs' amended
    
    
                                           103
    complaint   and    plaintiff-intervenors'      complaint-in-intervention
    
    assert that the existing "at large scheme" violates § 2, and pray
    
    for a court order "that district judges in the targeted counties be
    
    elected in a system which contains single member districts."           By
    
    employing at-large elections, the people of Texas have linked the
    
    electoral and jurisdictional base of the district judge.
    
         Limited and cumulative voting are election mechanisms that
    
    preserve at-large elections. Thus, they are not "remedies" for the
    
    particular structural problem that the plaintiffs have chosen to
    
    attack.   At trial, plaintiffs attempted to prove the three Gingles
    
    prerequisites.     This test establishes "that the minority has the
    
    potential to elect a representative of its own choice in some
    
    single-member     district"   and   "that   the   challenged   districting
    
    thwarts a distinctive minority by submerging it in a larger white
    
    voting population."     Growe,       U.S. at       , 113 S. Ct. at 1084.
    
    Plaintiffs then tried to supplement that evidence with proof of
    
    Zimmer factors, such as past discrimination and anti-single shot
    
    voting rules.     The question presented by this lawsuit is whether
    
    Texas' at-large election of district judges violates § 2.              To
    
    answer that question, we must determine the weight of the state's
    
    linkage interest.     We will not discount that interest based upon
    
    purported remedies that preserve the challenged at-large scheme.
    
    Plaintiffs cannot attack at-large voting as a violation of § 2, and
    
    then ignore the special characteristics of the judicial office by
    
    insisting that they will embrace a remedy that preserves that
    
    
    
    
                                        104
    scheme.     To do so would completely shunt consideration of the
    
    interest to the remedy stage, contrary to Houston Lawyers'.
    
                      F. Balancing the State's Interest
    
         In finding that Texas' interest is substantial, we recognize
    
    that it will not always defeat § 2 liability.          Substantiality is
    
    not quantifiable, and we translate its force in the practical world
    
    of trials to the burden required to overcome it.            As we see it,
    
    plaintiffs cannot overcome a substantial state interest by proving
    
    insubstantial    dilution.      We    hold   that   proof   of   dilution,
    
    considering the totality of the circumstances, must be substantial
    
    in order to overcome the state's interest in linkage established
    
    here.    As a matter of law, Texas' interest cannot be overridden by
    
    evidence that sums to a marginal case.       It will take more to create
    
    a fact issue for trial.      We must examine the circumstances in each
    
    county accordingly.
    
         We do not now attempt to define in detail what sort of proof
    
    of dilution would be substantial enough to override the state's
    
    linkage interest.     We do not change the nature or usual means of
    
    proof.    The Gingles prerequisites and Zimmer factors remain.         Two
    
    facts are especially relevant to assessing the substantiality of
    
    the plaintiffs' proof of dilution.         One is the willingness of the
    
    racial or ethnic majority--in this case, white voters--to give
    
    their votes to minority candidates. The other critical fact is the
    
    ability of minority voters to elect candidates of their choice even
    
    when opposed by most voters from the majority.          Among the Zimmer
    
    factors, proof of racial appeals in elections, non-responsiveness
    
    
                                         105
    of elected officials to minority voters, and persistent lack of
    
    electoral success by minority candidates are most important.
    
                     VI.   Application of Law to Each County
    
          We now turn to the application of these principles of law in
    
    each county.     As we have explained, the district court's findings
    
    of dilution are infected by erroneous legal principles.              Findings
    
    that rest upon erroneous views of the law must be set aside.
    
    Pullman-Standard v. Swint, 
    456 U.S. 273
    , 287, 
    102 S. Ct. 1781
    , 1789
    
    (1982).   Remanding for reconsideration is inappropriate where "the
    
    record permits only one resolution of the factual issue."              Id. at
    
    292, 102 S. Ct. at 1792.       Here, under controlling law, the evidence
    
    will not support the findings of liability. Our analysis is common
    
    to all counties but takes us along different routes in different
    
    counties. In the six counties of Dallas, Tarrant, Travis, Midland,
    
    Ector, and Lubbock, we hold that the district court clearly erred
    
    in finding vote dilution. Even if the district court were correct,
    
    the   evidence   would   be    outweighed    by   the   State's   substantial
    
    interest in linkage.          Finally, partisan voting at the least so
    
    weakens the proof of dilution that it loses in the weighing of the
    
    totality of the circumstances.              Even if we assume that some
    
    dilution may be inferred, in the three remaining counties the
    
    evidence does not outweigh the State's interest in the totality of
    
    the circumstances.
    
          One thread runs throughout the plaintiffs' case in all of the
    
    counties--an insubstantiality of proof that the minority-preferred
    
    candidate lost "on account of race."          Except in Dallas County, the
    
    
                                         106
    district court's finding of dilution rested on three recitations:
    
    (1) the Gingles prerequisites; (2) an invocation of a general
    
    history of discrimination; and (3) the number of minority judges
    
    was not proportional to the general minority population.               The size
    
    of some counties and the absence of single shot voting were seen as
    
    "enhancing" Zimmer factors.              The district court also found two
    
    instances of racial appeals in Dallas County, one in a judicial
    
    race won by the minority with white support.
    
                                     A. Dallas County
    
         Plaintiffs proceed on behalf of black voters in Dallas County.
    
    The voting age population of Dallas County is 1,106,757.                Of this
    
    number, 180,294 (16.3%) are black.              There are thirty-six different
    
    district courts in Dallas County.              Until 1987, none of the judges
    
    of these districts were black.             In 1987 and 1988, three of the
    
    district judges, or 8.3% of the total, were black.                In 1989, there
    
    were two black district judges in Dallas County, 5.5% of the total.
    
    Today, five of the thirty-seven36 district judges in Dallas (13.5%)
    
    are black. County court judges are also elected at-large in Dallas
    
    County; two of those judges are black. Undisputed expert testimony
    
    and surveys showed that less than 2.0% of the lawyers in Dallas
    
    County are both eligible to serve as district judges and black.
    
         The     evidence      in   Dallas   County    clearly     establishes   that
    
    judicial elections are decided on the basis of partisan voting
    
    patterns.       We   are   left   with    the    inescapable    conclusion   that
    
    plaintiffs have failed to prove that minority-preferred judicial
    
         36
              Another district court was added by the legislature.
    
                                             107
    candidates in this county are consistently defeated by racial bloc
    
    voting.    This is a failure to meet the threshold showing required
    
    by Gingles.
    
         Uncontroverted evidence demonstrates that 99% of black Dallas
    
    voters support the Democratic candidate in every judicial election.
    
    The evidence also indicates that the majority of white voters
    
    always voted for the Republican, and thus for candidates other than
    
    the black-preferred Democratic candidate.               As a result of these
    
    voting patterns, the black-preferred Democratic candidate always
    
    lost in judicial elections, regardless of the year of the election
    
    in Dallas County.          The Republican Party dominated every analyzed
    
    judicial race.         Defendants understandably contend that the defeat
    
    of black-preferred candidates is the result of party affiliation
    
    rather    than    racial    considerations.       According    to    defendants,
    
    elections are determined by straight-party voting in which voters
    
    support    their       party's   ticket    regardless   of   the    race   of   the
    
    candidates.        The undisputed facts overwhelmingly support this
    
    contention.        Plaintiffs offer the only answer they have--the
    
    evidence is not legally relevant.
    
         Drs. Engstrom and Taebel, plaintiffs' and defendants' experts
    
    respectively, analyzed seven district court general elections with
    
    black candidates.          The following table summarizes the experts'
    
    analyses, in particular the amount of support from white voters
    
    received by each candidate.          The first figure represents the "non-
    
    black vote" as estimated by plaintiffs' expert.                    The range is
    
    defined   by     the    homogenous   precinct    and    bi-variate    regression
    
    
                                              108
    analysis performed by Engstrom. The second figure, in parentheses,
    
    represents the white vote as estimated by Taebel.                      Taebel did not
    
    analyze the 1984 Tinsley-Maloney race.
    
                                           Table VI.A
    
    Year   Court              Candidates    Race      Party   Non-black (white) vote
    1980   191st District     Winn          B         D       38.6-39.7% (36%)
                              Howell        W         R
    1984   Crim Dist Ct 2     Baraka        B         R       60.6-61.8% (61%)
                              Metcalfe      W         D
     "     Crim Dist Ct 4     Tinsley       B         D       28.7-30%
                              Maloney       W         R
     "     301st District     White         B         D       30.6-31.9% (31%)
                              O'Donnell     W         R
    1986   195th District     Tinsley       B         D       36.6-37.5% (31%)
                              Kendall       W         R
     "     256th District     Wright        B         R       70.6-71.7% (77%)
                              Brin          W         D
    1988   95th District      Oliver        B         D       36.9-37.9% (38%)
                              Brown         W         R
    
    
    Roughly 61%-77% of white voters consistently supported Republicans,
    
    even when black Republicans ran against white Democrats. Virtually
    
    all black voters supported the Democratic candidate, even when the
    
    Democratic candidate was white, running against black Republicans.
    
           Black Republicans won in two of the seven analyzed district
    
    court    races.         According      to    Taebel's        study,    one    of   these
    
    Republicans, Carolyn Wright, did better among white voters than any
    
    other Republican, white or black, winning 77% of the white vote.
    
    Other black Republicans received percentages of the white vote
    
    comparable to those received by white Republicans.                       Judge Baraka,
    
    the other black Republican district court candidate, took about 61%
    
    of the white vote against a white Democrat.                   County Judge Brashear,
    
    another black Republican running at-large against a white Democrat,
    
    took 66% of the white vote in his successful race for a county
    
    court judgeship.
    
                                                109
         Just as black Republicans did as well or better than white
    
    Republicans, black Democrats also won as large a percentage of the
    
    white vote as white Democratic candidates.      The white vote for
    
    Democratic candidates ranged between 23% and 39%.      According to
    
    plaintiffs' exhibits, black Democrat Oliver won about 38%--a larger
    
    than average share of the white vote for a Democrat.   Winn, another
    
    black Democrat, received almost four out of ten white votes.     By
    
    comparison, white Democrat Brin received no more than 29% of the
    
    white vote when running against Wright, a black Republican.
    
         Republican candidates lost the black vote and won the white
    
    vote regardless of their public positions on matters related to
    
    race.    Judge Wright, for instance, had been a member of the Dallas
    
    Chapter of the Coalition of 100 Black Women; served as a legal
    
    intern for the Lawyers' Committee on Civil Rights, a project
    
    related to civil rights in South Africa; and was a charter member
    
    and past vice-chair of the National Political Congress of Black
    
    Women.    By contrast, the record is silent regarding the record of
    
    her white Democratic opponent, Brin.     Brin nevertheless won the
    
    black vote handily in the general election.    At the same time, an
    
    overwhelming number of white voters supported Wright.
    
         Dr. Champagne, an expert called by defendants, testified that
    
    this voting pattern was the result of straight-ticket voting.
    
    According to Dr. Champagne, judicial elections are low-profile
    
    elections in which the voters know little more about the candidates
    
    than what they read on the ballot.      The voters, therefore, will
    
    make their choice based upon the information that the ballot
    
    
                                     110
    contains--party affiliation.          Because a majority of voters in
    
    Dallas County are Republican, Republican candidates prevail in most
    
    of the judicial races.
    
          We are unable to find the requisite presence of race in this
    
    data.     The undisputed facts permit no conclusion but that the
    
    defeat of black-preferred candidates was the result of the voters'
    
    partisan affiliation. The black-preferred candidate was always the
    
    Democratic candidate, while the majority of white voters always
    
    supported the Republican candidate. It is significant to the probe
    
    for racial influences that 30% to 40% of the white electorate
    
    supported Democratic candidates, although the combination of black
    
    and white Democratic votes was insufficient to carry the Democratic
    
    candidate.      The point is that a black Democratic voter and a white
    
    Democratic voter stand in the same position.              Both are unable to
    
    elect the Democratic judicial candidate they prefer.
    
          We repeat.       The race of the candidate did not affect the
    
    pattern. White voters' support for black Republican candidates was
    
    equal to or greater than their support for white Republicans.
    
    Likewise, black and white Democratic candidates received equal
    
    percentages of the white vote.         Given these facts, we cannot see
    
    how   minority-preferred      judicial      candidates    were   defeated   "on
    
    account    of   race   or   color."      Rather,   the    minority-preferred
    
    candidates were consistently defeated because they ran as members
    
    of the weaker of two partisan organizations.             We are not persuaded
    
    that this is racial bloc voting as required by Gingles.
    
    
    
    
                                          111
         Plaintiffs contend that the Democratic Party better represents
    
    the political views of black voters in Dallas County.                   This is
    
    doubtlessly the view of black voters, but it is not relevant to
    
    whether the minority-preferred candidate is defeated on account of
    
    race.   To the extent that candidates preferred by black voters are
    
    consistently      defeated   because    of   their   substantive      political
    
    positions, they are the casualties of interest group politics, not
    
    racial considerations.        This is not the harm against which § 2
    
    protects.      Section 2 protects black voters against defeat on
    
    account of race or color, not on account of political platform.
    
    See Whitcomb, 403 U.S. at 154-55, 91 S. Ct. at 1874-75.                  We are
    
    sensitive to the reality that political positions can be proxies
    
    for racial prejudice.        However, where white voters support black
    
    candidates of a particular party in larger percentage than they
    
    support white candidates of the same party, there is no basis,
    
    without more, for us to conclude that the parties' political
    
    positions are proxies for racial bias.
    
         Even assuming arguendo that plaintiffs have met the Gingles
    
    threshold    by    showing    racial    bloc    voting,   the     totality   of
    
    circumstances     in   the   record    cannot   support   a   §   2   violation.
    
    Plaintiff-intervenors Oliver, White, and Tinsley contend that "race
    
    considerations pervade elections in Dallas County."               They support
    
    this proposition with the district court's finding that there were
    
    two instances of overt or subtle racial appeals in Dallas County
    
    elections.   In one, judicial candidate Baraka was labeled a "Black
    
    Muslim" by his opponent.       In another, district attorney candidate
    
    
                                           112
    Vance printed his own and his opponent West's pictures in campaign
    
    literature, thus informing the electorate that he was a white
    
    candidate    running    against    a    black   opponent.       Nothing      in    the
    
    district court's opinion indicates that these racial appeals were
    
    anything more than isolated incidents.                   In the only judicial
    
    election affected by a racial appeal, Judge Baraka, the black
    
    candidate,    won    both    the   Republican      primary     and   the    general
    
    election, winning a majority of the white vote in both elections.
    
         Oliver, Tinsley, and White also contended at trial that voting
    
    patterns in nonpartisan elections show that partisan affiliation
    
    could not explain the defeats of black-preferred candidates.                       Dr.
    
    Weiser, a statistician with experience in voting rights litigation,
    
    presented this data.         Weiser examined seven Dallas City Council
    
    elections, a presidential primary, and referenda on public transit
    
    funding, a police-review board, and the city council structure.
    
    The district court made no findings about the data.                        Assuming
    
    arguendo that these high-profile elections had any relevance to
    
    voting   patterns      in   low-profile       judicial    elections,       the    data
    
    presented do not support plaintiffs' argument.                       For example,
    
    although    Weiser   emphasized        that   black    city   council   candidate
    
    Williams drew 27% and 7% of the vote in the most predominantly
    
    black and white precincts, respectively, the fact remains that his
    
    opponent Rucker won a majority of the black vote and the election.
    
    Other    black-preferred      candidates,       such     as   Strauss   in       1983,
    
    prevailed in three of the other six city council elections Weiser
    
    studied.     In the 1984 Democratic presidential primary, Jesse
    
    
                                            113
    Jackson won a plurality (46%) of the Dallas vote.                Simply put,
    
    these nonpartisan elections do not demonstrate the consistent
    
    defeat of minority-preferred candidates.            To the contrary, the
    
    evidence shows that black-preferred candidates won a majority of
    
    the white vote and the election in most cases.
    
         Extending our compass to the totality of circumstances fails
    
    to bring evidence that racial politics played any role in the
    
    defeat of black-preferred candidates.       The district court rejected
    
    the suggestion    that   the   Republican   Party    is   a    white   slating
    
    organization.    Testimony shows that any eligible candidate could
    
    run as a Republican, regardless of race. The plaintiff-intervenors
    
    testified themselves that they had been heavily lobbied by the
    
    Republican Party leadership to run on the Republican ticket.
    
    Running as Republicans, the great likelihood is that these former
    
    district judges would have been elected, as plaintiff-intervenors
    
    conceded at trial.
    
         The plaintiffs presented general evidence of the lingering
    
    effects of past discrimination, but offered no specific evidence of
    
    depressed levels of black political participation such as low black
    
    voter registration or turnout.         On the contrary, the minority-
    
    preferred candidates ran professional, well-financed campaigns
    
    backed by the Democratic Party, a party that, until the late
    
    1970's,   had   dominated   Dallas    County   judicial       races    just   as
    
    completely as the Republican Party now dominates those races.
    
    These Democratic candidates lost because Dallas County shifted from
    
    
    
    
                                         114
    being a county of predominantly Democratic straight-ticket voters
    
    to a county of mostly Republican straight-ticket voters.
    
         Plaintiffs    made   no   factual   riposte   to   the    overwhelming
    
    evidence that election outcomes were the product of partisan
    
    affiliation.    Rather, plaintiffs' answer was the legal assertion
    
    that the effect of partisan affiliation, virtually admitted, is not
    
    relevant.    Plaintiffs' expert, Engstrom, conceded that there is "a
    
    stronger association between partisan affiliation and success than
    
    there is between the race of the candidate and success," while
    
    clinging to the assertion that partisan affiliation does not
    
    explain all of the voting patterns in Dallas County.            Finally, he
    
    conceded that he had no data that black Democrats generally did
    
    worse than white Democrats.       In fact, the undisputed facts show
    
    that, when one controls for party, black candidates did as well as,
    
    or better than, white candidates in winning the white voter and
    
    elections.     Plaintiff-intervenor      White   conceded     that    partisan
    
    affiliation determined her electoral defeat in 1984.           She admitted
    
    that "if I ran as a Republican . . . the likelihood is that I would
    
    win."
    
         In short, the facts demonstrate that partisan affiliation, not
    
    race, was responsible for the defeat of the minority-preferred
    
    candidate in Dallas County.      The district court erred in finding
    
    racial vote dilution and a violation of § 2.
    
                               B. Harris County
    
         Harris County elects 59 district judges at-large.               Three are
    
    black, three are Hispanic, and the rest are Anglo.                   One black
    
    
                                       115
    county court judge also was elected at-large.               Uncontested expert
    
    testimony and surveys establish that black lawyers make up at most
    
    3.8% of the eligible lawyers, but comprise 5.1% of Harris County's
    
    district judges.      According to plaintiffs' evidence, 1,685,024
    
    people of voting age reside in Harris County; 305,986 (18.2%) are
    
    black, and 222,662 (13.2%) are Hispanic.                  Plaintiffs claim to
    
    represent all black voters in Harris County.
    
         The district court found a § 2 violation based on the three
    
    Gingles   prerequisites,      two   primary    Zimmer     factors,    and    three
    
    "enhancing" Zimmer factors.          The primary Zimmer factors were (1)
    
    the general history and lingering effects of past discrimination
    
    and (2) the small number of successful black judicial candidates.
    
    The enhancing Zimmer factors were (1) the large size of Harris
    
    County; (2) the prevention of single shot voting by numbered post
    
    election; and (3) the majority runoff requirement in primary
    
    elections.     Defendants     contend       that,   under    the    proper   legal
    
    standards, the evidence before the district court amounts at best
    
    to a weak case of dilution that is clearly outweighed by Texas'
    
    interest in linkage.     We agree.
    
         Defendants argue that the district court's determination that
    
    Harris    County   district   court    elections     were    characterized      by
    
    legally significant racial bloc voting rests on two fundamental
    
    departures from controlling law.            They maintain that the district
    
    court erred in (1) refusing to consider evidence demonstrating that
    
    divergent    voting   patterns      among   black   and     white   voters    were
    
    attributable to partisan affiliation and (2) excluding elections in
    
    
                                          116
    which     the    black-preferred      candidate     was      Hispanic    despite
    
    overwhelming evidence that Harris County black and Hispanic voters
    
    were a cohesive group within the meaning of § 2. In light of our
    
    previous discussion, these contentions plainly have merit.37
    
         Engstrom studied only 17 district court elections involving
    
    black     candidates.     Taebel     studied   45   Harris    County    judicial
    
    elections between 1980 and 1988 with either a black or Hispanic
    
    candidate, including 24 district court elections, 9 county court
    
    elections,      one   court   of   appeals   election,    one   Supreme    Court
    
    election, and ten primary elections.           Taebel examined all but two
    
    of the elections analyzed by Engstrom.              Including the 42 races
    
    listed in Judge Wood's exhibits, the record before the district
    
    court contained a total of 45 general elections that involved
    
    
    
    
         37
          The Houston Lawyers' Association maintains that the
    district court properly refused to consider elections in which
    black and Hispanic voters gave their united support to Hispanic
    candidates. The Association does not deny that black and Hispanic
    voters uniformly supported the same candidates in virtually every
    election analyzed, thus making them a cohesive group under our
    precedents. Rather, it objects to our examination of these races
    on the more general grounds that "minorities protected by the
    Voting Rights Act are not interchangeable" and that the success
    of Hispanic candidates "does not tell us anything about the
    willingness of white voters to support African American
    candidates." These objections, of course, go directly to the
    rule permitting the aggregation of different racial and ethnic
    minorities itself rather than its application to the facts of
    this case. We do not understand either the Association or any
    other plaintiffs to challenge the validity of this general rule.
    Nevertheless, as we demonstrate below, the weight of Texas'
    linkage interest precludes the finding of a § 2 violation even if
    these Hispanic-white elections are excluded.
    
                                           117
    minority candidates.            Forty of these were indigenous district or
    
    county court elections.38
    
           38
                                        Table VI.B
           Indigenous judicial elections (Harris County)
           1.    candidate listed first prevailed
           2.    bold indicates black-preferred candidate
           3.    * indicates race Engstrom studied
           4.    T indicates victory by black-preferred candidate
    Year   Court                 Candidates    Race   Party
    1980   80th District*        McAfee        W      R
                                 Bonner        B      D
     "     309th District        Zimmerman     W      R
                                 Hinojosa      H      D
     "     County Crim Ct 6      Musselwhite   W      R
                                 Muldrow       B      D
    1982   157th District        Salazar       H      D       T
                                 Powell        W      R
     "     208th District*       Routt         B      D       T
                                 Arnold        W      R
     "     262d District*        Shaver        W      R
                                 James         B      D
     "     281st District*       Moore         W      R
                                 Ward          B      D
     "     308th District        Robertson     W      D       T
                                 Leal          H      R
     "     County Crim Ct 6      Musselwhite   W      R
                                 Muldrow       B      D
     "     County Crim Ct 9      Leal          H      D       T
                                 Kolenda       W      R
    1984   80th District*        Powell        W      R
                                 Berry         B      D
     "     178th District*       Harmon        W      R
                                 Jackson       B      D
     "     215th District*       Chambers      W      R
                                 Lee           B      D
     "     339th District        Lanford       W      R
                                 Salinas       H      D
     "     County Civil Ct 3     Hughes        W      R
                                 Hobson        B      D
    1986   133d District*        McCorkle      W      R
                                 Plummer       B      D
     "     157th District        Salazar       H      D       T
                                 Wittig        W      R
     "     180th District        Lykos         W      R
                                 Guerrero      H      D
     "     185th District*       Walker        B      D       T
                                 Godwin        W      R
     "     209th District        McSpadden     W      R
                                 Sanchez       H      D
     "     232d District         Azios         H      D       T
                                 Youngblood    W      R
     "     245th District*       Schuble       W      D       T
                                 Proctor       B      R
     "     281st District*       Moore         W      R
                                 Berry         B      D
     "     308th District        Robertson     W      D       T
                                 Dodier        H      R
     "     County Civil Ct 3     Hobson        B      D       T
                                 Hughes        W      R
     "     County Crim Ct 3      Duncan        W      D       T
                                 Irvin         B      R
     "     County Crim Ct 4      Anderson      W      R
                                 Williams      B      D
     "     County Crim Ct 9      Leal          H      D       T
                                 Powell        W      R
     "     County Crim Ct 11     Mendoza       H      D       T
                                 Pickren       W      R
     "     County Crim Ct 13     Atkinson      W      R
                                 Fitch         B      D
     "     County Crim Ct 14     Barclay       W      R
                                 Fisher        B      D
     "     County Probate Ct 4   McCullough    W      R
                                 Lee           B      D
    1988   80th District*        Powell        W      R
                                 Berry         B      D
     "     133d District*        McCorkle      W      R
                                 Plummer       B      D
     "     152d District*        O'Neill       W      R
    
    
                                                118
          As    in    Dallas        County,        voters'        preferences   were   strongly
    
    influenced, if not dictated, by partisan affiliation.                             The black-
    
    preferred candidate in Harris County, regardless of race, was
    
    always     the         Democratic           candidate.        For   white   voters,    party
    
    affiliation always trumped race in predicting which candidates
    
    would be supported. The Republican candidate always won the white
    
    vote, generally taking between 55% and 65%, whether the Republican
    
    candidate was black, Hispanic, or Anglo.                            Similarly, Democratic
    
    candidates always took almost all black and Hispanic votes, even
    
    when a white Democrat ran against a black or Hispanic Republican.
    
          Both the exhibits and expert testimony indicated that party,
    
    not   race,      was      the     decisive          factor     in   determining    electoral
    
    outcomes. For example, when white Democrat Schuble defeated black
    
    Republican Proctor in a 1986 district court race, Proctor won the
    
    majority of the white vote, but lost more than 95% of the black
    
    vote to Schuble.           Likewise, when Irvin, another black Republican,
    
    ran for a county court judgeship against white Democrat Duncan,
    
    Irvin won the white vote while Duncan received virtually all of the
    
    black vote.       Kenneth Hoyt, now a United States District Judge, won
    
    the white vote and the election in his bid for the state appellate
    
    bench against a white Democratic opponent in 1984. Yet despite the
    
    
    
    
                                    Fitch           B         D
    "     179th District            Wilkinson       W         R
                                    Guerrero        H         D
    "     215th District*           Chambers        W         R
                                    Jackson         B         D
    "     295th District*           Downey          W         R
                                    Lee             B         D
    "     333d District*            Wilson          W         R
                                    Spencer         B         D
    "     351st District            Salinas         H         D    T
                                    Pruett          W         R
    
    
                                                        119
    endorsement of the Houston Lawyers' Association, Judge Hoyt lost
    
    virtually all of the black vote.
    
           It is against this backdrop of straight-ticket voting that the
    
    limited success of black-preferred candidates described by Engstrom
    
    must    be    assessed.    Engstrom     limited     his    study    to   elections
    
    involving black candidates.         Since the black-preferred candidate
    
    often is not black, this precluded Engstrom from determining
    
    whether whites in Harris County consistently voted as a bloc to
    
    defeat       black-preferred   candidates,    as    he     admitted      at   trial.
    
    Engstrom also excluded judicial elections with Hispanic candidates
    
    and races for seats on the county court, which are also conducted
    
    on a county-wide basis.
    
           The black-preferred candidate won only two, or 11.8%, of the
    
    17 district court elections analyzed by Engstrom.                   Ten of these
    
    losses by black Democrats, however, occurred in 1980, 1984, and
    
    1988,    when    popular   Republican    presidential       candidates        helped
    
    Republican judicial candidates to defeat virtually all of their
    
    Democratic opponents.          The victors included Judge Hoyt, a black
    
    candidate running as a Republican. As Engstrom conceded, white and
    
    black Democrats alike were "wiped out" during these years.
    
           The fortunes of Harris County Democrats, and thus black
    
    voters,      improved   considerably    in   1982    and    1986,    when     either
    
    Governor Mark White or Senator Lloyd Bentsen headed the Democratic
    
    ticket.        As in the Republican years of 1980, 1984, and 1988,
    
    success at the top of the ballot carried down to judicial races
    
    marked more by anonymity than name identity. Thus, black-preferred
    
    
                                           120
    candidates won more than a third of the indigenous judicial races
    
    in which black candidates participated--5 out of 14, or 35.7%.
    
    Considering elections with Hispanic candidates, black-preferred
    
    candidates won 13 out of 24 indigenous judicial elections, or
    
    52.4%.   Narrowing the focus to district court races, black voters
    
    elected the candidate of their choice 8 out of 14 times.                   In these
    
    years, the black-preferred candidate for district judge won in
    
    57.1% of the elections studied.        Even when the results of the lean
    
    years of 1980, 1984, and 1988 are included, we find that the black-
    
    preferred    candidate   prevailed     in   14   out   of   40     (35%)    of   all
    
    indigenous judicial elections with minority candidates. The record
    
    also indicates that black-preferred candidates won three out of
    
    five exogenous races for appellate and Supreme Court seats during
    
    these years.
    
         Plaintiffs insist, however, that partisan affiliation cannot
    
    explain all of the results in this case, for in years not dominated
    
    by the Republican Party, black Democrats enjoyed less success than
    
    other Democrats.     In the 1982 district court contests, white and
    
    Hispanic Democrats won 12 of 14 races, while black Democrats won
    
    only one of three.       In 1986, black Democrats won two of eight
    
    indigenous judicial races; the success rate of white Democrats is
    
    not found in the record.      Engstrom stated, without discussing the
    
    supporting data, that between 1980 and 1988, white Democratic
    
    candidates     enjoyed   a   better    success    rate      than    their    black
    
    counterparts.
    
    
    
    
                                          121
         This evidence may reflect a preference among white Democrats
    
    for white and Hispanic rather than black candidates.           Plaintiffs'
    
    assertion that race is at work, however, is contradicted by the
    
    success of black candidates in the Democratic primary, where party
    
    affiliation plays no part.        An exhibit introduced by Houston
    
    Lawyers' Association shows that black candidates won 9 of 16, or
    
    56.3%, of the contested primary races.       This showing detracts from
    
    the force of plaintiffs' claim.
    
         The proof of vote dilution is marginal. The undisputed facts
    
    show that a majority of white voters invariably supported black
    
    Republican candidates, suggesting that the defeat of minority-
    
    preferred   candidates   was     largely,     although   not       entirely,
    
    attributable to partisan affiliation.       Moreover, black voters were
    
    consistently able to elect representatives of their choice, even
    
    when they were opposed by a majority of white voters.             The record
    
    indicates that black-preferred candidates prevailed in 14 out of 40
    
    non-exogenous   elections   in   which      either   black   or    Hispanic
    
    candidates participated--35% of the time.       Limiting the inquiry to
    
    district court races, black-preferred candidates still won in 9 of
    
    28 races, or 32.1%.
    
         Black voters could, therefore, repeatedly elect candidates of
    
    their choice, even when opposed by a majority of white voters.           Far
    
    from being submerged in a white majority, black voters were a
    
    potent electoral force that could form coalitions with minorities
    
    of white voters to elect their preferred candidates.         This ability
    
    to form coalitions and influence the elections of all judges in
    
    
                                      122
    Harris   County     would    be    lost   in     the   system      of   single-member
    
    districts proposed by the plaintiffs.              Instead, black voters might
    
    control the election of perhaps ten judges, abdicate any right to
    
    vote for the remaining forty-nine, and thus radically reduce the
    
    chances of having disputes affecting them decided by a judge they
    
    had any hand in electing.          A similar observation can be made in the
    
    other    counties     but    is    strikingly      apt     in   this     large   urban
    
    environment.
    
         The remaining evidence adds little to plaintiffs' claims of
    
    illegal vote dilution.            Plaintiffs offered little evidence that
    
    past discrimination and socioeconomic disparities between blacks
    
    and whites hindered the ability of black residents of Harris County
    
    to participate in the political process.                 In particular, there was
    
    no suggestion at trial of a lower-than-average voter registration
    
    or turnout rate among black citizens.                  In addition, the evidence
    
    indicated that disproportionate levels of poverty within the black
    
    community had no effect on the ability of black judicial candidates
    
    to raise the funds necessary to compete on a county-wide basis.                    At
    
    trial, Bonnie Fitch testified, without elaboration, that a few
    
    black incumbents experienced some difficulty in obtaining financing
    
    for their campaigns, but she attributed these problems to "racial
    
    discrimination" and the candidates' "past record of losing." Even
    
    if this isolated, equivocal testimony could somehow be construed to
    
    suggest that a lack of resources among black residents hindered
    
    black candidates' campaigns, it was sharply contradicted by the
    
    accounts    related     by    Jackson      and    Berry,     two    black    judicial
    
    
                                              123
    candidates. They testified that they were each able to raise
    
    sufficient   funds   and    that    they       in    fact    outspent     their   white
    
    Republican opponents by ratios exceeding ten-to-one. In light of
    
    this evidence, the district court's finding that the effects of
    
    past discrimination hampered the black community's access to the
    
    political process was clearly erroneous.
    
         Likewise, the representation of blacks on the Harris County
    
    bench cannot support an inference of racial politics. Three blacks
    
    are district     judges--5.1%       of   the        total.     By   contrast,     black
    
    attorneys make up at most only 3.8% of the eligible lawyers in
    
    Harris   County.     The     fact    that      blacks        constitute    a   smaller
    
    percentage of the district judges than of the county population is
    
    therefore not surprising. If judges were chosen at random from the
    
    pool of eligible candidates, there would be fewer black district
    
    judges on the Harris County bench.
    
         Aside from the number of black judges and the general history
    
    of discrimination, the district court found three Zimmer enhancing
    
    factors.   See Nevett v. Sides, 
    571 F.2d 209
    , 218 (5th Cir. 1978).
    
    Such factors enhance the opportunity of a white majority to engage
    
    in racial politics.        They do not, however, "meaningfully advance
    
    the inquiry into whether race is at issue," Terrazas v. Clements,
    
    
    581 F. Supp. 1319
    , 1346 n.26 (N.D. Tex. 1983) (three-judge panel),
    
    and therefore do not support an inference of racial politics in
    
    Harris County.
    
         The   circumstantial     evidence         of     a   relation   between      black
    
    voters' electoral losses and race is, at best, tenuous, given the
    
    
                                             124
    willingness of white voters to support black Republican candidates
    
    and the consistent success enjoyed by black-preferred judicial
    
    candidates. Even if the considerable success among black-preferred
    
    Hispanic candidates is discounted, the evidence presented at trial
    
    hardly sums to the level of dilution that might outweigh Texas'
    
    substantial interest in linking a trial judge's jurisdiction with
    
    her electoral base.   Given the undisputed evidence that nearly all
    
    of the losses suffered by black candidates occurred in years when
    
    virtually   the   entire   party   slate   went   down   in   defeat   and
    
    plaintiffs' negligible showing under the Zimmer factors, the claim
    
    before us reduces itself to a contention that Texas' 143-year-old
    
    electoral scheme must be dismantled in Harris County because a few
    
    black candidates--most of them recently-appointed incumbents--
    
    failed to attract decisive support from white voters within the
    
    Democratic Party. We express no opinion as to whether this minimal
    
    proof of dilution might establish a violation of § 2 absent the
    
    substantial state interest.        Even assuming that it would, we
    
    conclude as a matter of law that plaintiffs' proof at best produces
    
    only a marginal case in Harris County, too insubstantial to survive
    
    the weighing of the totality of the circumstances particularly so
    
    if any appreciable weight is given the linkage interest.
    
                               C. Tarrant County
    
         There are 23 district courts in Tarrant County.          From 1985 to
    
    1988, three of these judges (13.0%) were black.          As of 1989, two
    
    district judges are black (8.7%).          The defendants' undisputed
    
    evidence indicates that only 2.4% of the eligible Tarrant County
    
    
                                       125
    lawyers are black.       There are 613,698 residents of voting age in
    
    Tarrant   County.       Of   this    number,     63,851    (10.4%)   are   black.
    
    Plaintiffs proceed on behalf of black voters in Tarrant County.
    
          The evidence indicates that blacks voted cohesively for the
    
    Democratic candidate.        Dr. Brischetto, plaintiffs' expert for this
    
    county, analyzed four elections:               three general elections for
    
    district judgeships and the 1988 Democratic presidential primary.
    
    In all four elections, the regression estimates show that from 85%
    
    to 100% of black voters in Tarrant County supported the black-
    
    preferred, Democratic candidate. Taebel's analysis similarly shows
    
    cohesion.
    
          Taebel    analyzed     nine    general     elections,    including    three
    
    exogenous elections, in which a black or Hispanic had participated.
    
    These included five district court races, one county court race,
    
    two Supreme Court races, and a contest for Texas Attorney General.
    
    Brischetto analyzed only four elections, in which black candidates
    
    had participated.       As in all other counties, the evidence shows
    
    consistent black support for Democratic candidates.              The following
    
    tables summarize the analyzed races involving black or Hispanic
    
    candidates.      For each black-preferred candidate, the estimated
    
    percentage of the white vote is listed.                   These are based upon
    
    Taebel's estimates, except those in parentheses, which reflect
    
    Brischetto's     regression    and    homogenous     precinct    analyses.     A
    
    "check" mark indicates a victory by the black-preferred candidate.
    
                                        Table VI.C
    Indigenous judicial elections (Tarrant County)
    
    
    
                                           126
    Year   Court                     Candidates    Race   Party White Vote
    1982   233d District             Valderas      H      D      36%               T
                                     Hines         W      R
     "     County Crim Ct 4          Perez         H      D      48%               T
                                     Lynch         W      R
    1986   233d District             Weaver        W      R
                                     Valderas      H      D      40%
     "     Crim Dist Ct 1            Sturns        B      R
                                     Goldsmith     W      D      43% (51-56%)
     "     Crim Dist Ct 4            Drago         W      D      45% (54-59%)      T
                                     Salvant       B      R
    1988   Crim Dist Ct 2            Dauphinot     W      R
                                     Davis         B      D      40% (42-50%)
    Exogenous elections (Tarrant County)
    
    Year   Court/Office              Candidates    Race   Party White Vote
    1986   Attorney General          Barrera       H      R
                                     Mattox        W      D      39%
     "     Supreme Court Pl 4        Bates         W      R
                                     Gonzalez      H      D      38%
     "     Supreme Court Pl 3        Gonzalez      H      D      46%               T
                                     Howell        W      R
    1988   Dem Pres Primary          Jackson       B             (14-16%)
                                     Dukakis       W
                                     Gore          W
                                     Gephardt      W
                                     Hart          W
                                     Simon         W
    
    
           Unlike other counties, black judges occupied more than 13% of
    
    the district judgeships in Tarrant County for four out of five
    
    years--a     proportion     of   the   bench      that    is   greater      than   the
    
    proportion of black voters in the county's population.
    
           The success of black-preferred candidates was also greater in
    
    Tarrant County than elsewhere.                In those general elections with
    black candidates, the black-preferred, Democratic candidate won
    
    only one out of three general elections--33.3% of the studied
    
    races.     However, in nine general elections with either black or
    
    Hispanic candidates included in Taebel's study, the black-preferred
    
    candidate won four out of nine, or 44.4% of the elections.                     In the
    
    six indigenous district and county court elections studied, the
    
    black-preferred candidate won three out of six, or 50% of the
    
    
                                            127
    elections.   These figures do not indicate the consistent defeat of
    
    black-preferred candidates.
    
         The   district   court,   by   contrast,   found   that   the   black-
    
    preferred candidate was consistently defeated in Tarrant County.
    
    The district court reached this conclusion by ignoring elections in
    
    which Hispanics had participated. This rejection of white-Hispanic
    
    elections was erroneous.       The undisputed facts, as reflected by
    
    Taebel's exhibits, are that a majority of Hispanic voters always
    
    supported the same candidate favored by black voters in every
    
    general election. The district court found that Hispanic and black
    
    voters were cohesive in Midland, Lubbock, and Ector Counties on
    
    similar evidence.      With virtually identical proof in Tarrant
    
    County, the same conclusion must follow, and we hold that it does.
    
         Brischetto included the 1988 Democratic presidential primary
    
    in which Jesse Jackson won virtually all of the black vote in
    
    Tarrant County, but only between 14% and 16% of the white vote.39
    
    Defendants exhibits include a 1986 Democratic primary for district
    
    court in which Ross, the black-preferred candidate, received 57% of
    
    the black vote, but lost the white vote and thus came in third out
    
    of a field of four candidates.       Those exhibits show, however, two
    
    other Democratic primaries--ignored by Brischetto--in which black-
    
    preferred Hispanic candidates prevailed.40
    
         39
          We note that there were five other viable Democratic
    candidates (Dukakis, Gore, Gephardt, Hart, and Simon) in the 1988
    primary, so that Jackson could expect to receive only 16.7% of
    the white vote if that vote were randomly distributed.
         40
          Taebel's exhibits also include a 1982 county court primary
    that the black-preferred candidate, Hicks, seemed to win by seven
    
                                        128
         In   short,    the   evidence    shows   that    the   black-preferred
    
    candidate won 40% of the Democratic primaries and half of the
    
    indigenous judicial elections studied, including the elections with
    
    Hispanic candidates.      The record also shows that black judges have
    
    consistently made up a greater proportion of district judges in
    
    Tarrant County (13.0%) than the proportion of black voters in the
    
    county's population (10.4%), and far more than the proportion of
    
    eligible black attorneys (2.4%).
    
         Furthermore,     the   undisputed     evidence    shows   that   black
    
    candidates won as great a share of white votes as white candidates,
    
    if we control for party affiliation. For instance, Sturns, a black
    
    Republican with a long history of involvement in civil rights and
    
    black community organizations, won 57% of the white vote to beat a
    
    white Democrat.      Salvant, another black Republican, also won a
    
    majority (55%) of the white vote, although he lost his race for a
    
    district judgeship to a white Democrat supported by a combination
    
    of black voters, Hispanic voters, and white Democrats.                Black
    
    Republicans also won the same share (50%) of elections as white
    
    Republicans among the races with black or Hispanic candidates.
    
         Finally, blacks have not been underrepresented on the Tarrant
    
    County bench.   Plaintiffs' exhibit indicates that, for four out of
    
    the five years studied, three of Tarrant County's district judges
    
    were black; for these four years, while blacks made up only 10.4%
    
    of the county's voting age population, more than 13% of the
    
    
    
    votes. This tabulation, however, was based upon elections
    returns prior to a recount under which Hicks apparently lost.
    
                                         129
    relevant office holders were black.            Given this persistent and
    
    substantial   black   presence   on    the   Tarrant    County    bench,     the
    
    consistent    and     substantial     success     of     minority-preferred
    
    candidates, and the absence of any evidence of racial politics in
    
    Tarrant County, we conclude that, even if the plaintiffs had proven
    
    the Gingles prerequisites, the district court clearly erred in
    
    finding illegal vote dilution under the totality of circumstances.
    
    This is so even if we ignore the fact that blacks and Hispanics
    
    voted cohesively in Tarrant County and exclude the races with
    
    Hispanic candidates     from   our    analysis.       Looking    at   just    the
    
    district court general elections involving black candidates, the
    
    black-preferred candidate won 33.3% of the time.           In light of the
    
    evidence just discussed, which excluding Hispanic elections does
    
    not change, reducing the relevant success rate from 44.4% to 33.3%
    
    is insignificant in the totality of the circumstances. There is no
    
    case as a matter of law in Tarrant County.
    
                               D. Travis County
    
         There are 13 district judges elected in Travis County.                  From
    
    1985 to 1988, one of them was Hispanic, or 7.7% of the total.                This
    
    judge was defeated in 1988.      Hispanic lawyers make up 2.7% of the
    
    eligible lawyers in the county.            There are 312,392 voting age
    
    residents in Travis County, which encompasses Austin, Texas.                  Of
    
    them, 44,847 (14.4%) have Spanish surnames. Only 29,067 (9.3%) are
    
    black.   The district court found that a "minimally contiguous,"
    
    predominantly-Hispanic     judicial        district    could     be   created.
    
    Plaintiffs proceed on behalf of Hispanic voters in Travis County.
    
    
                                         130
         Plaintiffs' witnesses stated that the Republican Party is
    
    insignificant in Travis County and the proper testing ground for
    
    candidates is the Democratic primary.      Plaintiffs analyzed three
    
    Democratic primary elections:   one for district court and two for
    
    county court positions.    Defendants analyzed eleven elections:
    
    four exogenous general elections, including one state senate, one
    
    Attorney General, and two Supreme Court races; four exogenous
    
    primary elections, including one state senate, one Supreme Court,
    
    and two appellate court primaries; and finally the same three
    
    indigenous judicial elections studied by plaintiffs.
    
         By Taebel's analysis, the Hispanic-preferred candidate won all
    
    four of the exogenous general elections.    In three of the four, the
    
    Hispanic-preferred candidate also won a majority of the Anglo vote.
    
    In addition, the Hispanic-preferred candidate won two exogenous
    
    primaries, for Supreme Court and state senate. Thus, the Hispanic-
    
    preferred candidate prevailed in two of the four (50%) exogenous
    
    primaries and two of the seven (28.6%) primaries studied overall.
    
    Altogether, the Hispanic-preferred candidate won 54.5% of the
    
    indigenous and exogenous elections analyzed.
    
         The district court found, however, that the three indigenous
    
    primary elections for judicial positions were "closer in nature to
    
    District Court elections" and sufficed to show a pattern of racial
    
    bloc voting sufficient to defeat the Hispanic-preferred candidate.
    
    The district court therefore relied solely on the three elections
    
    analyzed by both Taebel and Brischetto to find that the Hispanic-
    
    preferred candidate lost 100% of the time.
    
    
                                    131
           In   the   one     district   court     and   two    county    court     primary
    
    elections analyzed by the parties, the Hispanic, and Hispanic-
    
    preferred, candidate was defeated by a white majority.                        In one of
    
    these races, however, white voters gave their support to a black
    
    candidate, and thereby defeated both the Hispanic Castro and
    
    Hughes, a white candidate.            Kennedy, the black candidate, had the
    
    overwhelming support of black as well as white voters, so it is
    
    difficult to conclude that Castro was defeated by a white bloc.
    
    Castro and Hughes were defeated by a black-white coalition.                       Thus,
    
    Castro's defeat is not evidence of the white majority's ability
    
    "usually to defeat the minority's preferred candidate."                        Gingles,
    
    478 U.S. at 51, 106 S. Ct. at 2766-67.
    
           The two remaining indigenous primary elections offer a meager
    
    base for liability.         The plaintiffs' case reduces to three facts:
    
    (1) Hispanic-preferred candidates Gallardo and Garcia gained only
    
    33% to 37% of the Anglo vote in 1988 Democratic primaries, and
    
    failed to win nominations for district and county court elections;
    
    (2) only one Hispanic, Gallardo, served as district judge between
    
    1985 and 1998, while no Hispanic now serves; and (3) Hispanics have
    
    suffered from past discrimination in Travis County.                      We conclude
    
    that the district court clearly erred to find illegal vote dilution
    
    on this record.
    
           In finding clear error, we repeat Justice Brennan's admonition
    
    that    "the      usual    predictability       of    the        majority's     success
    
    distinguishes       structural       dilution    from      the    mere   loss    of   an
    
    occasional election."         Gingles, 478 U.S. at 51, 106 S. Ct. at 2767.
    
    
                                             132
    It defies common sense to believe that the loss of two primary
    
    races in one year constitutes usual and predictable defeat by a
    
    white bloc, rather than simply "loss of an occasional election."
    
    However, assuming arguendo that these two elections constitute
    
    sufficient proof of the third Gingles prerequisite, they are too
    
    meager to prove dilution under the totality of circumstances, as a
    
    matter of law.
    
         The plaintiffs contend that Hispanics are underrepresented
    
    among district judges in Travis County.       Hispanics made up 7.7% of
    
    those judges in four out of five recent years, while making up no
    
    more than 2.7% of the lawyers eligible under Texas law to fill
    
    those posts.      Given such a small pool of qualified candidates, it
    
    is not surprising that Hispanics have made up a small proportion of
    
    the Travis County bench.     This result need not be attributed to the
    
    interaction of racial bias with the at-large electoral scheme.           It
    
    is equally likely that the numbers reflect the limited candidate
    
    pool.   Plaintiffs can point to only one district court election
    
    that an Hispanic candidate lost--Gallardo's race in 1988.            Even if
    
    Gallardo had prevailed, the percentage of Hispanic judges would not
    
    have increased, because Gallardo was the one Hispanic sitting
    
    before 1988.   While we do not require that any minority candidates
    
    run for the office in question, the court cannot ignore this
    
    reality while plaintiffs emphasize the absence of minority office
    
    holders.
    
         Far   from    signalling   the    submergence   of   minority   voting
    
    strength by an interaction of electoral process and bias, the
    
    
                                          133
    undisputed facts indicate that Travis County's political system is
    
    open to Hispanic and white candidates alike. Hispanics won half of
    
    the four exogenous primary elections studied, including races for
    
    the state    senate,   appellate     courts,    and    Supreme   Court.     The
    
    Hispanic-preferred candidate also won all four of the general
    
    elections analyzed by the defendants.          The City of Austin contains
    
    most of Travis County's population. As this court noted in Overton
    
    v. City of Austin, 
    871 F.2d 529
    , 540 (5th Cir. 1989):
    
         Austin has repeatedly elected black and Mexican-American
         council members during the past 17 years. . . . [T]he
         winning minority candidates frequently received well over
         fifty percent (50%) of the Anglo vote and were also the
         preferred candidates of the minorities.          Minority
         candidates have routinely been elected to other posts in
         Austin and the surrounding Travis County.
    
    Likewise, the defendants here produced evidence that Hispanic
    
    county commissioners had been elected from predominantly Anglo
    
    districts and won Anglo districts, and that Trevino, a Hispanic
    
    Austin   city   council    member,    had   been      elected    in    city-wide
    
    elections.   Against this background, which includes the success of
    
    state Senator Barrientos and Justice Gonzalez and other Hispanic-
    
    preferred    candidates,    plaintiffs'        minimal    case    is     plainly
    
    insufficient to prove illegal vote dilution.             The district court
    
    clearly erred in finding otherwise.
    
    
    
    
                                         134
                                    E. Bexar County
    
          The voting age population of Bexar County is 672,220.                         Of
    
    these, 46,767 (7.0%) are black, and 278,577 (41.4%) are Hispanic.
    
    Nineteen district judges are elected from Bexar County.                      Of this
    
    number, five (26.3%) are Hispanic.              Undisputed evidence shows that
    
    11.4% of     the    eligible    lawyers    in       Bexar    County   are   Hispanic.
    
    Plaintiffs proceed on behalf of Hispanic voters in Bexar County.
    
          Plaintiffs and defendants analyzed the six district court
    
    general elections with Hispanic candidates between 1982 and 1988.
    
    Defendants also studied a 1980 general election with an Hispanic
    
    candidate, as well as two appellate court and three county court
    
    general elections with either Hispanic or black candidates.                       As in
    
    every other county, Hispanics voted cohesively for the Democratic
    
    candidate while a majority of Anglos supported the Republican
    
    candidate.
    
          In    the    twelve    judicial   elections          studied,   the   Hispanic-
    
    preferred     Democratic      candidate    won       four    times,    33.3%.      The
    
    Republican candidate usually won the general election, and always
    
    won   the   Anglo    vote,    regardless       of    the    candidate.      The   four
    
    Democratic victories were:              (1) the 1980 appellate court race
    
    between Murry and Esquivel; (2) the 1980 district court race
    
    between Prado and Priest; (3) the 1988 district court race between
    
    Bowles and Mireles; and (4) the 1988 county court race between
    
    Patterson and Canales.         Priest, an Anglo Democrat, beat Prado, an
    
    Hispanic Republican, while Esquivel, Mireles, and Canales, all
    
    Hispanic Democrats, defeated their Anglo Republican opponents.
    
    
                                             135
         Partisan affiliation does not explain, however, the voting
    
    patterns in Democratic primary elections.                    By defendants' own
    
    evidence of Democratic primaries in Bexar County, the Hispanic-
    
    preferred candidate lost in nine of fourteen elections, prevailing
    
    only 35.7% of the time, when Anglo Democrats voted for the Hispanic
    
    candidate's    Anglo   opponent.        Anglo    support      for    the    Hispanic
    
    candidate was seldom above 30% and as low as 1%--whereas the
    
    Hispanic vote for the Hispanic-preferred, and always Hispanic,
    
    candidate   was   above    70%    for    five    of   the     nine   unsuccessful
    
    candidates.    Plaintiffs' as well as defendants' experts agreed,
    
    however, that primary elections do not provide a reliable guide
    
    where, as here, both parties are competitive, since they involve
    
    only a fraction of the electorate.
    
         Partisan affiliation accounts for much of the voting patterns
    
    analyzed by the parties.         Most Anglo voters are Republicans; most
    
    Hispanic voters are Democrats.            Anglo voters gave a majority of
    
    their votes to Republicans, and Hispanic voters gave a majority of
    
    their votes to Democrats, even when Hispanic Republican candidates
    
    faced Anglo Democratic opponents.               Prado and Barrera, Hispanic
    
    Republicans, won 70% and 86% of the Anglo vote respectively, when
    
    running   against   Anglo   Democratic         opponents      who    received     the
    
    overwhelming majority of the Hispanic vote.             Any proof of dilution
    
    is meager at best and cannot overcome Texas' substantial linkage
    
    interest as a matter of law.
    
         Because    Hispanic    voters      make    up    more    than    41%    of   the
    
    population, they can elect Democratic candidate with minimal Anglo
    
    
                                            136
    support and have done so repeatedly.                      The minority-preferred
    
    candidate won four out of twelve elections in which an Hispanic
    
    candidate participated--33.3% of the time--with as little as 17% of
    
    the Anglo vote.        Hispanic voters are plainly a potent political
    
    force that can elect candidates by forming coalitions with small
    
    percentages of Anglo voters.            If Bexar County were subdistricted,
    
    Hispanic    voters     might    elect    a     few   more   of    their   preferred
    
    candidates, but only at the expense of losing their influence over
    
    the majority of Bexar County judges.                 The perversity of such a
    
    result is self-evident.
    
         Finally, the evidence that elections were affected by racial
    
    politics preventing the formation of such coalitions is thin.                    It
    
    consisted    solely      of    (1)   evidence        of     low   Hispanic   voter
    
    registration; (2) the usual enhancing factors present in every
    
    Texas county--anti-single shot voting and the majority runoff
    
    requirement; and (3) the fact that Hispanic judges occupy five of
    
    nineteen district judgeships--26.3% of the total--while Hispanics
    
    make up 41.4% of Bexar County's voting age population.                    Again, we
    
    note that Hispanic attorneys make up only 11.4% of the eligible
    
    bar, so that the representation of lawyers on the bench is actually
    
    higher than would be produced by random selection from the pool of
    
    eligible candidates.           This evidence, even if probative in the
    
    abstract, is as meager as the evidence in Harris County.
    
         The evidence compels the conclusion that any dilution was
    
    marginal and cannot as a matter of law survive the weighing of the
    
    totality    of   the   circumstances         when    Texas'   substantial     state
    
    
                                             137
    interest is added to the mix.        If Texas' linkage interest does not
    
    outweigh this evidence of dilution, the state's interest would be
    
    a nullity.    We hold that plaintiffs' proof fails in Bexar County as
    
    a matter of law.
    
                               F. Jefferson County
    
         Eight district judges are elected from Jefferson County.            The
    
    record shows that no black judge was elected there between 1985 and
    
    1989.41      Expert    evidence    establishes     that   fourteen   eligible
    
    attorneys in Jefferson County, 3.1% of the qualified bar, are
    
    black.    The voting age population of Jefferson County is 179,708.
    
    Of this number, 44,283 (24.6%) are black.            Plaintiffs proceed on
    
    behalf of black voters in Jefferson County.
    
         Taebel testified that Jefferson County is the most Democratic
    
    of the targeted counties, with 90% of its voters participating in
    
    the Democratic primary.           Brischetto analyzed eight primary and
    
    runoff    elections,    including    the    1988   Democratic   presidential
    
    primary.   Taebel analyzed six exogenous elections involving either
    
    black or Hispanic candidates:           four primaries and two general
    
    elections.     Unlike their other studies, Brischetto and Taebel
    
    analyzed totally different elections.
    
         In all but one of the primary elections studied by Brischetto,
    
    the black vote was cohesive.         In one case, the candidate with the
    
         41
          Since trial, district judges in Jefferson County have
    filed an amicus brief requesting judicial notice that Davis, an
    African-American, was elected to the county court in 1990. The
    amicus brief also notes that black Democrat Overstreet and
    Hispanic Democrat Morales won a majority of the county's votes in
    their respective 1990 races for Court of Criminal Appeals and
    Attorney General.
    
                                          138
    greatest black support received a high plurality (47%) of the black
    
    vote.       A majority of white voters always opposed the black-
    
    preferred candidate in the primary elections.
    
          Whether       the    black-preferred     candidate      was   consistently
    
    defeated by a white bloc is a close question.                 The answer varies
    
    with the elections counted and how they are counted.                    Defendants
    
    point to four primaries.           In two elections, black candidate Price
    
    won the nomination for state representative.                 In two others, for
    
    Supreme     Court    and   Court    of   Criminal    Appeals,   black-preferred
    
    Hispanic candidates Gonzalez and Martinez participated.                  Gonzalez
    
    won   the    Jefferson     County    Democratic      vote;   Martinez    did   not.
    
    Defendants also rely on two exogenous general elections, for
    
    Supreme Court and Attorney General, involving Hispanic candidates
    
    Gonzalez, a Democrat, and Barrera, a Republican.                In both general
    
    elections, the black-preferred candidate--Gonzalez and Mattox,
    
    Barrera's Democratic opponent--prevailed.
    
          Plaintiffs offer five indigenous primaries, ranging back to
    
    1972, in which black candidates participated--four for justice of
    
    the peace and one for county court.                  They also submitted the
    
    exogenous 1988 presidential primary.                Among these six races, the
    
    black-preferred candidate prevailed only once, when Jackson won a
    
    plurality in the 1988 presidential primary.
    
          The total of eight elections analyzed by Brischetto includes
    
    both the initial primaries and subsequent runoffs for justice of
    
    the peace in 1972 and 1974.              In the initial primaries, black-
    
    preferred candidate Freeman failed to win the highest plurality.
    
    
                                             139
    Plaintiffs would count these results as "defeats" separate from
    
    Freeman's subsequent defeat in the runoffs.            Freeman won, however,
    
    the second highest number of votes in the initial primaries and
    
    thus made those runoffs.        We do not consider Freeman's showings in
    
    the initial primaries to be separate from the runoff elections.
    
    Thus, the record reflects four justice of the peace elections, not
    
    six.
    
           Unlike Tarrant County, defendants' evidence does not include
    
    estimates of how Hispanic residents in Jefferson County voted.
    
    There are no facts showing that Hispanic and black voters were
    
    politically cohesive in Jefferson County. Anglo-Hispanic elections
    
    are entitled to less weight than white-black races in determining
    
    the success of black-preferred candidates.
    
           Nonetheless,       confining   our    consideration    to   the   analyzed
    
    elections in which black candidates participated, we must conclude
    
    that the plaintiffs failed to prove a substantial case of dilution.
    
    The plaintiffs and defendants together produced evidence of eight
    
    primary elections in which a black who was also the black-preferred
    
    candidate participated.         The black-preferred candidate won three
    
    primaries out of these eight elections--a success rate of 37.5%.
    
    All    three   of   the    black-preferred      candidates'    victories    were
    
    exogenous:     Jackson won the 1988 presidential primary, while Price
    
    won two Democratic primaries for state representative.
    
           As in every county but Dallas, the district court found no
    
    sign of racial appeals.          Likewise, there is no finding of non-
    
    responsiveness on the part of elected officials to the concerns of
    
    
                                           140
    black   constituents.          Enhancing      factors     as   well      as     past
    
    discrimination were shown, but--as elsewhere--were not brought home
    
    to this case.     The minority-preferred candidate prevailed in every
    
    general election submitted by the parties.
    
         The plaintiffs' case was further weakened by their use of
    
    dated statistics:         three of the five indigenous elections they
    
    submitted were held in 1972, 1974, and 1978.            There is no evidence
    
    of a practical and searching appraisal of contemporary conditions
    
    in Jefferson County.       See Nipper v. Chiles, 
    795 F. Supp. 1525
    , 1540
    
    (M.D.   Fla.    1992)    (noting   limited    probative     force   of    "stale"
    
    elections).
    
         We have here no more than marginal proof of illegal vote
    
    dilution.      The evidence is inadequate to prove that black voters
    
    were denied an equal opportunity to participate in the political
    
    process.    It is too insubstantial to survive a weighing of the
    
    totality of circumstances when the state's substantial linkage
    
    interest is added to the mix.          As a matter of law, the state's
    
    interest outweighs this case.
    
                                  G. Midland County
    
         Midland County contains 82,636 voting age residents, of whom
    
    6,893 (11.9%) have Spanish surnames and 4,484 (7.8%) are black.
    
    There are      three    district   judges    in   Midland   County;      none    are
    
    Hispanic or black.       Undisputed evidence shows that seven Hispanic
    
    and three black attorneys are eligible for district judgeships.
    
    They comprise 3.2% of the lawyers eligible to run for that office.
    
    
    
    
                                          141
    Plaintiffs proceed on behalf of both Hispanic and black voters in
    
    Midland County.
    
         Plaintiffs analyzed three general elections in Midland County.
    
    Two of them were exogenous races for the Texas Supreme Court.              The
    
    third was an indigenous race involving a black candidate for a
    
    Justice of   the   Peace   position    in   1986.        Defendants   likewise
    
    examined Gonzalez's bids for the Supreme Court in 1986 and 1988, as
    
    well as four primary elections in which either a black or Hispanic
    
    candidate participated.       Defendants also analyzed the Mattox-
    
    Barrera race for Texas Attorney General.
    
         Both parties' analyses show that the majority of Anglo voters
    
    always   opposed   the   candidate    preferred     by   the   geographically
    
    compact and cohesive combined minority population in the general
    
    elections. The minority-preferred candidate was always defeated by
    
    this Anglo majority.
    
         We conclude that the district court clearly erred in finding
    
    dilution. The undisputed facts indicate that partisan affiliation,
    
    not race, caused the defeat of the minority-preferred candidate.
    
    The majority of minority voters always cast their votes in favor of
    
    the Democratic candidate.      The Anglo voters cast the majority of
    
    their votes for the Republican, regardless of the race of the
    
    candidates. Indeed, Barrera, the Hispanic Republican candidate for
    
    Attorney General, won 76% of the Anglo vote when running against
    
    Mattox, a white Democrat--the second highest vote received by any
    
    of the Republicans in the analyzed general elections.                  Because
    
    Republican voters outnumbered Democratic voters, the minority-
    
    
                                         142
    preferred Democratic candidate consistently lost.                  The plaintiffs
    
    have not established the third prerequisite of Gingles.
    
         Even if plaintiffs could meet the Gingles threshold, the
    
    totality of circumstances does not add up to dilution.                          The
    
    plaintiffs can show only a general history of discrimination and a
    
    lack of minority judges.           These facts prove little.           In Midland
    
    County, only one minority lawyer has run for local office (county
    
    attorney), and none has ever run for a district judgeship.                    These
    
    low numbers reflect the minuscule number of eligible minority
    
    candidates.     According to the evidence, only ten minority lawyers
    
    are eligible to run for the district court seat.
    
         Because the undisputed facts show that partisan affiliation
    
    uninfected     by     racial     politics        caused   the   minority-preferred
    
    candidates' defeat, we hold that the district court erred in
    
    finding dilution.
    
                                     H. Lubbock County
    
         Lubbock        County     residents     vote     for   five   district   court
    
    positions.     None of these five judges are black or Hispanic.                The
    
    surveys introduced by the defendants indicate that 23 Hispanic
    
    lawyers in Lubbock County are eligible to run for the district
    
    court.   The surveys show that no black residing in the county is
    
    eligible to do so.       The total voting age population is 150,714.             Of
    
    this number, 22,934 (15.2%) have Spanish surnames and 9,509 (6.4%)
    
    are black.     Plaintiffs proceed on behalf of the combined Hispanic
    
    and black voters in Lubbock County.
    
    
    
    
                                               143
          None of the parties analyzed indigenous elections in Lubbock
    
    County; no minority has ever run for a position on the district
    
    court.       Plaintiffs   analyzed        two   exogenous   primaries     and    two
    
    exogenous general elections, for the Supreme Court and for the
    
    Court of Criminal Appeals. Defendants studied the same two general
    
    elections,     adding   an    exogenous     general     election    for   Attorney
    
    General.
    
          Plaintiffs' and defendants' evidence shows that blacks and
    
    Hispanics tend to vote cohesively.              There is also no dispute that
    
    the majority of Anglo voters did not support the candidate favored
    
    by the minority voters in Lubbock County in any of the elections
    
    studied.
    
          As in Dallas and Midland Counties, however, the undisputed
    
    facts show that, in general elections, partisan affiliation and not
    
    racial politics caused the consistent defeat of the minority-
    
    preferred, always Democratic, candidates.               The data indicate that,
    
    in   these    counties,      over   60%    of   white   voters     supported    the
    
    Republican candidate, while most minority voters supported the
    
    Democratic candidate.          As a result of this voting pattern, the
    
    Democratic and minority-preferred candidate consistently lost to a
    
    Republican opponent, regardless of the ethnicity of the candidates.
    
          In the 1986 and 1988 races for the Supreme Court, Hispanic
    
    Democrat Gonzalez lost Lubbock County's vote to white Republican
    
    opponents.     However, in the contest for Attorney General, Barrera,
    
    an Hispanic Republican, defeated Mattox, a white Democrat.                      Like
    
    Gonzalez's Republican opponents, Barrera took a majority of the
    
    
                                              144
    Anglo votes, while his white opponent took a majority of the
    
    minority votes.       In short, as in Midland County, the evidence
    
    establishes that voting patterns in Lubbock County were unaffected
    
    by the race of the candidates.           Rather, they resulted from party
    
    loyalty.     Therefore, plaintiffs have not met the third Gingles
    
    factor.
    
         The plaintiffs point to two exogenous Democratic primary
    
    elections    for    state   appellate     and    Supreme   Court    positions.42
    
    However, the minority-preferred candidate won a majority of the
    
    votes cast in one of these two elections.             Although Martinez was
    
    defeated, Gonzalez won a majority of the votes cast in the Lubbock
    
    County Democratic primary for the Supreme Court.                These primary
    
    races, therefore, do not indicate that the minority-preferred
    
    candidate was consistently defeated within the meaning of Gingles,
    
    and they cannot establish dilution.
    
                                   I. Ector County
    
         There are four district judges in Ector County.                All of them
    
    are Anglo.     There are fewer than 200 lawyers in the county.
    
    Surveys estimate that no more than six of them are black or
    
    Hispanic and eligible to become district judges.                Ector County,
    
    whose principal city is Odessa, has 79,516 voting age residents.
    
    14,147    (17.8%)    are    Hispanic,    while    3,255    (4.1%)   are   black.
    
    
         42
          As we stated in the discussion of Jefferson County, supra
    Part VI.F, we hold that the runoff election subsequent to a
    primary election is a single election for the purposes of
    computing the success or failure of the minority-preferred
    candidate. The victor of the runoff election is the victor of
    the combined primary/runoff race.
    
                                            145
    Plaintiffs proceed on behalf of the combined minority population in
    
    Ector County.
    
         The parties relied on the same exogenous races in Ector County
    
    that they produced in Lubbock County.                The plaintiffs examined
    
    primary   and     general    elections     for    appellate    courts    involving
    
    Martinez and Gonzalez.           The defendants added Barrera's bid for
    
    Attorney General.
    
         The undisputed facts indicate that the minority-preferred,
    
    Democratic      candidates      were   consistently      defeated      in   general
    
    elections    by    an   Anglo    majority       voting   for   their    Republican
    
    opponents. In the Democratic primaries, Martinez won a majority of
    
    the vote.         The   minority-preferred       candidate     won   half   of   the
    
    Democratic      primary     races   and    therefore     was   not    consistently
    
    defeated in the primaries.
    
         As in Lubbock County on virtually identical facts, we find
    
    that the district court clearly erred in finding racial vote
    
    dilution.    The undisputed facts indicate that partisan affiliation
    
    controlled the outcomes of the general elections.                    As in Lubbock
    
    County, while Hispanic Democratic candidates lost the Anglo vote,
    
    Barrera, a Hispanic Republican, won a majority of the Anglo vote
    
    running against his white Democratic opponent Mattox.
    
         While partisan affiliation would not explain polarization in
    
    the primaries, the facts indicate that the minority-preferred
    
    candidate was not consistently defeated by racial polarization in
    
    the primary elections.          Rather, Martinez won one of the two races
    
    
    
    
                                              146
    analyzed. Plaintiffs have failed to meet the third prerequisite of
    
    Gingles.
    
                                    VII. Conclusion
    
          We would expect over time that the Texas judiciary would
    
    reflect the black and Hispanic population eligible to serve--if
    
    judges, for example, were drawn from a pool of all persons eligible
    
    to serve.      In truth, minority lawyers fare better than we would
    
    expect from a random process.             We do not suggest that because they
    
    fare better than they would in a system of random selection, voting
    
    rights of blacks and Hispanics could not have been illegally
    
    diluted.      Rather, the observation is relevant because it brings
    
    perspective to this battle by drawing borders around its asserted
    
    implications and deflating overdrawn invocations of large wrongs of
    
    history, unremedied and unanswered.
    
          There is no disparity between the number of minority judges
    
    and the number of minorities eligible to serve.                 Rather, the only
    
    disparity     is     between   the   minority      population      and    minorities
    
    eligible to serve as judges.               Much can be said about that--of
    
    deficits in education and other social shortchangings of black and
    
    Hispanic persons.         To those who push judicial entry onto this
    
    larger field we must answer that our task is more narrowly drawn--
    
    to   decide    if    voting    rights     have   been    denied.     We    lack   the
    
    authority, even if we had the wisdom, to do more.                         The Voting
    
    Rights Act is not an unbridled license--to explore for example the
    
    persistent     low    enrollment     of    black   law   students.        One   small
    
    example.      This year the law school at Louisiana State University
    
    
                                              147
    graduated the largest number of black students in its history.
    
    This followed intensive recruiting efforts including the inducement
    
    of   a free   education--with     stipends.      Of   the   several   hundred
    
    students graduated, ten were black. This sad story can be repeated
    
    at school after school.      We are told that this is not relevant.          We
    
    think that it is.
    
           We decline to reach for social questions beyond the Voting
    
    Rights Act by recasting its meaning and purpose.             Ultimately, we
    
    cannot escape the steely truth that we cannot arrive at sound
    
    answers if we fail to ask the right questions.         We think that today
    
    we have asked the correct questions and answered them as best we
    
    can.
    
           REVERSED
    
    JONES, Circuit Judge, with whom JOLLY, SMITH, BARKSDALE and DeMOSS,
    Circuit Judges, join in concurring in majority opinion:
    
                Judge Higginbotham's excellent opinion resolves all but
    
    one of the issues in dispute between the parties, and I am pleased
    
    to concur in it as far as it goes.         The single issue that I believe
    
    should have been discussed is whether different racial or language
    
    minority groups may be permitted to aggregate their strength in
    
    order to pursue a Section 2 vote dilution claim.            Permitting such
    
    a black/Hispanic coalition claim was vital to plaintiffs' success
    
    in three counties in this case.             The issue was preserved for
    
    appeal, albeit as an aside to the all-pervasive issues;43 it
    
    
          43
                Although the en banc majority opinion adopts the minority
    coalition theory for certain aspects of its analysis, those points are not
    essential to its result and simply demonstrate that the plaintiffs' own
    arguments are self-contradictory.
    
                                         148
    furnishes an alternate ground of decision in the three counties.
    
    I believe the en banc court should lay to rest the minority
    
    coalition theory of vote dilution claims.44
    
               Congress did not authorize the pursuit of Section 2 vote
    
    dilution claims by coalitions of distinct ethnic and language
    
    minorities.    What Congress did not legislate, this court cannot
    
    engraft onto the statute.      Except in two eccentric decisions from
    
    Texas, the coalition theory has found no factual support anywhere
    
    else in the federal courts.       The crucial problem inherent in the
    
    minority coalition theory, articulated by Judge Higginbotham and
    
    realized in this case, is that it transforms the Voting Rights Act
    
    from a statute that levels the playing field for all races to one
    
    that forcibly     advances   contrived    interest-group    coalitions    of
    
    racial or ethnic minorities.
    
               According to customary legal analysis, there should be no
    
    need to discuss the minority coalition theory of vote dilution
    
    because the text of the Voting Rights Act does not support it.           The
    
    Act originally protected only black voters.        When it was amended in
    
    1975 to reach language minorities, the Act then identified four new
    
    covered groups: persons of Spanish heritage; all American Indians;
    
    "Asian Americans" including Chinese, Japanese, Korean and Filipino
    
    Americans; and Alaskan natives.        42 U.S.C. § 1973(b)(f)(1).       That
    
    
          44
                The Supreme Court has acknowledged but not addressed the minority
    coalition theory. Growe v. Emison, ___ U.S. ___, 
    113 S. Ct. 1075
    , 1085
    (1993). Judge Higginbotham has twice advocated en banc consideration of this
    issue. See League of United Latin American Citizens v. Midland I.S.D., 
    812 F.2d 1494
    , 1503-09 (Higginbotham, J. dissenting), aff'd in part on other
    grounds, 
    829 F.2d 564
     (5th Cir. 1987) (en banc); Campos v. City of Baytown,
    Texas, 
    849 F.2d 943
     (5th Cir. 1988) (Higginbotham, J., dissenting from denial
    of rehearing en banc). In neither case, for procedural reasons, did the court
    acquiesce. I endorse Judge Higginbotham's earlier writings.
    
                                        149
    each of these groups was separately identified indicates that
    
    Congress considered members of each group and the group itself to
    
    possess   homogeneous    characteristics.      By   negative   inference,
    
    Congress did not envision that each defined group might overlap
    
    with any of the others or with blacks.      See Hunter, The 1975 Voting
    
    Rights Act and Language Minorities, 25 Cath. U.L. Rev. 250, 254-57
    
    (1986); Katherine I. Butler and Richard Murray, Minority Vote
    
    Dilution Suits and the Problem of Two Minority Groups: Can a
    
    "Rainbow Coalition" Claim the Protection of the Voting Rights Act?,
    
    21 Pac. L.J. 619, 624-25 (1990) (hereafter, "Butler and Murray").
    
                The 1982 amendment to Section 2, which codified the
    
    "results" test, likewise offers no textual support for a minority
    
    aggregation theory.     It speaks only of a "class of citizens" and "a
    
    protected class."       42 U.S.C. § 1973(b).        Had Congress chosen
    
    explicitly to protect minority coalitions it could have done so by
    
    defining the "results" test in terms of protected classes of
    
    citizens.   It did not.
    
                Two arguments have been made for extending the Voting
    
    Rights Act to minority coalitions.          First, one appellate panel
    
    stated, without citation or further reasoning, that the Act does
    
    not prohibit such claims.      Campos v. City of Baytown, Tex., 
    840 F.2d 1240
    , 1244 (5th Cir.), reh'g denied, 
    849 F.2d 943
     (5th Cir.
    
    1988), cert. denied, 
    492 U.S. 905
    , 
    109 S. Ct. 3213
     (1989).        The Act
    
    does not prohibit claims by minorities from the Indian subcontinent
    
    either.   But as Judge Higginbotham pointed out, this is answering
    
    the wrong question.       The proper question is whether Congress
    
    
                                      150
    intended    to   protect   coalitions.       Campos,    849   F.2d   at   945
    
    (Higginbotham, J. dissenting from denial of reh. en banc).                "The
    
    fact that both groups are protected does not justify the assumption
    
    that a new group composed of both minorities is itself a protected
    
    group," Butler and Murray, supra, at 647.              Judge Higginbotham
    
    explained the distinction:
    
                In deciding to protect language minorities,
                Congress recognized that language and racial
                minorities share many disabilities.         To
                assume, however, that a group composed of both
                minorities is itself a protected minority is
                an unwarranted extension of congressional
                intent. A group tied by overlapping political
                agendas but not tied by the same statutory
                disability is no more than a political
                alliance or coalition.
    
    840 F.2d at 945.
    
                The second argument advanced by a court that permitted a
    
    minority coalition claim under Section 2 begs the question of
    
    statutory construction altogether.           This position asserts that
    
    because a minority coalition may meet the three-prong Gingles test,
    
    including    the   criterion    of   the    minority    group's    political
    
    cohesiveness, it may gain relief from vote dilution.45                    This
    
    argument was successful in a Texas case in which, paradoxically,
    
    the court also acknowledged that Gingles           says nothing about the
    
    possibility of granting relief to minority group coalitions.46
    
    
    
         45
                A general citation to Thornburg v. Gingles, the Supreme Court's
    decision on vote dilution, is superfluous at this point in our court's
    writing.
         46
                Butler and Murray, supra at 642, observe that before the Midland
    case, blacks and Hispanics had pursued Voting Rights Act cases together, but
    they had sought separate districts or relief for each minority.
    
                                         151
    Previously, it had rejected a plan offered by the plaintiffs that
    
    contained a mixed black/Hispanic district, because it found the
    
    interests of these two minorities too divergent to justify their
    
    submergence in one district.        Nevertheless, it predicated a new,
    
    inexplicably    opposite      finding      on   Gingles'    second   prong   and
    
    determined     that   the   coalition      of   blacks     and   Hispanics   was
    
    politically cohesive.       League of United Latin American Citizens v.
    
    Midland Indep. Sch. Dist., 
    648 F. Supp. 596
    , 606 (W.D. Tex. 1986).47
    
    Again, Judge Higginbotham noted the court's error in purporting to
    
    rely on Gingles:
    
               [Gingles'] three-step inquiry assumes a group
               unified by race or national origin and asks if
               it is cohesive in its voting. If a minority
               group lacked common race or ethnicity,
               cohesion must rely primarily on shared values,
               socioeconomic    factors,     and    coalition
               formation,    making    the    group    almost
               indistinguishable from political minorities as
               opposed to racial minorities.
    
    Midland, 812 F.2d at 1504.        Reliance on Gingles is false because
    
    Gingles does not address the meaning of or solution to vote
    
    dilution of a minority coalition.
    
    
    
    
         47
               The court's finding on political cohesiveness was supported only
    by this:
               . . . Blacks and Hispanics worked together and formed
               coalitions when their goals were compatible.
               Additionally, the bringing of this lawsuit provides
               evidence that blacks and Hispanics have common
               interests that induce the formation of coalitions.
               Id.
                Butler and Murray term "shocking" the court's reliance only on the
    facts that suit has been brought jointly and that the minority groups are
    willing to work together to accomplish "compatible" goals. Butler and Murray,
    supra at 667.
    
    
                                         152
                A   principal     reason    for    distinguishing          homogeneous,
    
    explicitly defined minority groups from minority coalitions lies in
    
    Section 2 itself.      One may be uncertain what Congress might think
    
    about   permitting     minority      coalitions    to    assert    vote     dilution
    
    claims, but     Congress     clearly    walked    a     fine   line    in   amending
    
    Section 2 to codify the results test for vote dilution claims while
    
    expressly prohibiting proportional representation for minority
    
    groups.    The results test of vote dilution inherently recognizes
    
    that a minority group will sometimes fail to merit a single member
    
    district solely because they lack the population to "constitute a
    
    majority in a single member district."            Gingles, ___ U .S. ___, 106
    
    S.   Ct.   at   2766   and   n.17.      Permitting       Section      2   claims   by
    
    opportunistic minority coalitions, however, artificially escapes
    
    this hurdle.     As a result, the remedy afforded to the coalition may
    
    easily cross the line from protecting minorities against racial
    
    discrimination to the prohibited, and possibly unconstitutional,
    
    goal of mandating proportional representation.48
    
                The tension in Section 2 between the results test and the
    
    prohibition      of     proportional         representation           fundamentally
    
    
          48
                The Midland case illustrates this point.       The district court
    approved a "remedy"
                in the form of the best available single member
                district to each of the two groups, even though
                neither could satisfy [Gingles'] requirements of size
                and compactness. . . . Ironically, Section 2, which
                specifically disavows a right to proportional
                representation, was used to provide greater than
                proportional representation for two groups, neither of
                whom would have qualified for a seat had proportional
                representation actually been the law.
    Butler and Murray, supra, 667-68 (emphasis added).
    
                                           153
    distinguishes this case from Chisom v. Roemer, ___ U.S. ___, 111 S.
    
    Ct. 2354 (1991), in which the Supreme Court concluded that judicial
    
    elections are covered by Section 2.          Stating that certain types of
    
    elections are within Section 2 is a definitional exercise.                   In
    
    Chisom, the Court held that judicial elections, having once been
    
    covered by the Act, remained covered following the 1982 amendment
    
    to Section 2.      But it is a remedial exercise to decide whether to
    
    apply the results test to a minority coalition united not by race
    
    or language but only by their desire to advance a particular
    
    agenda.    Enlarging the permissible boundaries of Section 2 relief
    
    to encompass minority coalitions thus runs headlong into the
    
    Section 2 prohibition of proportional representation, creating a
    
    conflict that the Supreme Court did not face in Chisom.
    
                   If Section 2 is held to permit relief for minority
    
    coalitions, the complications for Voting Rights Act litigation in
    
    our increasingly multi-ethnic society will be enormous.                   Those
    
    complications alone imply that Congress rather than the courts
    
    should first address any such innovation. Certain questions should
    
    give pause even to the advocates of minority coalitions.              As Judge
    
    Higginbotham observed, the availability of a minority coalition
    
    theory could be a defense against an attack on an at-large system.
    
    Campos    v.    City   of   Baytown,   Texas,   supra   849   F.2d   at   945-46
    
    (Higginbotham, J.).         Where the combined groups comprise more than
    
    half of a voting population in a plausible single-member district,
    
    their "cohesion" could be used as a device to "pack" the minorities
    
    together. Further, on what basis would a court apportion districts
    
    
                                           154
    in the wake of a successful minority coalition Section 2 suit?                   If
    
    each minority is given an opportunity to prevail in a district, is
    
    this not an admission that the coalition is ephemeral and not
    
    really "cohesive" as Gingles requires? Is it possible that greater
    
    racial    animosity     will   develop     if   a   court     permits       minority
    
    aggregation on too insubstantial a basis and effectively submerges
    
    members of one group in a district controlled by the other group?
    
    Courts should be loath to embark upon coalition redistricting with
    
    no expressed guidance from a statute that reflects the will of the
    
    American people.
    
                If,   notwithstanding        the    absence      of   Congressional
    
    authorization,     minority     coalitions      are   permitted        to     assert
    
    aggregate Section 2 vote dilution claims, relief must be predicated
    
    on more evidence of the group's homogeneity than the maintenance of
    
    a joint lawsuit.      See note 5, supra.        This is so for two reasons.
    
    As noted earlier, if a fortuitous coalition of minorities can gain
    
    Section 2 relief on tenuous proof of cohesion, the courts will have
    
    effectively undone Congress's explicit disapproval of proportional
    
    representation.       The less cohesive the groups truly are, the more
    
    likely relief has been fashioned only because of the groups' joint
    
    minority status.      Second, there is risk to members of the minority
    
    groups themselves if their electoral fates are joined even though
    
    they do not share fundamentally similar social and political goals.
    
    To   be   sure,   the    problem   of    determining        minority    political
    
    cohesiveness under Gingles may be difficult even when the claims of
    
    
    
    
                                         155
    one minority group are at issue.49              But it should be self-evident
    
    that the problem is compounded when different minority groups, with
    
    radically       different        cultural       and        language     backgrounds,
    
    socioeconomic characteristics and experiences of discrimination
    
    seek Section 2 coalition status.                Forcibly merging fundamentally
    
    different       groups     for   the      purpose     of    providing       "minority"
    
    representation could be a cruel hoax upon those who are not
    
    cohesive with self-styled minority spokesmen.
    
                The difficulty of proving vote dilution on behalf of
    
    coalitions of minorities has been vividly realized in practice.
    
    Except in the Midland and Campos cases, there appear to be no
    
    reported decisions in which sufficient proof of the minority
    
    coalition theory was adduced to justify Section 2 relief.                           The
    
    theory    has    been    litigated     all   over     the    country,   but    it   has
    
    repeatedly      been     rejected    on   factual     grounds.        See    Concerned
    
    Citizens of Hardee County v. Hardee County Bd. of Commissioners,
    
    
    906 F.2d 524
     (11th Cir. 1990); Latino Political Action Committee v.
    
    City of Boston, 
    609 F. Supp. 739
    , 744 (D.C. Mass. 1985) aff'd, 
    784 F.2d 409
     (1st Cir. 1986); Butts v. City of New York, 
    614 F. Supp. 1527
    , 1546 (D.C. N.Y. 1985), reversed on other grounds, 
    779 F.2d 141
     (2d Cir. 1985), cert. denied, 
    478 U.S. 1021
    , 
    106 S. Ct. 3335
    ;
    
    Badillo v. City of Stockton, 
    956 F.2d 884
    , 886 (9th Cir. 1992);
    
    Romero v. City of Pomona, 
    665 F. Supp. 853
    , 859 (D.C. Cal. 1987),
    
    aff'd, 
    883 F.2d 1418
     (9th Cir. 1989).                      See also Nixon v. Kent
    
    
         49
                See, e.g., Butler and Murray, 651-57, 674-87, describing the
    diverse socioeconomic and ethnic qualities among our Hispanic population.
    
                                              156
    County, Michigan, 
    790 F. Supp. 738
     (W.D. Mich. 1992) in which Judge
    
    Enslen,   author    of   a   well-known    constitutional    law    treatise,
    
    thoughtfully concluded that the only proper test for minority
    
    aggregation is whether two minority groups "are indeed one."              790
    
    F. Supp at 743.50    Even in Texas, before this case, the success of
    
    the Midland and Campos plaintiffs was unique.          See Overton v. City
    
    of Austin, unpublished, 1987, aff'd, 
    871 F.2d 529
     (5th Cir. 1989)
    
    (rejecting black/Hispanic coalition case in part because evidence
    
    showed that each group voted for candidates of their own race but
    
    not for candidates of the other race.)
    
               What this string of defeats suggests, if not the utter
    
    bankruptcy of Section 2 minority coalition claims, is at least
    
    their factual complexity. Once the courts plunge into the business
    
    of apportioning representation among racial or ethnic coalitions,
    
    a host of difficult and potentially divisive social questions rear
    
    their heads.     A finding of political cohesiveness should require
    
    such coalitions to prove, at the very minimum, not only that they
    
    
    
         50
                The court in Nixon looked to the following factors, gleaned from
    the definition of minority group:
    
               (1)   Whether the members have similar socioeconomic
               backgrounds resulting in common social disabilities
               and exclusion;
               (2)   whether members have similar attitudes toward
               significant issues affecting the challenged entity;
               (3)   whether members have consistently voted for the
               same candidates; and
               (4)   whether the minorities consider themselves "one"
               even in situations in which they would benefit
               independently.
    Nixon at 
    790 F. Supp. 744
    .
    
                                         157
    usually vote for the preferred candidates of their own ethnic group
    
    but also for those of the coalition group -- otherwise, the groups
    
    cannot be politically cohesive.         Not only do most of the above-
    
    cited decisions case doubt on such a proposition, but considerable
    
    sociological literature also demonstrates "social distance" between
    
    minority groups that seems inconsistent with widespread coalition
    
    minority political cohesion.51
    
               The second panel opinion in this Lulac case concedes that
    
               the procedure of allowing Blacks and Hispanics
               to proceed as a "coalition" minority group in
               a Section 2 claim is fraught with risks.
    
    Lulac II, 
    986 F.2d 785
    , n.43.       Ironically, while citing the Butler
    
    and Murray article to which I have referred, the panel makes no use
    
    of its cautionary data or its conclusion:
    
                    Proponents of coalition dilution suits
               argue that minority groups are natural allies
               because of their shared exclusion from the
               dominant society, and their similar lower
               socioeconomic    status,   which,    proponents
               maintain, is a product of past discrimination.
               Despite the simplistic logic of this position,
               it does not comport with the reality revealed
               by social science studies.       Those studies
               suggest just the opposite.       The rarity of
               documented    political    alliances    between
               minority groups is the natural consequence of
               differences    in    their     attitudes    and
               perceptions. Studies indicate that minorities
               in fact identify more closely with the
               dominant group than with other minorities.
               Moreover, perceptions of discrimination vary
               widely among groups. Blacks, for example, are
    
    
          51
                See, e.g., Dyer, Dedlitz and Worochel, Social Distance Among
    Racial and Ethnic Groups in Texas, Some Demographic Correlates, 70 Social
    Science Quarterly 607, 613-14 (1989); Donald L. Horowitz, "Conflict and
    Accommodation: Mexican Americans Need Cosmopolis" in Mexican Americans in
    Comparative Perspective 58, 84-92 (1985) See also Butler and Murray, supra
    n.7.
    
                                         158
              much more likely than Mexican Americans to
              perceive   themselves   to   be  victims   of
              discrimination. Still other studies suggest
              that   the  underlying   causes  of   lowered
              socioeconomic status differ among minority
              groups. Different root causes of poverty are
              likely to lead to different, possibly even
              conflicting, demands on the government.
    
    Butler and Murray, supra, 688-89.     Butler and Murray contend that
    
    because of these differences, minority coalitions "very seldom"
    
    ought to be able to prove vote dilution under Section 2.     Butler
    
    and Murray, supra at 687.   The short answer to plaintiffs' joint
    
    Section 2 claims in Lubbock, Ector and Midland Counties is that
    
    they did not meet their burden of proof that blacks and Hispanics
    
    are sufficiently like a single minority group to entitle the
    
    coalition to one judicial district in each county.
    
                                Conclusion
    
              The Congressional compromise that resulted in the passage
    
    of Section 2 left the field of voting rights wide open to courts in
    
    many respects. Congress did not, however, contemplate or authorize
    
    relief for coalitions of racial and language minority groups.    For
    
    the courts to provide such relief, in my view, judicially amends
    
    the Act and flies in the face of the express prohibition of
    
    proportional representation in Section 2.    At the very least, only
    
    under very convincing proof of a minority coalition's sociological
    
    similarities and goals as well as its political cohesion can such
    
    a claim be made.   In this case, plaintiffs have not carried their
    
    burden of proof concerning Lubbock, Midland or Ector Counties. Our
    
    court's previous decisions in Midland and Campos must be overruled.
    
    
    
                                    159
    With these additional observations, I concur in the majority
    
    opinion.
    
    
    
    POLITZ, Chief Judge, with whom JOHNSON, KING and WIENER, Circuit
    
    Judges, join, dissenting:
    
    
    
         I respectfully dissent.     The parties have moved for remand of
    
    this action to the district court for consideration of a proposed
    
    settlement.      Remarkably, the majority denies that motion despite
    
    the fact that our jurisprudence long has favored settlement as the
    
    preferred mode of dispute resolution,52 permitting avoidance of
    
    unnecessary monetary and emotional costs and the risks attendant in
    
    all litigation.53     We have long recognized that the parties to an
    
    action "have a right to compromise their dispute on mutually
    
    agreeable terms."54    There is nothing about this action against the
    
         
    52 Will. v
    . First Nat'l Bank, 
    216 U.S. 582
    , 595 (1910);
    see also, e.g., Carson v. American Brands, Inc., 
    450 U.S. 79
    , 86-
    88 (1981) (potential loss by parties of opportunity to settle
    constitutes "serious, perhaps irreparable, consequence" of
    district court's refusal to enter consent decree making such
    ruling immediately appealable); Bass v. Phoenix Seadrill/78,
    Ltd., 
    749 F.2d 1154
     (5th Cir. 1985); In re Chicken Antitrust
    Litigation, 
    669 F.2d 228
     (5th Cir. Unit B March 1982); United
    States v. City of Alexandria, 
    614 F.2d 1358
     (5th Cir. 1980); cf.
    Fed. R. Civ. P. 68 (recipient of settlement offer must pay costs
    incurred after receipt where judgment ultimately obtained is not
    as good as offer); Fed. R. Evid. 408 (evidence of good faith
    settlement negotiation inadmissible as proof of liability or
    claim value at trial).
         53
          Local No. 93, Int'l Ass'n of Firefighters v. City of
    Cleveland, 
    478 U.S. 501
    , 528-29 (1986); United States v. City of
    Miami, 
    664 F.2d 435
    , 439 (5th Cir. 1981) (citing United States v.
    Armour & Co., 
    402 U.S. 673
     (1971)) (en banc) (plurality opinion).
         54
              City of Miami, 664 F.2d at 440.
    
                                      160
    State     of    Texas    that    would    warrant   abrogation     of   that   well-
    
    established rubric.55           The Governor and Attorney General, joined by
    
    a majority of both houses of the Texas Legislature, have made
    
    manifest their desire to compromise this action.                  In its headlong
    
    rush to reach the merits, the majority suggests no persuasive, much
    
    less compelling, reason for the jettisoning of the preferred manner
    
    of dispute resolution.            I would grant the motion to remand.
    
         Stripped to essentials, the majority asserts that Attorney
    
    General Morales lacks authority to settle this matter on behalf of
    
    the State because of the opposition by Chief Justice Phillips and
    
    Judges Entz and Wood.             I find this nothing short of incredible.
    
    This action challenges the scheme for election of district judges
    
    in Texas.            The real party in interest herein is the State of
    
    Texas.56       As its chief legal officer, the Attorney General "has
    
    broad     discretionary         power    in   conducting    his   legal   duty   and
    
    responsibility to represent the State,"57 including authority to
    
    propose        and    execute   settlement     agreements    in   reapportionment
    
    
         55
          See Chisom v. Edwards, 
    970 F.2d 1408
     (5th Cir. 1992)
    (granting joint motion to remand to effectuate settlement in
    Louisiana voting rights case).
    
         56
          The State is the real party in interest in an action
    against one of its officials in her official capacity. Will v.
    Michigan Dep't of State Police, 
    491 U.S. 58
    , 71 (1989); Kentucky
    v. Graham, 
    473 U.S. 159
    , 165-66 (1985). The plaintiffs here
    named as defendants the Governor of Texas, the Attorney General,
    the Secretary of State, and the Chief Justice of the Supreme
    Court as chair of the Judicial Districts Board, all in their
    official capacities. In short, the plaintiffs have sued the
    State of Texas.
         57
          Terrazas v. Ramirez, 
    829 S.W.2d 712
    , 721 (Tex. 1991)
    (citing Tex. Const. art. 4, § 22; Tex. Gov't Code § 402.021;
    further citations omitted).
    cases.58   That is what the Attorney General seeks to do in this
    
    case.59 The Attorney General has the active assent of the Governor,
    
    Lieutenant Governor, and a majority of both houses of the Texas
    
    Legislature.    Pray tell, what more do we need to accept the
    
    proposed settlement as being made on behalf of the State of Texas?
    
         That Chief Justice Phillips has voiced an objection does not
    
    alter the certainty that the State of Texas, through its authorized
    
    spokesman, wishes to settle this matter.      As chairman of the
    
    Judicial Districts Board, Chief Justice Phillips has a measure of
    
    authority over judicial apportionments. We cannot ignore, however,
    
    that the Board's authority in this area SQ and hence that of the
    
    Chief Justice SQ is entirely subject to the will of a majority of
    
    
    
    
         58
          Terrazas, 829 S.W.2d at 722; id. at 747 (Mauzy, J.,
    dissenting) (at least seven justices agree that "[t]he attorney
    general is constitutionally empowered to execute a settlement
    agreement in litigation challenging a legislative redistricting
    plan.").
         59
          The majority also makes much of the fact that the consent
    decree allows the State of Texas to take actions which would
    otherwise be prohibited by state law. I do not think that
    consideration of the merits of the proposed consent decree is
    appropriate at this juncture. We are a court of errors; the
    district court should have an opportunity to conduct a hearing
    and determine whether to enter the consent decree before we
    decide the merits of such action.
         I further note that although courts generally must defer to
    state apportionment policy in fashioning the remedy for a
    violation of Section 2, district courts have equitable power to
    depart from state law if necessary. See, e.g., White v. Weiser,
    
    412 U.S. 783
    , 797 (1983) (Constitution and Voting Rights Act
    limit judicial deference to state apportionment policy). If the
    court ultimately concludes that there is a reasonable factual and
    legal basis for finding such a violation, see City of Miami, 664
    F.2d at 441, the exercise of such powers by way of a consent
    decree may be appropriate.
    
                                   162
    the legislature60 which has, albeit in a nonbinding fashion, agreed
    
    to the proposed settlement.61   Further, the status of the Chief
    
    Justice in the Texas judiciary does not carry with it the authority
    
    to speak ex cathedra for the state on policy matters affecting the
    
    judiciary which are unrelated to the decisions of specific cases.62
    
    
         60
          See Tex. Const. art. 5, § 7a(h) ("Any judicial
    reapportionment order adopted by the board must be approved by a
    record vote of the majority of the membership of both the senate
    and house of representatives before such order can become
    effective and binding.").
         61
          Chief Justice Phillips's limited authority in this area
    distinguishes the case at bar from Baker v. Wade, 
    769 F.2d 289
    (5th Cir. 1985) (en banc), heavily relied upon by the majority.
    Unlike the district attorney in that case, who enjoyed specific
    authority under state law to represent the state and bring
    prosecutions under the statute there at issue, Chief Justice
    Phillips enjoys neither independent authority over judicial
    apportionment nor express authority to represent the state.
         62
          This proposition applies equally to Judges Entz and Wood.
    Further, because the proposed consent decree will not affect
    their constituencies, Judges Entz and Wood do not gain standing
    to challenge the consent decree because of their status as office
    holders. City of Cleveland, 478 U.S. at 528-29; City of Miami,
    664 F.2d at 447 ("the parties to litigation are not to be
    deprived of the opportunity to compose their differences by
    objections that find no basis in prejudice to the objector").
    Finally, the majority opines that the status of Judges Entz and
    Wood as voters in Harris County somehow clothes them with
    authority to block a settlement favored by competent state
    authorities. While the district courts certainly should permit
    input from such intervenors when considering entry of a consent
    decree, to accord them what amounts to a veto, as the majority
    does, would effectively preclude settlement of any Section 2
    litigation SQ an absurd and unconscionable result which I refuse
    to embrace. See City of Cleveland, 478 U.S. at 529 ("[W]hile an
    intervenor is entitled to present evidence and have its
    objections heard at the hearings on whether to approve a consent
    decree, it does not have power to block the decree merely by
    withholding its consent."). Extending the majority's analysis
    would result in any voter being able to block settlement of any
    suit against the state or one of its subdivisions. That simply
    cannot be. See Apache Bend Apts. v. United States, 
    987 F.2d 1174
    (5th Cir. 1993) (en banc).
    
                                    163
    That the plaintiffs, probably out of an abundance of caution,
    
    joined the Chief Justice as a defendant in this action should not
    
    preclude settlement. No one may seriously suggest that this voting
    
    rights case could not have progressed to a definitive conclusion
    
    without the presence of the Chief Justice. The awesome decision to
    
    deny parties an opportunity to compromise and settle their case,
    
    much less a case as important as that here presented, must be based
    
    on a much more solid, indeed a compelling basis.
    
         I    would   remand    this   case    to     the   district   court      for
    
    consideration of the proposed consent decree.
    
    KING, Circuit Judge, with whom, POLITZ, Chief Judge, and JOHNSON,
    
    Circuit Judge, join, dissenting:
    
         The majority ably accomplishes what it set out to do in this
    
    case:    reach the merits of this appeal so that it can overhaul the
    
    Voting Rights Act.       Indeed, from its initial decision to deny the
    
    motion to remand filed by the Plaintiffs and the State of Texas, to
    
    its decision to reverse the district court's judgment in each of
    
    the nine target counties, the majority proceeds with a kind of
    
    determination not often seen in a judicial opinion.                Like Chief
    
    Judge Politz, I believe that the parties should be given the
    
    opportunity to settle this case.          I also believe that fidelity to
    
    the Voting Rights Act requires us to affirm the district court's
    
    judgment in eight of the nine target counties.               Accordingly, I
    
    respectfully dissent.
    
         The majority's decision to deny the motion to remand, even
    
    standing alone,     is    indefensible.      It    demonstrates    a   lack    of
    
    
                                        164
    judicial restraint and sets a bad precedent.                Under the majority's
    
    reasoning, states and political subdivisions embroiled in section
    
    2 lawsuits must now defend their electoral practices to the bitter
    
    end--unless those practices can be changed in accordance with state
    
    law and everyone who is even remotely connected with the lawsuit
    
    agrees to the proposed changes.           Because these circumstances are
    
    unlikely to occur, the majority has effectively ensured that
    
    section 2 cases will rarely, if ever, be settled.
    
         In light of the majority's seriously flawed decision on the
    
    merits of this case, however, its decision to deny the motion to
    
    remand becomes even more indefensible.              In my view, the majority's
    
    discussion of the merits--complete with a declaration that blacks
    
    and Hispanics are just two more interest groups and a conclusion
    
    that blacks and Hispanics are overrepresented on the Texas district
    
    court   bench--perhaps     provides      the   best       argument   against   its
    
    decision to deny the parties' motion to remand this case for a
    
    settlement    hearing.     In    fact,    it   is    only    after   reading   the
    
    majority's decision on the merits that one can truly understand why
    
    it denied the motion to remand.          For that reason, I begin with the
    
    merits.
    
    
    
                                    I.   THE MERITS
    
         In reversing the district court's judgment, the majority
    
    ultimately concludes that the evidence of vote dilution in this
    
    case is "marginal"--too marginal to outweigh the State of Texas'
    
    substantial    interests   in    maintaining        the    current   system.    I
    
    
                                          165
    disagree with this conclusion on two fronts.          First, I reject the
    
    majority's assertion that the evidence of vote dilution in this
    
    case is weak.      Under the established analytical framework for
    
    assessing section 2 claims, the Plaintiffs' evidence of vote
    
    dilution is anything but weak; indeed, it is only by changing the
    
    rules that the majority can so characterize the evidence in this
    
    case.     I also disagree with the majority's determination that the
    
    State of Texas' interests in maintaining its current at-large
    
    election system are substantial.       In my view, these interests are
    
    little more than tenuous and therefore could not outweigh even
    
    "marginal" evidence of vote dilution.
    
    A.   The Plaintiffs' Evidence of Vote Dilution:              Overhauling a
         Congressional Statute
    
         As explained in my earlier opinion, the evidence of vote
    
    dilution in this case is substantial.         See League of United Latin
    
    American Citizens, Council No. 4434 v. Clements, 
    986 F.2d 728
    , 776-
    
    803 (5th Cir. 1993) (LULAC III).63          Had this case been decided
    
    before today, the evidence in eight of the nine target counties
    
    would have pointed unerringly towards a finding of vote dilution.
    
    This evidence includes:     a geographically compact and politically
    
    cohesive    minority   group;   a   white   bloc   vote   that   is   usually
    
    sufficient to defeat the combined strength of minority and white
    
    crossover votes; a history of official discrimination against the
    
    
         63
            The panel majority opinion contains a fuller discussion
    of many of the issues addressed in this dissent. I have tried to
    avoid an overly long dissent in the hope that the reader will
    refer to the earlier opinion for a more complete treatment of the
    issues.
    
                                        166
    minority    group;     the    lingering       socioeconomic      effects      of
    
    discrimination against the minority group; structural mechanisms,
    
    including giant election districts, that tend to enhance the
    
    dilutive nature of at-large election schemes; and an appalling lack
    
    of minority representation on the district court bench.
    
         After today, such evidence will be only "weak" evidence of
    
    vote dilution.       This is because the majority has changed the
    
    analytical framework for analyzing vote dilution claims. Along the
    
    way, the majority has distorted Congressional intent, rejected
    
    Supreme Court precedent, and completely altered the focus of the
    
    section 2 inquiry.     As a result of the majority's handiwork, the
    
    section 2 inquiry is no longer a blended one which looks to the
    
    "past and present reality" of the local political landscape.               See
    
    S. REP. No. 417, 97th Cong., 2d Sess., at 30 (1982), reprinted in
    
    1982 U.S.C.C.A.N. 177, 208 [hereinafter S. REP.].             Rather, it is
    
    one that looks only at the present, although paradoxically, not at
    
    reality.
    
         1.    Altering the Racial Bloc Voting Inquiries
    
         The most glaring example of the majority's efforts to reshape
    
    the section 2 inquiry is its redefinition of two closely-related
    
    terms--namely, "legally significant white bloc voting" under the
    
    threshold inquiry of Thornburg v. Gingles, 
    478 U.S. 30
     (1986), and
    
    "racially polarized voting" under the totality of circumstances
    
    inquiry.   Before today, these terms have been widely understood by
    
    lower   courts,   as   well   as   by   the   Supreme   Court,    to   have   a
    
    descriptive meaning--a meaning that is completely in accord with
    
    
                                        167
    section 2's focus on results.        The majority, choosing to ignore
    
    this wide consensus, acts as if it is writing on a clean slate.
    
    That is, the majority acts as if Congress and the Supreme Court
    
    have not spoken on these issues.      Because I refuse to put on such
    
    blinders, I cannot join the majority's decision to reformulate
    
    these terms.
    
                a.   The majority's version of racial bloc voting
    
           The majority's formulation of "legally significant white bloc
    
    voting" under the Gingles threshold inquiry, as well as its view of
    
    racially polarized or racial bloc voting under the totality of
    
    circumstances    inquiry,   is   confusing--to   say   the   least.   The
    
    majority spends some thirty pages at the front of its opinion
    
    explaining what these two closely related terms require; yet at the
    
    end of the section entitled "Racial Bloc Voting," all the reader
    
    knows is that more is required than showing (a) with regard to
    
    legally significant white bloc voting, that minority-preferred
    
    candidates are consistently defeated by a white majority, and (b)
    
    for racially polarized voting, that minorities and whites vote
    
    differently. What more is required the majority does not expressly
    
    say.
    
           Make no mistake about the majority opinion in this regard:      it
    
    does redefine the terms of legally significant white bloc voting
    
    and racially polarized voting.        To understand exactly what the
    
    majority "holds" with respect to these two terms, however, one must
    
    first go back to earlier opinions by Judge Higginbotham and then
    
    read the majority's county-by-county analysis in this opinion.         It
    
    
                                       168
    is only then that the majority's holding becomes comprehensible.
    
    Specifically,       the   majority     holds      that   to   establish       legally
    
    significant       white   bloc   voting     and   racially    polarized       voting,
    
    minority plaintiffs must, at the very least, negate partisan
    
    politics as an explanatory factor for the consistent defeat of
    
    their preferred candidates.          The majority further implies--without
    
    deciding     the    issue--that       minority      plaintiffs     may    have     to
    
    affirmatively prove racial animus in the electorate to meet their
    
    burden with respect to legally significant white bloc voting and
    
    racially polarized voting.
    
         The starting point for understanding the majority's vague
    
    approach     to     the    racial     bloc     voting     inquiries      is     Judge
    
    Higginbotham's opinion in Jones v. City of Lubbock, 
    730 F.2d 233
    
    (5th Cir. 1984) (Higginbotham, J., specially concurring from denial
    
    of rehearing).       This is where he first suggested that racial bloc
    
    voting requires a showing of racial animus in the electorate.                      He
    
    asserted:
    
         The [racial bloc voting] inquiry is whether race or
         ethnicity was such a determinant of voting preference in
         the rejection of black or brown candidates by a white
         majority that the at-large district, with its components,
         denied minority voters effective voting opportunity.
    
    Id. at 234.       Judge Higginbotham further questioned whether racial
    
    bloc voting could be demonstrated without the use of a multivariate
    
    regression    analysis,      which,    he    argued,     would   eliminate      other
    
    possible causes of voting behavior--such as campaign expenditures,
    
    party identification, income, media use measured by cost, religion,
    
    
    
    
                                            169
    name identification, or distance that a candidate lived from any
    
    particular precinct.        See id. at 234-35.
    
         The racial animus theme was also present, albeit to a lesser
    
    extent, in Judge Higginbotham's earlier dissenting opinion in this
    
    case,   where    he    strongly   disagreed   with    the     panel   majority's
    
    definition of legally significant white bloc voting and racially
    
    polarized voting.        In particular, he stated that the "consistent
    
    defeat" of minority-preferred candidates could not be "on account
    
    of race or color," as required by section 2, unless it is tied to
    
    "racial bias in the electorate."              LULAC III, 986 F.2d at 846
    
    (Higginbotham, J., dissenting).          This, he further stated, "is the
    
    heart of section 2."        Id.; see also id. at 831 ("[T]he extent to
    
    which voting patterns are attributable to causes other than race is
    
    an integral part of the inquiry into racial bloc voting . . . .").
    
         It was also in this dissent, however, that Judge Higginbotham
    
    first advocated placing on plaintiffs the burden of "negating
    
    partisan politics" in order to show legally significant white bloc
    
    voting and racially polarized voting.              That is, he appeared to
    
    retreat from his earlier, more rigid position of requiring minority
    
    plaintiffs      to    affirmatively    establish     racial    animus    in   the
    
    electorate and instead described the plaintiffs' burden as one of
    
    negating partisan politics.           See LULAC III, 986 F.2d at 834.         At
    
    that point, he was willing to limit the "inquiry into racial bloc
    
    voting to determining whether divergent voting patterns are caused
    
    by partisan differences."          Id.; see also id. at 845 ("Proof of
    
    majority voting based on party affiliation prevents the showing of
    
    
                                           170
    bloc voting required by Gingles.").            Thus, Judge Higginbotham's
    
    earlier position in this case was that, where the evidence "shows
    
    that divergent voting patterns among white and minority voters are
    
    best explained by partisan affiliation, . . . plaintiffs have
    
    failed to establish racial bloc voting."         Id. at 833-34.      In short,
    
    he   would   have   required   minority    plaintiffs   to    show   that   the
    
    consistent defeat of their preferred candidates was not "readily
    
    attributable to partisan affiliation."          Id. at 834.
    
          There are still vestiges of Judge Higginbotham's earlier
    
    positions in the majority opinion, although in the front of the
    
    opinion they are only expressed as "powerful arguments."                    The
    
    majority asserts, on the one hand, that it "need not hold that
    
    plaintiffs must supply conclusive proof that a minority group's
    
    failure to elect representatives of its choice is caused by racial
    
    animus in the electorate in order to decide that the district
    
    court's judgment must be reversed." Majority Opinion at 57-58. It
    
    notes, however, that a racial animus requirement could readily be
    
    inferred from the text and legislative history of section 2, as
    
    well as Supreme Court precedent.       See id. at 58.      The majority also
    
    asserts that there is "a powerful argument supporting a rule that
    
    plaintiffs[,]       to   establish   legally    significant     racial      bloc
    
    voting[,] must prove that their failure to elect representatives of
    
    their choice cannot be characterized as a `mere euphemism for
    
    political defeat at the polls.'"           Id. at 58-59.     In this regard,
    
    the majority explains that "[d]escribing plaintiffs' burden in
    
    terms of negating `partisan politics' rather than affirmatively
    
    
                                         171
    proving    `racial     animus'   would     not    be   simply   a   matter   of
    
    nomenclature."    Id. at 59.      It notes:      "A rule conditioning relief
    
    under § 2 upon proof of the existence of racial animus in the
    
    electorate would require plaintiffs to establish the absence of not
    
    only partisan voting, but also all other potentially innocent
    
    explanations for white voters' rejection of minority-preferred
    
    candidates."     Id.
    
         Ultimately, however, the majority purports not to resolve the
    
    debate between Judge Higginbotham's two earlier positions. Whether
    
    the plaintiffs' burden of proving bloc voting includes the burden
    
    of demonstrating racial animus in the electorate, or only the
    
    burden of negating partisan politics, we are told, "the result is
    
    the same."     Id. at 61.        The district court's judgment must be
    
    reversed, according to the majority, "[b]ecause the evidence in
    
    most instances unmistakably shows that divergent voting patterns
    
    among white and minority voters are best explained by partisan
    
    affiliation"--thus leaving the Plaintiffs unable to "establish
    
    racial bloc voting."      See id. at 64.
    
         That the majority has reformulated the concepts of legally
    
    significant white bloc voting and racially polarized voting becomes
    
    crystal clear in its application of the law to each county.                  In
    
    Dallas County, for example, the majority holds that the plaintiffs
    
    have not satisfied the third Gingles threshold requirement.                  It
    
    reasons:
    
              The evidence in Dallas County clearly establishes
         that judicial elections are decided on the basis of
         partisan voting patterns.     We are left with the
         inescapable conclusion that plaintiffs have failed to
    
                                         172
         prove that minority-preferred judicial candidates in this
         county are consistently defeated by racial bloc voting.
         This is a failure to meet the threshold showing required
         by Gingles.
    
    Id. at 106-07.   The majority makes similarly explicit holdings in
    
    Midland, Lubbock, and Ector counties.      See id. at 141-42 (holding
    
    that, because partisan affiliation, not race, caused the defeat of
    
    the minority-preferred   candidate    in   Midland   County   elections,
    
    "[t]he plaintiffs have not established the third prerequisite of
    
    Gingles."); id. at 144 (concluding that plaintiffs have not met the
    
    third Gingles factor because the evidence establishes that the
    
    voting patterns in Lubbock County resulted from party loyalty, not
    
    race); id. 145-46 ("Plaintiffs have failed to meet the third
    
    prerequisite of Gingles" because the "undisputed facts indicate
    
    that partisan affiliation controlled the outcomes of the general
    
    elections."). Moreover, in Harris and Bexar counties, the majority
    
    strongly suggests that, because election outcomes appeared to
    
    result from partisan politics, the Plaintiffs could not establish
    
    legally significant white bloc voting.64
    
         64
           In reversing the district court's findings of legally
    significant white bloc voting in the various counties, the
    majority relies on trivariate regression analyses submitted by
    the State of Texas and Judge Wood in this case--analyses which
    unquestionably demonstrated that a candidate's partisan
    affiliation was a better predictor of electoral success than a
    candidate's race. The majority does not remand this case to the
    district court for consideration of the statistics under the new
    legal standards for racial bloc voting--as might be expected
    under Pullman-Standard v. Swint, 
    456 U.S. 273
    , 292 (1982) (where
    district court's factual finding is based upon a misapprehension
    of law, "a remand is the proper course unless the record permits
    only one resolution of the factual issue"). Rather, the majority
    concludes that the voting statistics in this case are capable of
    only one interpretation--an interpretation that is severely
    flawed. See infra Part I.A.1.b(ii).
    
                                    173
         Thus,    although             the    majority's     "holding"       with    respect    to
    
    legally significant white bloc voting and racially polarized voting
    
    is confused and elusive--a paradigm of "fluidity and fixity," see
    
    Majority Opinion at 56--it is nonetheless a holding:                                  Minority
    
    plaintiffs must now establish, at a minimum, that the racially
    
    divergent     voting         which       consistently        defeats     their       preferred
    
    candidates is not the result of partisan politics.                          Moreover, the
    
    majority hints that the plaintiffs' burden in this regard may even
    
    be higher.        That is, minority plaintiffs may have to demonstrate
    
    that racially divergent voting patterns are due to racial animus in
    
    the electorate in order to meet their burden under the legally
    
    significant       white       bloc       voting    and   racially        polarized     voting
    
    inquiries.
    
                 b.     Problems with the majority's version of racial bloc
                        voting
    
         There are grave problems with the majority's approach(es) to
    
    legally    significant             white    bloc    voting    and    racially        polarized
    
    voting.       From       a     purely       legal      perspective,       the    majority's
    
    reformulation       of       the    terms    simply      cannot     be   supported.        The
    
    majority's        approach         is     also     flawed    from    a    social      science
    
    perspective. More importantly, however, the reformulation of these
    
    terms essentially eviscerates section 2 of the Voting Rights Act--
    
    at least in the context of partisan elections.
    
                                        (i)     Legal problems
    
         The     majority         asserts        that      its   definitions        of     legally
    
    significant white bloc voting and racially polarized voting are
    
    
    
                                                     174
    required by the language and legislative history of section 2, as
    
    well as Supreme Court precedent.   I disagree.
    
         This being a question of statutory interpretation, I turn
    
    first to the language of section 2.     That section provides, in
    
    pertinent part:
    
         (a)   No voting qualification or prerequisite to voting
               or standard, practice, or procedure shall be
               imposed or applied by any State or political
               subdivision in a manner which results in a denial
               or abridgement of the right of any citizen of the
               United States to vote on account of race or color,
               or in contravention of the guarantees set forth in
               section 1973b(f)(2) of this title, as provided in
               subsection (b) of this section.
    
         (b)   A violation of subsection (a) of this section is
               established   if,   based   on  the   totality   of
               circumstances, it is shown that the political
               processes leading to nomination or election in the
               State or political subdivision are not equally open
               to participation by members of a class of citizens
               protected by subsection (a) of this section in that
               its members have less opportunity to participate in
               the political process and to elect representatives
               of their choice. The extent to which members of a
               protected class have been elected to office in the
               State or political subdivision is one circumstance
               which may be considered: Provided, That nothing in
               this section establishes a right to have members of
               a protected class in numbers equal to their
               proportion in the population.
    
    42 U.S.C. § 1973.
    
         The language of this section does not, under a straightforward
    
    reading, require minority plaintiffs to "negate partisan politics"
    
    or demonstrate current racial animus in the electorate.   The words
    
    "partisan politics" appear nowhere in the language of section 2.
    
    And although subsection (a) does require a link--a critical link--
    
    between the denial or abridgment of the right to vote and "race or
    
    color," there is no indication that Congress used the phrase "on
    
                                    175
    account of race or color" to require proof of either the absence of
    
    partisan    politics       or    the   presence   of   racial    animus     in   the
    
    electorate.       In fact, Congress emphasized that it used the phrase
    
    "`on account of race or color' to mean `with respect to race or
    
    color,'     and   not     to    connote   any   required   purpose     of   racial
    
    discrimination."        S. REP. at 27-28 n.109, 1982 U.S.C.C.A.N. at 205-
    
    06 n.109.
    
          Nor   does    the    legislative      history    accompanying       the    1982
    
    amendments to section 2 offer any real support for the majority's
    
    new   definition     of    legally     significant     white    bloc   voting    and
    
    racially polarized voting.                In a bit of fancy footwork, the
    
    majority asserts that, pursuant to the Senate Report accompanying
    
    the amended section 2, racial bloc voting is established when "race
    
    is the predominant determinant of political preference."                  Majority
    
    Opinion at 48.       The Senate Report says no such thing.              It states
    
    that, in considering the totality of the circumstances, courts
    
    should examine "the extent to which voting in the elections of the
    
    state or political subdivision is racially polarized."                  S. REP. at
    
    29, 1982 U.S.C.C.A.N. at 206.              Several pages later, in a section
    
    entitled "Responses to Questions Raised About the Results Test,"
    
    the Senate Report reads:
    
               The Subcommittee Report claims that the results test
          assumes "that race is the predominant determinant of
          political preference."    The Subcommittee Report notes
          that in many cases racial bloc voting is not so
          monolithic, and that minority voters do receive
          substantial support from white voters.
               That statement is correct, but misses the point. It
          is true with respect to most communities, and in those
          communities, it would be exceedingly difficult for
          plaintiffs to show that they were effectively excluded
    
                                              176
         from fair access to the political process under the
         results test.
              Unfortunately, however, there still are some
         communities in our Nation where racial politics do
         dominate the electoral process.
              In the context of such racial bloc voting, and other
         factors, a particular election method can deny minority
         voters equal opportunity to participate meaningfully in
         elections.
    
    Id. at 33, U.S.C.C.A.N. at 211.              This passage, from which the
    
    majority lifts its definition of racial bloc voting, simply does
    
    not define the term.       If anything, the reference to the statement
    
    "that in many cases racial bloc voting is not so monolithic, and
    
    that minority voters do receive substantial support from white
    
    voters" reinforces my view that the racial bloc voting inquiry
    
    looks only at the extent to which minorities and whites vote
    
    differently.      See infra Part I.A.1.c.
    
         Even more incredible, however, is the majority's assertion
    
    that the Supreme Court's definition of legally significant white
    
    bloc voting, as set forth in Justice Brennan's opinion in Gingles,
    
    is still open to question.           Five Justices joined the part of
    
    Justice      Brennan's    opinion   laying     out    the   Gingles   threshold
    
    requirements--including the requirement that minority plaintiffs
    
    "must   be    able   to   demonstrate   that    the    white   majority   votes
    
    sufficiently as a bloc to enable it . . . usually to defeat the
    
    minority's preferred candidate."             478 U.S. at 51.          Moreover,
    
    contrary to the majority's assertions otherwise, five Justices also
    
    joined in Part III.B.2. of Justice Brennan's opinion, where he
    
    defined legally significant white bloc voting as "a white bloc vote
    
    
    
    
                                          177
    that normally will defeat the combined strength of minority support
    
    plus white `crossover' votes."          Id. at 56.
    
         Although there was some disagreement over the appropriate
    
    framework for analyzing section 2 claims at the time Gingles was
    
    decided--specifically, from Justice O'Connor--recent Supreme Court
    
    cases   confirm   that      the   threshold    test    announced   in    Justice
    
    Brennan's    majority    opinion    still     controls.     In    Voinovich   v.
    
    Quilter, 
    113 S. Ct. 1149
    , 1157 (1993), Justice O'Connor, writing
    
    for a unanimous Court, stated:
    
         In Thornburg v. Gingles, supra, this Court held that
         plaintiffs claiming vote dilution must prove three
         threshold conditions. First, they must show that the
         minority group is sufficiently large and geographically
         compact to constitute a majority in a single-member
         district.   Second, they must prove that the minority
         group is politically cohesive.     Third, the plaintiffs
         must establish that the white majority votes sufficiently
         as a bloc to enable it . . . usually to defeat the
         minority's preferred candidate.
    
    (emphasis    added)     (internal    quotations       omitted)   (ellipsis    in
    
    original).    The Court similarly embraced the Gingles threshold
    
    test, as formulated by Justice Brennan, in Growe v. Emison, 113 S.
    
    Ct. 1075, 1084 (1993), another unanimous opinion.
    
         Thus,    when    the   majority    reformulates      the    third   Gingles
    
    threshold factor and requires minority plaintiffs to negate the
    
    existence of partisan politics (or possibly to prove racial animus
    
    in the electorate), it does so in the face of binding Supreme Court
    
    precedent. Moreover, even assuming that Gingles did not decide the
    
    question of what constitutes legally significant white bloc voting
    
    and racially polarized voting, I still cannot agree with the
    
    majority's rendition of the various opinions in the case.
    
                                           178
         The   primary    disagreement       in    Gingles   concerned Justice
    
    Brennan's statement that "the reasons black and white voters vote
    
    differently have no relevance to the central section 2 inquiry."
    
    478 U.S. at 63 (emphasis added).          Justice O'Connor, writing for
    
    three other Justices, disagreed.         She rejected Justice Brennan's
    
    assertion that explanations for racially divergent voting patterns
    
    "can never affect the overall vote dilution inquiry," id. at 100
    
    (emphasis added), and cited two examples of how such explanations
    
    might affect it.     First, she noted:
    
         Evidence that a candidate preferred by the minority group
         in a particular election was rejected by white voters for
         reasons other than those which made that candidate the
         preferred choice of the minority group would seem clearly
         relevant in answering the question whether bloc voting by
         white   voters   will   consistently    defeat   minority
         candidates.
    
    Id. (emphasis added).     She also believed that "Congress intended
    
    that explanations of the reasons why white voters rejected minority
    
    candidates would be probative of the likelihood that candidates
    
    elected without minority support would be willing to take the
    
    minority interests into account."        Id.    Contrary to the majority's
    
    assertions, however, Justice O'Connor did not "maintain[] that
    
    evidence   that   white   and   minority      voters   generally   supported
    
    different candidates did not constitute legally significant racial
    
    bloc voting where these patterns were attributable to partisan
    
    affiliation rather than the race of the candidate."                Majority
    
    Opinion at 51.    On this issue, she stated:
    
         Insofar as statistical evidence of divergent racial
         voting patterns is admitted solely to establish that the
         minority group is politically cohesive and to assess its
         prospects for electoral success, I agree that defendants
    
                                       179
         cannot rebut this showing by offering evidence that
         divergent racial voting patterns may be explained in part
         by causes other than race.
    
    Gingles, 478 U.S. at 100 (emphasis added). This statement suggests
    
    that evidence that divergent voting patterns are explained in part
    
    by partisan affiliation will not preclude a finding of legally
    
    significant white bloc voting--a finding which bears directly on
    
    the minority group's "prospects for electoral success."65
    
         The    secondary    disagreement        in   Gingles   concerned     Justice
    
    Brennan's statement that "the race of the candidate per se is
    
    irrelevant to racial bloc voting analysis."                    478 U.S. at 67.
    
    Justice    White    disagreed   with   this       statement,   as   did   Justice
    
    O'Connor.     Specifically, they both argued that the race of the
    
    candidate is relevant to the racial bloc voting inquiry.                  See id.
    
    at 83, 101.        That the race of the candidate is relevant to the
    
    racial bloc voting inquiry, however, does not translate to a
    
    requirement that minority plaintiffs must negate partisan politics
    
    
    
         65
           The majority suggests that evidence that racially
    divergent voting patterns are attributable to partisan
    affiliation or perceived interests is "quite probative" on the
    question of whether white bloc voting will consistently defeat
    minority-preferred candidates. Majority Opinion at 57 n.26. I
    strongly disagree. If the "perceived interests" of minority
    voters lead them to vote for candidates of one political party,
    while the interests of a majority of whites lead them to vote for
    candidates of a different party, this would seem to strengthen,
    not weaken, the consistency with which the two racial groups
    would vote differently. That election results appear to be
    attributable to voting along party lines, then, does not suggest
    that other candidates, "equally preferred by the minority group,
    might be able to attract greater white support in future
    elections." In short, it does nothing to undercut--and may even
    strengthen--the consistency with which minority-preferred
    candidates are defeated.
    
                                           180
    or prove racial animus in the electorate in order to demonstrate
    
    polarized voting.
    
           Finally, I must say a few words about the Supreme Court's
    
    decision in Whitcomb v. Chavis, 
    403 U.S. 124
     (1971), upon which the
    
    majority places heavy reliance.        The outcome in that case--i.e.,
    
    the Supreme Court's reversal of the district court's vote dilution
    
    finding--did not, in my view or in Congress' view, turn on the
    
    absence of racial bloc voting.        Rather, as Congress indicated in
    
    the Senate Report accompanying the 1982 amendments to section 2,
    
    the district court's error in Whitcomb was finding vote dilution
    
    "on the basis of proof that black ghetto residents with dist[inct]
    
    legislative interests had been consistently underrepresented in the
    
    legislature in comparison with their proportion of the population."
    
    S. REP. at 20, 1982 U.S.C.C.A.N. at 198; see also id. at 23, 1982
    
    U.S.C.C.A.N. at 200 ("Whitcomb . . . recognized that, in order to
    
    prevail, plaintiffs had to prove more than that minority members
    
    had not elected legislators in proportion to their percentage of
    
    the population."). Also significant to the outcome in Whitcomb, in
    
    Congress' view, was the fact that nine blacks had won at-large
    
    elections in the time period studied in Whitcomb.        See id. at 21,
    
    1982    U.S.C.C.A.N.   at   198.66     Significantly,   Congress   never
    
           66
           The Department of Justice (DOJ) argues persuasively in
    its en banc brief that the real issue in Whitcomb was not whether
    blacks in Marion County generally were denied an opportunity to
    elect their chosen candidates, but whether ghetto blacks were
    being denied such an opportunity. DOJ points specifically to
    evidence suggesting that "black voters in a middle-class black
    area were able to elect candidates from their area even when
    Republicans were winning generally." See Whitcomb, 403 U.S. at
    133, 150 n.29 (noting that census tract 220, inhabited
    
                                         181
    interpreted Whitcomb to require minority plaintiffs to prove that
    
    the consistent defeat of their preferred candidates is not the
    
    result of partisan politics. As explained more fully in my earlier
    
    opinion, Whitcomb stands for the proposition that where there is
    
    evidence of partisan voting or interest group politics and no
    
    evidence that      members   of   the    minority   group   have    an   unequal
    
    opportunity to participate in the political process on account of
    
    race or color, the minority group's vote dilution claim will fail.
    
    See LULAC III, 986 F.2d at 808-10.
    
                         (ii)    Social science problems
    
           Even without the legal problems inherent in the majority's
    
    approach to legally significant white bloc voting and racially
    
    polarized voting, the majority's approach is severely flawed from
    
    a social science perspective.           Regardless of whether the majority
    
    requires a multivariate regression analysis, which would seek to
    
    eliminate all causes of voting behavior other than race, or only a
    
    trivariate regression analysis, which would attempt to eliminate
    
    partisan affiliation, there is a problem with requiring this type
    
    of evidence as an integral part of the vote dilution inquiry:                 it
    
    ignores the critical distinction between experimental research and
    
    non-experimental research. Specifically, it ignores the warning of
    
    most   respected    social   scientists,      including     the    experts   who
    
    
    
    
    predominantly by middle class blacks, elected one senator and
    five representatives). The ghetto area had similar success.
    During the same time period, it elected one senator and four
    representatives. Id. at 150 n.29.
    
                                            182
    testified in this case,67 that the causes of voting behavior cannot
    
    be determined from the use of any kind of regression analysis--
    
    whether bivariate, trivariate, or multivariate.
    
          It is important to recognize that the kind of evidence that
    
    the majority requires minority plaintiffs to introduce will involve
    
    no   experimental    manipulation        of    independent   variables.   The
    
    plaintiffs will not be able to manipulate the race or party
    
    affiliation of the candidate to determine which one had the greater
    
    effect on election outcomes.         Rather, the plaintiffs will have to
    
    take existing election results and work backwards.               This kind of
    
    real world research has been labelled "non-experimental research"
    
    by social scientists.       See ELAZAR J. PEDHAZUR, MULTIPLE REGRESSION    IN
    
    BEHAVIORAL RESEARCH: EXPLANATION   AND   PREDICTION 175 (2d ed. 1982).
    
          There are two main problems with inferring causation on the
    
    basis of regression analyses in the context of non-experimental
    
    research:
    
          First, variables used in nonexperimental research may be,
          and often are, proxies for causal variables that are not
          included in the regression equation. . . . Needless to
          say, manipulating a proxy variable will not bring about
          a desired effect regardless of the magnitude of the
          regression coefficient associated with it.      Yet, one
          encounters frequently not only the interpretation of
          proxies as if they were causal variables but also
          recommendations for policy decisions on the basis of such
          interpretations. . . .
    
    
          67
           The State of Texas' expert in this case conceded that his
    intent in conducting a trivariate regression analysis "was not
    find out the precise reasons why a candidate won or lost." He
    further stated that, if he "had tried to get involved in campaign
    expenditures and incumbency, ratings by the Bar Association, it
    would be an impossible task to do." See LULAC III, 986 F.2d at
    805.
    
                                             183
              Second, variables in nonexperimental research tend
         to be intercorrelated.      Since more often than not
         researchers neither understand the causes of the
         interrelations nor attempt to study them, implications of
         regression coefficients for policy decisions are
         questionable.
    
    PEDHAZUR, supra, at 224.
    
         Requiring        minority     plaintiffs         to    come   forward         with     a
    
    multivariate     regression        analysis      to    determine       the     causes      of
    
    racially      divergent        voting    patterns,         as   Judge        Higginbotham
    
    originally advocated in City of Lubbock, see supra Part I.A.1.a.,
    
    would     implicate     the     second     problem         described     above.           The
    
    independent     variables       listed     by    Judge      Higginbotham--including
    
    incumbency, campaign expenditures, party identification, income,
    
    media use measured by cost, religion--"tend to be correlated,
    
    sometimes substantially."           PEDHAZUR, supra, at 224.            Therefore, "it
    
    [becomes] difficult, if not impossible, to untangle the effects of
    
    each variable."       Id. By inferring causation from such analysis, we
    
    would undoubtedly         be    engaging    in    what      amounts     to    an   "almost
    
    mindless interpretation[] of regression analysis in nonexperimental
    
    research."      Id. at 223.        In short, we would be importing "junk
    
    science" into the Voting Rights Act while rejecting it in other
    
    contexts.68
    
         68
           Professor Bernard Grofman, of the University of
    California at Irvine, has recently commented on the pitfalls of
    drawing conclusions about causation from multivariate analyses of
    voting patterns. In an article appearing in Social Science
    Quarterly, Professor Grofman laments that "[f]undamental flaws
    exist in most multivariate approaches to bloc voting analysis
    used to date." Bernard Grofman, Multivariate Methods & the
    Analysis of Racially Polarized Voting: Pitfalls in the Use of
    Social Science by the Courts, 72 SOC. SCI. Q. 826, 828 (1991).
    Professor Grofman specifically criticizes the methodology used by
    
                                               184
           Requiring minority plaintiffs to only come forward with a
    
    trivariate regression analysis, as the majority seems to do in this
    
    case, does not alleviate the social science problems; it only
    
    multiplies them.      Not only does such a requirement ignore the fact
    
    that   the   two    independent    variables     (i.e.,   race   and   partisan
    
    affiliation) are substantially correlated, it also runs the risk
    
    that the two variables being studied are only proxies for causal
    
    variables    that    are   not   included   in   the   regression      equation.
    
    Indeed, the majority's position in this case directly conflicts
    
    with Judge Higginbotham's statement in City of Lubbock, where he
    
    criticized a bivariate regression analysis for "ignor[ing] the
    
    reality that race or national origin may mask a host of other
    
    explanatory variables."          730 F.2d at 235.      That is, a trivariate
    
    regression analysis such as the one now effectively required by the
    
    
    
    the defendants' expert in McCord v. City of Fort Lauderdale, 
    787 F.2d 1528
    , vacated, 
    804 F.2d 611
     (11th Cir. 1986). This expert
    testified that, because the race of the candidate was not
    significant in explaining election outcomes beyond what could be
    accounted for by other variables (such as incumbency, campaign
    expenditures, newspaper endorsements, voter turnout, and the sex
    of the candidate), race was not really a factor in accounting for
    voting patterns. See 787 F.2d at 829. According to Professor
    Grofman, the expert's interpretation of the voting statistics was
    "simply wrong," because, among other things, "there are so many
    other variables collinear with race used that they almost
    certainly will reduce [the] significance of race in a
    multivariate regression." Grofman, supra, at 830. Ultimately,
    Professor Grofman concludes:
    
           [A]s used so far by expert witnesses for defendants in
           voting rights cases, multivariate regression methods
           have produced misleading results about the levels of or
           existence of racial bloc voting patterns, and have
           served mainly to misuse statistics and confuse courts.
    
    Id. at 832.
    
                                          185
    majority ignores the reality that race or partisanship "may mask a
    
    host of other explanatory variables."
    
           The    trivariate       regression    analyses      offered    in    this    case
    
    undoubtedly demonstrate that the party affiliation of a candidate
    
    is a better predictor of electoral success than the race of the
    
    candidate.         Because we are dealing with non-experimental research,
    
    however, I cannot take the leap that the majority makes--namely,
    
    that the party affiliation of a candidate is the best, or the
    
    single most powerful, explanation of electoral success.                             The
    
    evidence in this case also demonstrates that, in many of the
    
    counties, race is substantially correlated with party affiliation,
    
    and the trivariate regression analysis offered in this case did not
    
    determine, and could not have determined, why people join certain
    
    parties.      In my view, then, it can no more explain why people vote
    
    the    way     they      do    than   a     bivariate      regression       analysis.
    
    Significantly, for purposes of the Voting Rights Act, it could not
    
    negate "race or color" as an explanation for election outcomes.
    
                              (iii)    The practical problem
    
           The majority's approach to legally significant white bloc
    
    voting       and     racially     polarized       voting     places        an    almost
    
    insurmountable hurdle in front of minority groups proceeding under
    
    section 2.         Unless minority plaintiffs can successfully establish
    
    that   voters       in   the   controlling      political    party    are       racially
    
    motivated--either through the use of questionable voting statistics
    
    or by calling people from that party and asking them why they voted
    
    
    
    
                                              186
    the way they did69--their claim will fail.   In fact, they will not
    
    even be able to make out a prima facie case.70
    
         69
           But see Kirksey v. City of Jackson, 
    663 F.2d 659
    , 662
    (5th Cir. Unit A Dec. 1981) (holding that, because of First
    Amendment concerns, voters' motivations are not subject to
    searching scrutiny by plaintiffs in a voting rights case),
    clarified, 
    669 F.2d 316
     (5th Cir. 1982).
    
         70
           In this regard, I note that the majority's position is
    much more strained and severe than the one taken by Chief Judge
    Tjoflat of the Eleventh Circuit. In Solomon v. Liberty County,
    
    899 F.2d 1012
     (11th Cir. 1990) (evenly-divided en banc opinion),
    cert. denied, 
    498 U.S. 1023
     (1991), Chief Judge Tjoflat, writing
    for four other judges, advocated a no racial bias affirmative
    defense under section 2. He reasoned:
    
         I submit that section 2 prohibits those voting systems
         that have the effect of allowing a community motivated
         by racial bias to exclude a minority group from
         participation in the political process. Therefore, if
         a section 2 defendant can affirmatively show, under the
         totality of the circumstances, that the community is
         not motivated by racial bias in its voting, a case of
         vote dilution has not been made out.
    
    Id. at 1022 (Tjoflat, C.J., joined by Fay, Edmonson, Cox, and
    Hill, JJ., specially concurring). The section 2 framework, as he
    envisions it, would work in a manner analogous to the framework
    followed in Title VII cases. See United States Postal Serv. Bd.
    of Governors v. Aikens, 
    460 U.S. 711
     (1983); McDonnell Douglas
    Corp. v. Green, 
    411 U.S. 792
     (1973). If minority plaintiffs
    satisfy the Gingles threshold inquiry, a rebuttable presumption
    arises that the community is motivated by racial bias. See
    Solomon, 899 F.2d at 1035. If the defendant offers nothing in
    rebuttal, the minority plaintiffs win. However,
    
         [i]f. . . the defendant offers proof of other objective
         factors in rebuttal, the court must be satisfied,
         before it may rule in favor of the plaintiff[s], that,
         under the totality of the circumstances, the minority
         group is denied meaningful access to the political
         process "on account of race or color." If the
         defendant can affirmatively show that the "social and
         historical conditions" are such that their interaction
         with the scheme will not result in voting
         discrimination, the plaintiff[s] cannot prevail. Such
         an affirmative showing can be made with evidence of
         objective factors that, under the totality of the
    
                                   187
          The typical section 2 vote dilution case--i.e., where a
    
    certain electoral law, practice, or structure interacts with social
    
    and   historical    conditions   to    cause    an     inequality    in    the
    
    opportunities enjoyed by minority and white voters to elect their
    
    preferred   candidates--has   two     prominent   features:      One      is   a
    
    politically cohesive minority group (e.g., blacks or Hispanics)
    
    whose members share political interests and vote together, usually
    
    in a single political party that also includes whites.              The other
    
    is the existence of a white majority, generally in a different
    
    political party, whose voting strength is sufficient usually to
    
    defeat   the   combined   strength     of   minority    votes   plus      white
    
    "crossover" votes.    The problem for minority voters in the typical
    
    section 2 case is that they have been submerged in a white
    
    majority--unable to forge a coalition with enough whites to elect
    
    representatives of their choice.       Thus, the Voting Rights Act, as
    
    interpreted in Gingles and succeeding cases, presupposes partisan
    
    voting and asks whether politically cohesive minority voters have
    
    
    
          circumstances, indicate that the voting community is
          not driven by racial bias.
    
    Id. (internal citations omitted) (emphasis added).
         Even Judge Tjoflat recognizes the concept of racial bloc
    voting does not contain any racial animus requirement. He notes:
    
          I do not mean to imply that a defendant, by proving
          absence of racial bias, can rebut a plaintiff's showing
          of racial bloc voting. . . . Such evidence, however,
          does not create an irrebuttable case of vote dilution--
          it is irrebuttable proof of only one factor (albeit an
          important factor) in the totality-of-the-circumstances
          test.
    
    Id. at 1035 n.12.
    
                                         188
    an unequal opportunity to participate in the political process--a
    
    partisan political process--and to elect representatives of their
    
    choice on account of race or color.
    
         Under the majority's reasoning, this typical scenario, the
    
    scenario specifically contemplated by the Gingles framework, will
    
    now preclude a finding of vote dilution.   As long as some whites
    
    vote with minorities in the Democratic Party, partisan affiliation
    
    will always be a better predictor of election outcomes than race
    
    (even if a few minorities vote Republican).    Such circumstances,
    
    under the majority's framework, will preclude a finding of vote
    
    dilution.   In short, the majority has effectively eviscerated
    
    section 2 of the Voting Rights Act in communities where there is
    
    any measurable crossover voting by whites.71
    
         In sum, in the context of a challenge to an at-large election
    
    scheme, there are two ways to view a politically cohesive minority
    
    group, which, despite the support of some whites, is consistently
    
    
         71
           The majority implies that interest group politics did not
    begin in Texas until the 1980's, when the Republican Party
    emerged as a force to be reckoned with. The majority ignores
    that, even when Texas was a one party state, there were still
    different factions, or interest groups, within the Democratic
    party. Thus, partisan or interest group politics has always been
    a feature of Texas' colorful political landscape. To hold
    otherwise is to ignore the past reality. As noted previously,
    the evidence in this case reflects that, before 1980, minority-
    preferred candidates lost in Democratic primary elections,
    generally to white Democrats; after 1980, minority-preferred
    candidates may make it to the general election, but only to lose
    to white Republicans. See LULAC III, 986 F.2d at 812 n.59.
    "From the vantage point of minority voters--which is the vantage
    point of section 2--it is difficult to see how the arrival of a
    two party system in Texas has altered their ability to
    participate in the political process and elect candidates of
    their choice." Id.
    
                                   189
    unable to elect representatives of its choice.     I view it as one
    
    factor suggesting vote dilution--i.e., that a minority group is
    
    submerged in a white majority and unable, despite the support of
    
    some whites, to elect representatives of its choice.   The majority
    
    calls this merely interest group politics.72   Of course, in calling
    
    this interest group politics, the majority treats a racial or
    
    language minority group as a mere "interest group" rather than as
    
    a politically cohesive minority group striving to make its voice
    
    heard.
    
              c.   A more reasonable approach to racial bloc voting,
                   causation, and voters' motivations
    
         Rather than altering the section 2 framework and requiring
    
    minority plaintiffs to negate partisan politics (or perhaps to
    
    prove racial animus in the electorate) in order to make out a prima
    
    facie case of vote dilution, I would adhere to the framework
    
    established by the language of section 2, as interpreted by the
    
    Supreme Court and this court.   To make out a prima facie case of
    
         72
           In support of its assertion that partisan politics, not
    race, is responsible for the inability of blacks and Hispanics to
    participate in the political process and elect representatives of
    their choice, the majority notes that "white Democrats have in
    recent years experienced the same electoral defeats as minority
    voters." Majority Opinion at 63. It then states:
    
         If we are to hold that these losses at the polls,
         without more, give rise to racial vote dilution
         warranting special relief for minority voters, a
         principle by which we might justify withholding similar
         relief from white Democrats is not readily apparent.
    
    Id. The simple answer to this concern about limiting the reach
    of section 2 is that, unlike the minorities in this case, whites
    are not politically cohesive. Thus, contrary to the majority's
    assertions, white Democrats would be no more able to obtain
    relief under section 2 than would white Republicans.
    
                                    190
    vote dilution, a minority group would have to satisfy the Gingles
    
    threshold inquiry by demonstrating:            (1) that it is sufficiently
    
    large and geographically compact to constitute a majority in a
    
    single-member district; (2) that it is politically cohesive; and
    
    (3) that the white majority votes sufficiently as a bloc to enable
    
    it--in the absence of special circumstances--usually to defeat the
    
    minority's preferred candidate.          Gingles, 478 U.S. at 48-51.    Once
    
    the minority group satisfied the Gingles threshold inquiry, it
    
    would have to put on evidence of the totality of the circumstances
    
    to   demonstrate:     (1)   that    it   has   an   unequal   opportunity   to
    
    participate in the political process and elect representatives of
    
    its choice, see 42 U.S.C. § 1973(b); and (2) that this unequal
    
    opportunity to participate and elect is tied to race or color, see
    
    42 U.S.C. § 1973(a).    See also LULAC III, 986 F.2d at 754-55.
    
          To satisfy the third Gingles threshold requirement--i.e.,
    
    legally significant white bloc voting--I would not require minority
    
    plaintiffs to either negate partisan politics or prove racial
    
    animus in the electorate.          Rather, as I explained in my earlier
    
    opinion, minority plaintiffs would have to demonstrate "a white
    
    bloc vote that normally will defeat the combined strength of
    
    minority support plus white `crossover' votes."               LULAC III, 986
    
    F.2d at 745 (quoting Gingles, 478 U.S. at 56).                  This is not
    
    necessarily an easy burden.          Minority plaintiffs would have to
    
    demonstrate, with a fair degree of predictability, the white
    
    majority's success.    See Gingles, 478 U.S. at 51.           They could not
    
    
    
    
                                          191
    rely on the loss of an occasional election to establish legally
    
    significant white bloc voting.    See id.
    
         I would similarly look to objective factors in analyzing,
    
    under the totality of the circumstances, "the extent to which
    
    voting in the elections of the state or political subdivision is
    
    racially polarized."    S. REP. at 29, 1982 U.S.C.C.A.N. at 206.
    
    That is, I reject the argument that "racially polarized voting," as
    
    used in the Senate Report, means racially motivated voting or
    
    voting caused by racial animus in the electorate.     See LULAC III,
    
    986 F.2d at 748.   For the reasons discussed above, I also reject
    
    the majority's more strained, alternative interpretation of this
    
    requirement--that racially polarized voting is voting not caused by
    
    partisan affiliation.    Finally, although I would hold that the
    
    elections most relevant to the racial bloc voting inquiry are those
    
    in which a minority candidate opposes a white candidate, I would
    
    not characterize racially polarized voting as "the tendency of
    
    citizens to vote for candidates of their own race."   See id.   In my
    
    view, racially polarized voting is established when "there is a
    
    consistent relationship between [the] race of the voter and the way
    
    in which the voter votes, . . . or to put it differently, where
    
    [minority] voters and white voters vote differently." Gingles, 478
    
    U.S. at 53 n.21.
    
         This is not to say that the causes of racially divergent
    
    voting patterns, or voters' motivations, are irrelevant to the
    
    section 2 inquiry.     Such causes are relevant to the white bloc
    
    voting inquiry under the Gingles threshold test, but only to the
    
    
                                     192
    extent that they call into question the consistency with which the
    
    white bloc will oppose minority-preferred candidates.     See LULAC
    
    III, 986 F.2d at 745-46 n.6.73     The causes of racially divergent
    
    voting patterns are also relevant to the totality of circumstances
    
    inquiry.    If it can be shown that white voters who consistently
    
    vote against minority-preferred candidates are motivated by racial
    
    animus, such proof could be a signal of vote dilution.    See id. at
    
    753-54.    As Justice O'Connor explained in her Gingles concurrence,
    
    in "a community that is polarized along racial lines, racial
    
    hostility" may create even more of a barrier to participation in
    
    the political process.    See 478 U.S. at 100 (emphasis added).   It
    
    might, for example, affect the "likelihood that candidates elected
    
    without decisive minority support would be willing to take the
    
    minority's interests into account."     Id.   For the same reasons,
    
    proof that the white voters are not motivated by racial animus
    
         73
           I therefore agree with Justice O'Connor's position on the
    extent to which explanations for racially divergent voting
    patterns are relevant to the white bloc voting inquiry. In
    Gingles, she stated:
    
         Evidence that a candidate preferred by the minority
         group in a particular election was rejected by white
         voters for reasons other than those which made that
         candidate the preferred choice of the minority group
         would seem clearly relevant in answering the question
         whether bloc voting by white voters will consistently
         defeat minority candidates. Such evidence would
         suggest that another candidate, equally preferred by
         the minority group, might be able to attract greater
         white support in future elections.
    
    478 U.S. at 100 (emphasis added). As noted previously, see supra
    note 3, I read this passage as saying that evidence of partisan
    voting patterns that overlay racial bloc voting patterns would
    not call into question the consistent defeat of minority-
    preferred candidates.
    
                                     193
    would also be relevant to the totality of circumstances inquiry.
    
    The absence of proof of racial animus, however, should not weigh
    
    heavily against minority plaintiffs proceeding under section 2.
    
    "[B]ecause overt political racism has decreased over time, racial
    
    animus in the electorate may be difficult, if not impossible to
    
    detect."       LULAC III, 986 F.2d at 754 (citing United States v.
    
    Marengo County Comm'n, 
    731 F.2d 1546
    , 1571 (11th Cir.), cert.
    
    denied, 
    469 U.S. 976
     (1984)).
    
         By refusing to make racial animus in the electorate the focus
    
    of the vote dilution inquiry, I am not attempting to sever section
    
    2 from its constitutional underpinnings.             Minority plaintiffs
    
    ultimately have the burden, under the totality of circumstances
    
    inquiry, to demonstrate that their inability to participate in the
    
    political process and elect representatives of their choice is "on
    
    account of race or color."         See LULAC III, 986 F.2d at 754-55.
    
    This inquiry is not a narrow one that focuses on the present
    
    motivation of voters, but a blended one that focuses on the past
    
    and present reality of the local political landscape.             See S. REP.
    
    at 30, 1982 U.S.C.C.A.N. at 208 Minority plaintiffs can meet this
    
    burden by demonstrating some mix of factors under the totality of
    
    the circumstances--such as the existence of racially polarized
    
    voting,    a   history   of   official    discrimination,   the    lingering
    
    socioeconomic effects of discrimination, racial campaign appeals,
    
    and other features of the current or past racial climate.                See
    
    LULAC III, 986 F.2d at 755.
    
    
    
    
                                        194
           Unlike the majority, then, I cannot conclude that the district
    
    court clearly erred in finding legally significant white bloc
    
    voting and racially polarized voting in Texas district court
    
    elections--at least with respect to eight of the nine counties at
    
    issue in this case.        The Plaintiffs offered evidence sufficient to
    
    support the district court's findings that the white bloc vote in
    
    Bexar, Dallas, Ector, Harris, Jefferson, Lubbock, Midland, and
    
    Tarrant counties will usually defeat the minority's preferred
    
    candidate.       The Plaintiffs also offered substantial statistical
    
    evidence of racially polarized, or racially divergent, voting
    
    patterns.     The district court's findings with respect to these
    
    specific inquiries are plausible in light of the record viewed as
    
    a whole; therefore, they are not clearly erroneous.
    
           Nor can I join the majority's conclusion that the district
    
    court, by stating that the causes of racially divergent voting
    
    patterns    are    irrelevant   to     the        section   2   inquiry,   committed
    
    reversible error.         The district court was, admittedly, wrong to
    
    suggest     that    the   causes      of     racially       polarized   voting   are
    
    irrelevant; however, the evidence offered by the State of Texas in
    
    this case concerning the causes of racially divergent voting
    
    patterns is insufficient, in my view, to negate or undercut the
    
    district court's ultimate finding, in eight of the nine counties,
    
    that    blacks     and    Hispanics        have    an   unequal    opportunity   to
    
    participate in the political process and elect representatives of
    
    their choice "on account of race or color."                     See LULAC III, 986
    
    F.2d at 803-13.      The trivariate regression analyses offered by the
    
    
                                               195
    State Defendants simply do not explain why people vote the way they
    
    do.    Even under the majority's narrow view of the section 2
    
    inquiry, they do not negate "race or color" as an explanation for
    
    the inability of minorities to elect representatives of their
    
    choice.74   Moreover, as explained in LULAC III, uninformed and
    
    straight-ticket voting along party lines can, and in this case
    
    does, reinforce minority voters' unequal access to the political
    
    process.    Id. at 812.
    
          2.    Other Examples of Alterations in the Section 2 Inquiry
    
          In its efforts to overhaul section 2, the majority does not
    
    stop at reformulating the white bloc voting and racially polarized
    
    voting inquiries. It also changes--in some instances, sua sponte--
    
    the rules with respect to several other specific inquiries under
    
    the totality of the circumstances. In particular, the majority (a)
    
    now uses the lingering socioeconomic effects of discrimination as
    
    a factor arguing against a finding of vote dilution, (b) declares
    
    that the history of official discrimination against blacks and
    
    Hispanics is to be entitled to little weight, (c) makes certain
    
    factors indicative of current racial bias "particularly" important
    
    under the totality of circumstances inquiry, and (d) aggregates
    
    blacks and Hispanics in two of the counties, even though no one
    
    sought to do so in the district court.     By further altering the
    
    section 2 framework, the majority can confidently conclude that the
    
    evidence of vote dilution in this case is "weak."
    
          74
            This evidence would also, therefore, be insufficient to
    establish a "no racial bias" affirmative defense, as advocated by
    Chief Judge Tjoflat of the Eleventh Circuit. See supra note 8.
    
                                     196
               a.    Lingering socioeconomic effects of discrimination:
                     the paucity of minority lawyers
    
         The majority concludes that the Plaintiffs' vote dilution case
    
    in each of the counties is weakened by the indisputable fact that,
    
    in all of the counties, the percentage of minority lawyers is much
    
    smaller than the percentage of minority voters. The appalling lack
    
    of minority judges on the Texas district court bench does not point
    
    towards vote dilution, we are told, because "[t]he absence of
    
    eligible candidates goes a long way in explaining the absence of
    
    minority judges."    Majority Opinion at 76.    Indeed, the majority
    
    proclaims that minorities are overrepresented on the district court
    
    bench.    It argues, on the one hand, that the Voting Rights Act is
    
    "not an unbridled license--to explore for example the persistent
    
    low enrollment of black law students."         Id. at 146.   It then
    
    suggests, however, that blacks are somehow responsible for their
    
    own plight--i.e., for their persistent low enrollment in law
    
    school.   See id. at 146-47.75
    
         I cannot agree with the majority that the lack or absence of
    
    minority lawyers undercuts the Plaintiffs' vote dilution case.
    
    First, in assessing the extent to which minority candidates have
    
    been elected to public office, the appropriate comparison pool has
    
    always been the number of minorities in the population. See 42
    
    U.S.C. § 1973(b) ("The extent to which members of a protected class
    
         75
           I am referring specifically to the majority's decision to
    explore low black enrollment at Louisiana State University Law
    School. This "example" has about as much to do with this case as
    does George Wallace's decision to crown a black homecoming queen
    at halftime of a football game at the University of Alabama. See
    LULAC III, 986 F.2d at 819 (Higginbotham, J., dissenting).
    
                                     197
    have been elected to office in the State or political subdivision
    
    is one circumstance which may be considered:               Provided, That
    
    nothing in this section establishes a right to have members of a
    
    protected   class   in   numbers   equal   to   their   proportion   in   the
    
    population); see also LULAC III, 986 F.2d at 750-52.76          Second, in
    
    most of the counties at issue in this case, there are numerous
    
    minority lawyers who are well-qualified for the job of Texas
    
    district court judge.        According to the State of Texas' own
    
    exhibits, there are hundreds of eligible minority lawyers in Bexar
    
    (317 eligible Hispanics), Dallas (184 eligible blacks), and Harris
    
    counties (446 eligible blacks). There are also significant numbers
    
    of minority lawyers in several of the other counties.                As the
    
    district court correctly found, "even if there is some relationship
    
    between the low number of minority judges and the number of
    
    eligible minority lawyers, that fact does not explain why well
    
    qualified eligible minority lawyers lose judicial elections."
    
    
    
    
         76
           As the Houston Lawyers' Association noted at oral
    argument, the Voting Rights Act is not about equal employment
    opportunities; it is about the equal opportunity of voters to
    participate in the political process and elect representatives of
    their choice. In this regard, it is interesting to note that the
    majority, in proclaiming that minorities are overrepresented on
    the district court bench, frequently considers minority judges
    who were not minority-preferred candidates. In Dallas County,
    for example, the majority recites that five of the thirty-six
    district judges are black. What the majority does not say is
    that the two black judges who won partisan elections were not
    even the preferred candidates of the black community. The
    majority also ignores the fact that, at the time of trial in
    Dallas County, no black candidate with the support of the black
    community had ever won a contested election for district judge.
    See LULAC III, 986 F.2d at 785.
    
                                        198
         Even more inexcusable, however, is the majority's refusal to
    
    recognize that the comparative lack of minority lawyers constitutes
    
    evidence of the lingering socioeconomic effects of discrimination,
    
    which argues in favor of a vote dilution finding.            The Senate
    
    Report accompanying the amended section 2 instructs courts to
    
    consider "the extent to which members of the minority group in the
    
    state or political subdivision bear the effects of discrimination
    
    in such areas as education, employment, and health, which hinder
    
    their ability to participate effectively in the political process."
    
    S. REP. at 29, 1982 U.S.C.C.A.N. at 206.    The majority recognizes,
    
    as it must, that no one has "questioned [P]laintiffs' assertion
    
    that disparities between white and minority residents in several
    
    socioeconomic categories are the tragic legacies of the State's
    
    discriminatory practices." Majority Opinion at 77. The Plaintiffs
    
    introduced exhibits in each of the counties showing that minorities
    
    lag unreasonably behind whites in terms of income, education, and
    
    employment.    Along these lines, it cannot seriously be disputed
    
    that the lack of eligible minority lawyers is in no small part the
    
    result    of   past   racial   discrimination   in   Texas    schools--
    
    discrimination that remains unremedied in some cases even to this
    
    day.77
    
         77
            For most of its history, Texas has maintained--at all
    levels--a racially discriminatory education system. See, e.g.,
    Sweatt v. Painter, 
    339 U.S. 629
     (1950) (holding that the
    University of Texas Law School's racially discriminatory
    admittance policy violated the Equal Protection clause of the
    Fourteenth Amendment). This system of dual schools, which were
    undoubtedly separate and unequal, began to be remedied as early
    as 1960 in the Houston public school system. See Houston Indep.
    Sch. Dist. v. Ross, 
    282 F.2d 95
     (5th Cir. 1960) (affirming
    
                                      199
        Nor   can   one   seriously     dispute   that   this     lingering
    
    socioeconomic effect of discrimination hinders the ability of
    
    minorities to participate in the political process.         Contrary to
    
    
    
    
    district court order which required desegregation of schools to
    begin in September 1960); see also Flax v. Potts, 
    464 F.2d 865
    ,
    867 (5th Cir.) (noting that Fort Worth Independent School
    District had official policy of segregation until 1967), cert.
    denied, 
    409 U.S. 1007
     (1972). Other communities, however, began
    dismantling their dual school systems at a much later date. See
    United States v. CRUCIAL, 
    722 F.2d 1182
     (1983) (affirming
    district court's finding that Ector County engaged in intentional
    segregation of black and Hispanic students, which extended into
    the 1981-82 school year); Graves v. Barnes, 
    378 F. Supp. 640
    , 648
    (W.D. Tex. 1974) (three-judge court) (finding that twenty years
    after the Supreme Court's decision in Brown v. Board of
    Education, 
    347 U.S. 483
     (1954), the Beaumont Independent School
    District continued to bus black children away from their
    neighborhood schools and across town to all-black schools),
    vacated sub. nom. White v. Regester, 
    422 U.S. 935
     (1975); id. at
    654-55 (recognizing that authorities in Lubbock County maintained
    racially and ethnically segregated schools until the 1970's). As
    a result of these desegregation efforts, many of the school
    districts that were under court supervision for some twenty years
    finally achieved unitary systems during the 1980's. See, e.g.,
    United States v. Texas Educ. Agency, 
    138 F.R.D. 503
    , 505 (N.D.
    Tex. 1991) (noting that Lubbock Independent School District was
    declared to be a unitary system in May 1988), aff'd, 
    952 F.2d 399
    (5th Cir. 1991), cert. denied, 
    112 S. Ct. 2992
     (1992); Flax v.
    Potts, 
    725 F. Supp. 322
    , 330 (N.D. Tex. 1989) (declaring Fort
    Worth Independent School District to be unitary), aff'd, 
    915 F.2d 155
     (5th Cir. 1990); Covington v. Beaumont Indep. Sch. Dist., 
    714 F. Supp. 1402
    , 1404 (E.D. Tex. 1989) (noting that Beaumont
    Independent School District was declared unitary in 1984). The
    only notable exception in this regard is the Dallas public school
    system, which continues to be under court supervision. See Tasby
    v. Edwards, 
    807 F. Supp. 421
     (N.D. Tex. 1992)
         The point of this discussion is that many minorities
    residing in the target counties at issue in this case--especially
    those who are forty or older--attended segregated schools. This
    is precisely the age group from which one would expect state
    district court judges to be drawn. How one can say that this
    past discrimination does not hinder the current ability of blacks
    and Hispanics to participate in the political process involving
    the election of state district court judges escapes me.
    
                                      200
    the majority's suggestions otherwise,78 "[t]he requirement that the
    
    political processes leading to nomination and election be `equally
    
    open' to participation by the group in question extends beyond
    
    formal or official bars to registering and voting, or [even] to
    
    maintaining a candidacy." Id. at 30, 1982 U.S.C.C.A.N. at 208
    
    (emphasis added); see also Shaw v. Reno, 
    113 S. Ct. 2816
     (1993)
    
    (noting that the success of the Voting Rights Act of 1965 in
    
    reducing the spread between black and white voter registration did
    
    not suffice to root out other racially discriminatory voting
    
    practices, such as multi-member or at-large electoral systems);
    
    Reynolds v. Sims, 
    377 U.S. 533
    , 555 n.29 (1964) ("There is more to
    
    the right to vote than the right to mark a piece of paper and drop
    
    it in a box or the right to pull a lever in a voting booth.").
    
    That is, the question of whether the lingering socioeconomic
    
    effects of discrimination hinder the ability of minorities to
    
    participate in the political process is much broader than asking
    
    whether they register and vote at rates equal to whites.    See S.
    
    REP. at 6, 1982 U.S.C.C.A.N. at 183 (noting that "registration is
    
    only the first hurdle to full effective participation in the
    
         78
           The majority holds that Plaintiffs can only show
    depressed political participation by pointing to low voter
    registration or low voter turnout rates. Based on this holding,
    it reverses as clearly erroneous the district court's finding
    that blacks and Hispanics throughout the State of Texas continue
    to bear the effects of past discrimination, which hinder their
    ability to participate in the political process. Thus, while the
    majority uses the lack of minority lawyers against the Plaintiffs
    with respect to the inquiry into the number of minority judges,
    it ignores the lack of minority lawyers on the question of
    whether the lingering socioeconomic effects of discrimination
    hinder the ability of blacks and Hispanics to participate in the
    political process. This is absurd.
    
                                   201
    political process"); id. at 30 n.120, 1982 U.S.C.C.A.N. at 208
    
    n.120 ("[T]he conclusion . . . that in fact [minorities] ha[ve]
    
    registered and voted without hindrance" is not dispositive under
    
    section 2).        One aspect of the ability to participate in the
    
    political process must surely include the ability to run for the
    
    office, and as long as minorities continue to bear the effects of
    
    past discrimination in education and employment, their ability to
    
    participate in the Texas district court political process will be
    
    severely hindered.         See TEX. CONST. art. V, § 7 (establishing
    
    eligibility requirements for district court judges).
    
         Thus, like the majority, I would hold that the relative lack
    
    of eligible minority candidates is relevant to the section 2
    
    inquiry.        Unlike the majority, however, this indisputable fact
    
    would     not   argue   against   a   finding   of   dilution;    it   would   be
    
    compelling evidence of the extent to which blacks and Hispanics
    
    continue to "bear the effects of discrimination in such areas as
    
    education [and] employment, . . . which hinder their ability to
    
    participate effectively in the political process."               S. REP. at 29,
    
    1982 U.S.C.C.A.N. at 206.79
    
         79
           There is also testimony in the record suggesting that the
    ability of minorities to run in county-wide elections is hampered
    by their lack of financial resources. The majority, after
    weighing this evidence with other evidence suggesting that
    minorities were able to raise funds, finds that minorities were
    able to run well-financed campaigns. It thus concludes that the
    testimony from several witnesses about minority candidates' lack
    of financial resources does not support the district court's
    finding that the lingering socioeconomic effects of
    discrimination hinder the ability of minorities to participate
    effectively in district court elections. I disagree. In my
    view, the testimony of these witnesses, as well as Dr.
    Brischetto's expert testimony on the subject, provide further
    
                                           202
                 b.     Past official discrimination
    
          The    majority       also   suggests     that    the    long    history    of
    
    discrimination against blacks and Hispanics in Texas is entitled to
    
    little, if any, independent weight under the totality of the
    
    circumstances.          The majority recognizes that "Texas' long history
    
    of discrimination against its black and Hispanic citizens in all
    
    areas of public life is not the subject of dispute."                      Majority
    
    Opinion     at    77.     However,   in    discussing    the   totality     of    the
    
    circumstances in its application of the law to each county, the
    
    majority brushes over this history as if it were somehow irrelevant
    
    to the section 2 inquiry.            I cannot join this decision to amend
    
    section 2.
    
          The Senate Report specifically instructs courts to consider,
    
    as an independent factor under the totality of the circumstances,
    
    "the extent of any history of official discrimination in the state
    
    or political subdivision that touched the right of the members of
    
    the   minority      group     to   register,    to     vote,   or     otherwise    to
    
    participate in the political process."                   S. REP. at 28, 1982
    
    U.S.C.C.A.N. at 206.         By including this factor as a signal of vote
    
    dilution, Congress made a legislative decision, which we must
    
    
    
    support for the district court's finding in this regard.
         Moreover, as I noted in my earlier opinion, the issue of
    whether blacks and Hispanics continue to suffer the effects of
    discrimination--effects that hinder their ability to participate
    in the political process--was not a contested issue at trial and
    has not been pursued by the parties on appeal. See LULAC III,
    986 F.2d at 782-83 n.41. The majority's decision to pursue this
    issue and reverse the district court's finding on clearly
    erroneous grounds is, thus, a further indication of its
    insistence on cleaning up--or cleaning out--section 2.
    
                                              203
    respect, that evidence of past discrimination--even standing alone-
    
    -is a   factor   pointing   toward    vote       dilution   under   section   2.
    
    Indeed, in amending section 2 and enacting the results test,
    
    Congress intended to remedy past discrimination.                  It expressly
    
    found   "that    voting     practices       and     procedures      that   have
    
    discriminatory results perpetuate the effects of past purposeful
    
    discrimination."    Id. at 40, 1982 U.S.C.C.A.N. at 218 (emphasis
    
    added). The majority effectively ignores this legislative decision
    
    by requiring Plaintiffs to demonstrate that the effects of past
    
    discrimination   "actually    hamper       the   ability    of   minorities   to
    
    participate."    Majority Opinion at 77.
    
         The majority thus attempts, in the words of Charles Black,
    
    Jr., to "uncouple present from past."             Charles L. Black, Jr., And
    
    Our Posterity, 102 YALE L. J. 1527, 1529 (1993). As Professor Black
    
    aptly observes, however,
    
              This disconnection of present from past . . . cannot
         be made to seem successful today, any more than in 1883.
         American slavery lasted more than two centuries, not too
         far from twice the time since its abolition.         Even
         abolition was not the end. Quite soon after the Civil
         War, the national effort to remedy the situation of the
         newly free was as good as abandoned; in the places where
         most of them lived they were not even so much as allowed
         to vote in the only election that counted; per capita
         public expenditures in public schools for their children
         ran far below--sometimes by a factor of one to ten--
         expenditure in white schools. The paradox of "separate
         but equal," improvised--like the white primary--with a
         broad knowing wink, not only imprisoned black people in
         these schools, but also cut off all black people,
         children and grown-ups, from any kind of equal
         participation in the common life of the community.
    
    Id. at 1529-30; see also supra note 15.
    
    
    
    
                                         204
         The simple fact is that blacks and Hispanics in Texas have
    
    indisputably been the victims of official discrimination in all
    
    areas of life. The district court was warranted in taking judicial
    
    notice of this history, and in giving it weight in deciding whether
    
    the Plaintiffs demonstrated an inability to participate in the
    
    political process and elect representatives of their choice "on
    
    account of race or color."   For the majority to suggest otherwise
    
    is to "publish a general Act of Oblivion."    Black, supra, at 1530.
    
    I will not join such an act.
    
              c.   The elevation of several factors under the totality
                   of circumstances inquiry
    
         The majority further reveals its intent to shift the focus of
    
    the section 2 inquiry by elevating certain factors under the
    
    totality of the circumstances.   In particular, the majority states
    
    that, in determining the strength of a vote dilution case, courts
    
    must consider, among other things:     the willingness of the racial
    
    or ethnic majority to give their votes to minority candidates of
    
    their own party; whether the minority plaintiffs have found proof
    
    of racial campaign appeals; and whether elected officials were
    
    found to be non-responsive to the needs of minority voters.
    
         These factors are undoubtedly relevant to the section 2
    
    inquiry, but to elevate them, as the majority does, changes the
    
    focus of the analytical framework. All of them--the willingness of
    
    white voters to vote for minority candidates of their own race,80
    
         80
           In reversing the district court's findings of vote
    dilution, the majority places heavy emphasis on the fact that, in
    several of the counties, white majorities voted for Republican
    minority judicial candidates. It also creates the impression
    
                                     205
    the existence of racial campaign appeals, and the responsiveness of
    
    elected officials--are concerned primarily with current racial
    
    animus in either the electorate, in candidates, or in elected
    
    officials.     In my view, current racial hostility is not the
    
    ultimate focus of section 2.    See supra Part I.A.1.c.
    
           Moreover,   elevating   these   factors   ignores   Congress'
    
    instructions in the Senate Report that "there is no requirement
    
    that any particular number of factors be proved, or that a majority
    
    point one way or the other."    S. REP. at 29, 1982 U.S.C.C.A.N. at
    
    207.   In particular, it ignores the statement in the Senate Report
    
    that "[u]nresponsiveness is not an essential part of plaintiff's
    
    case.").     Id. at 29 n.116; 1982 U.S.C.C.A.N. at 207; see also
    
    
    that the Republican Party aggressively recruited minority
    candidates in all of the counties at issue. Majority Opinion at
    63. This picture is not entirely accurate.
         While there was evidence in Dallas County that two black
    Republican district court candidates were elected with the
    support of the white majority, there was also expert testimony,
    based on a telephone survey, that most voters in Dallas County
    had absolutely no idea of the race of the candidate for whom they
    were voting. At most, then, this evidence shows that white
    voters in Dallas County could not have been motivated by specific
    racial animus toward candidates. But this is only because of the
    so-called anonymity factor. There was also, admittedly, evidence
    suggesting that the Republican Party in Dallas County attempted
    to recruit minority candidates.
         As for the other counties, however, there is little, if any
    evidence that white majorities would support Republican minority
    candidates in district court elections. This is because, as best
    I can tell from the record: (1) in Harris County, only one black
    Republican district court candidate won a contested district
    court election; (2) in Bexar County, only one Hispanic Republican
    won a contested district court election; and (3) in Tarrant
    County, only one black Republican won a contested district court
    election. This lack of Republican minority district court
    candidates also calls into question the majority's assertion that
    the Republican Party actively recruited minority candidates in
    other counties. There is very little evidence of any such
    recruitment in counties other than Dallas.
    
                                     206
    United States v. Marengo County Comm'n, 731 F.2d at 1571 (The
    
    absence of racial campaign appeals "should not weigh heavily
    
    against a plaintiff proceeding under the results test of section
    
    2."). Unlike the majority, then, I would not elevate these factors
    
    under the section 2 inquiry.
    
              d.    Forcing minority groups to proceed as a coalition
    
         Finally, the majority demonstrates the extent to which it will
    
    go to overhaul section 2 (and to preserve Texas' method for
    
    electing district court judges) by holding that the district court
    
    clearly erred   in   refusing   to    give   equal   weight   to   elections
    
    involving whites and Hispanics in Harris and Tarrant counties.           In
    
    both of these counties, Plaintiffs proceeded only on behalf of
    
    black voters.   The majority, noting that political cohesion is a
    
    "question of fact" and not a strategic card, makes a finding of
    
    fact on appeal that blacks and Hispanics in these two counties are
    
    politically cohesive.   It makes this fact finding even though the
    
    parties never requested the district court to do so.81
    
         81
           Indeed, as I noted in my earlier opinion in this case,
    with respect to Harris County, the parties specifically argued in
    the district court (and requested a fact finding) that "Blacks
    and Hispanics together in Harris County do not constitute a
    politically cohesive minority group." See LULAC III, 986 F.2d at
    789. And in Tarrant County, no party ever requested a fact
    finding that blacks and Hispanics are politically cohesive. See
    id. at 799-800 n.49.
         The majority asserts that the parties' failure to request a
    finding on the question of whether blacks and Hispanics in Harris
    and Tarrant counties is beside the point. It argues that the
    claim raised on appeal is that the district court improperly
    refused to consider elections involving Hispanic candidates,
    elections studied by the State of Texas' own expert. This latter
    question, the majority asserts, "is most assuredly before" this
    court. I disagree.
         The State of Texas, in a reply brief to the original panel
    
                                         207
         By making this finding, the majority shows a complete lack of
    
    judicial restraint.    Regardless of what one thinks about allowing
    
    various minority groups to voluntarily combine themselves for
    
    section 2 purposes,82 it is clear that, if such coalition minority
    
    groups are permitted, "proof of minority political cohesion is all
    
    the more essential."    Growe v. Emison, 113 S. Ct. at 1085.   In my
    
    view, it is not within the power of a federal appellate court to
    
    make this fact finding--especially where none was requested below.
    
    
    that heard this case in 1990, raised this issue for the first
    time on appeal. It asserted:
    
         If [a coalition of blacks and Hispanics] can be proved
         by voting rights plaintiffs in order to help them meet
         the first two Gingles preconditions, what prevents
         voting rights defendants from proving the existence of
         such a de facto coalition in order to shed light on
         whether the third Gingles precondition can be met? The
         district court denied the State Officials that
         opportunity in the targeted counties, including Harris
         and Tarrant Counties, by treating as irrelevant the
         numerous races analyzed there involving Anglo judicial
         candidates versus Hispanic judicial candidates . . . .
    
    Thus, the defendants "raised" this issue by asking a rhetorical
    question in a reply brief. Even if there were nothing to prevent
    voting rights defendants from proving the existence of a de facto
    coalition between blacks and Hispanics in Harris and Tarrant
    counties, the problem with the argument is that the State of
    Texas simply did not seek to prove this fact in front of the
    district court and, with regard to Harris County, expressly
    requested a fact finding to the contrary.
         82
           The majority curiously does not feel the need to revisit
    our decision in Campos v. City of Baytown, 
    840 F.2d 1240
    , 1244
    (5th Cir. 1988), cert. denied, 
    492 U.S. 905
     (1988)--despite the
    fact that several of my colleagues obviously disagree with the
    principle of allowing minorities to proceed as a coalition under
    section 2. See Campos v. City of Baytown, 
    849 F.2d 943
     (5th Cir.
    1988) (Higginbotham, J., joined by Gee, Garwood, Jolly, Davis,
    and Jones, JJ., dissenting from denial of rehearing en banc);
    League of United Latin American Citizens, Council No. 4386 v.
    Midland Indep. Sch. Dist., 
    812 F.2d 1494
    , 1503 (5th Cir. 1987)
    (Higginbotham, J., dissenting).
    
                                     208
         3.     The Result of the Majority's Handiwork
    
         In sum, I reject the majority's characterization of the
    
    evidence of vote dilution offered in this case.           It can only be
    
    characterized as weak by altering the section 2 inquiry, which the
    
    majority does freely.      No longer is the inquiry a blended one,
    
    which looks to the past and present reality of the local political
    
    landscape.    It is now a selective inquiry into the present.             I
    
    cannot join this restructuring of the section 2 inquiry.
    
    B.   The Weight of the State of Texas' Interest in Maintaining the
         Current Electoral System
    
         Nor can I join the majority in its conclusion that the State
    
    of Texas' interest in maintaining its current system--specifically,
    
    its interest in linking electoral base to "primary jurisdiction"--
    
    is substantial enough to outweigh the Plaintiffs' proof of vote
    
    dilution.    This interest is little more than tenuous and could not
    
    outweigh even weak evidence of vote dilution.
    
         The majority argues that Texas links the primary jurisdiction
    
    of its district courts with their electoral base in order to
    
    preserve the values of independence and accountability.             This so-
    
    called linkage interest, we are told, is substantial, because it
    
    represents the State of Texas' decision about what constitutes a
    
    state district judge.       According to the majority, by linking
    
    district    judges'   electoral   base   with   their   area   of   primary
    
    jurisdiction, the State of Texas has made a decision similar to the
    
    State of Missouri's decision in Gregory v. Ashcroft, 
    111 S. Ct. 2395
     (1991), to have age qualifications for its judges.
    
    
    
                                       209
          Assuming arguendo that we are supposed to weigh non-tenuous
    
    state interests against proven vote dilution,83 there are several
    
    flaws in the majority's analysis of the strength of Texas' linkage
    
    interest.       First, I remain unconvinced that Texas insists on
    
    linking "primary jurisdiction" with electoral base. Also, there is
    
    a   serious     question   as   to    whether      this   linking    of   primary
    
    jurisdiction with electoral base actually promotes the values of
    
    independence and accountability.           Finally, Texas' linkage interest
    
    can be equally served by other means, means that would not dilute
    
    minority voting strength. Once these analytical flaws are exposed,
    
    it becomes clear that Texas' decision to link electoral base with
    
    primary    jurisdiction    is   not   at     all   comparable   to   Missouri's
    
    decision in Gregory to have age limits for its trial judges.
    
          1.      Questioning Texas' Insistence on Linkage
    
          The majority concludes that the State of Texas does in fact
    
    link the primary jurisdiction of state district court judges with
    
    their electoral base.      In doing so, it ignores that the concept of
    
    "primary jurisdiction" is found nowhere in Texas law.                     It also
    
    
    
    
          83
            Before the Supreme Court's decision in Houston Lawyers'
    Association v. Attorney General of Texas, 
    111 S. Ct. 2376
     (1991),
    courts considered, in the liability phase of a section 2 case,
    only whether the state's interest in the current electoral scheme
    was tenuous. Although I have some questions as to whether the
    Court, in Houston Lawyers' Association, meant to change the
    inquiry and require proven vote dilution to be balanced against
    non-tenuous state interests, see LULAC III, 986 F.2d at 757-64, I
    recognize that the Court's opinion in that case can be read to
    require such balancing. See also Robert B. McDuff, Judicial
    Elections and the Voting Rights Act, 38 LOY. L. REV. 931, 958-60
    (1993).
    
                                           210
    ignores that any historical insistence on "linkage" has been
    
    seriously undermined in recent years--and in recent weeks.
    
         As discussed in my earlier opinion, state district judges in
    
    Texas do not have "primary jurisdiction" that is co-extensive with
    
    a county.       See LULAC III, 986 F.2d at 767; see also McDuff, supra
    
    note 21, at 956-57.        They may have primary venue responsibility
    
    that coincides with county lines, but a state district judge has
    
    state-wide jurisdiction.        See TEX. CONST. art. V, § 8.     For example,
    
    a state district judge elected only by the voters of Travis County
    
    has the power to declare unconstitutional the entire state's method
    
    of financing public schools.            See Edgewood Indep. Sch. Dist. v.
    
    Kirby,    
    777 S.W.2d 391
       (Tex.    1989)   (affirming    trial   court's
    
    decision).      Thus, it is misleading for the majority to insist that
    
    Texas links the "primary jurisdiction" of district court judges
    
    with their electoral base.        Indeed, the very opposite is the case:
    
    a Texas district judge's jurisdiction extends far beyond his or her
    
    electoral base.       The majority is saying no more than that Texas'
    
    electoral districts, which are no smaller than a county, usually
    
    coincide with the venue unit under Texas law, which is also the
    
    county.
    
         Moreover, Texas does not insist that its district judges be
    
    elected from an area no smaller than a county.                Since 1985, the
    
    Texas Constitution has specifically authorized the voters of a
    
    county to decide to elect their district judges from an area
    
    smaller than a county.          See TEX. CONST. art. V, §§ 7, 7a.        Texas
    
    also makes extensive use of visiting and retired judges, thus
    
    
                                            211
    indicating its willingness to use judges who either were not
    
    elected at all or whose electoral base is not at all linked to some
    
    amorphous concept of "primary jurisdiction."         See LULAC III, 986
    
    F.2d at 768.   Also relevant in this regard is the State of Texas'
    
    willingness to settle this lawsuit, which is discussed more fully
    
    in Part II infra.    The Governor, the Attorney General, and the
    
    elected representatives    of   the   people   of   the   state   have   all
    
    expressed approval of a settlement calling for the election of
    
    district judges from areas that are smaller than a county.           These
    
    recent events undoubtedly call into question the State of Texas'
    
    insistence on linkage.
    
         2.   Questioning the Value of Linkage
    
         Even if the State of Texas did consistently link a district
    
    judge's electoral base with venue, there is a serious question as
    
    to whether such insistence on linkage would in fact advance Texas'
    
    interests in judicial accountability and independence. The reality
    
    is that Texas's venue rules do not, and were not meant to, ensure
    
    the accountability of judges.      Moreover, there are flaws in the
    
    assumptions underlying majority's assertion that linkage serves to
    
    advance the independence and fairness of district judges.
    
         I do not see, and the majority does not explain, how linking
    
    electoral base with venue advances the State of Texas' interest in
    
    judicial accountability.   If linkage did advance such an interest,
    
    one might expect the state's venue rules to reflect this purpose.
    
    As previously noted, however,
    
         The Texas venue rules have not been drafted to insure
         that parties appear before judges for whom they have had
    
                                      212
           an opportunity to vote. Instead, the venue rules for
           lawsuits involving living persons. . . "were, in the
           main,   manifestly    adopted   to    prevent   serious
           inconveniences and probable injury to defendants. . . .
           Snyder v. Pitts, 
    150 Tex. 407
    , 
    241 S.W.2d 136
    , 142
           (1951).
    
    LULAC III, 986 F.2d at 768.             Moreover, given the unusually large
    
    size of the election districts in several of the counties at issue
    
    in this case, it strains credibility to maintain that linkage
    
    advances the state's interest in judicial accountability.                           As
    
    several of the defense witnesses at trial testified, most people
    
    have   no    idea   of   who    they    are     voting    for   in   district   court
    
    elections.        These observations suggest that linkage in the large
    
    counties at issue in this case, rather than advancing the value of
    
    judicial accountability, actually detracts from it.                   See also H.J.
    
    of TEX, 73d Leg., R.S. 479, 482 (1993) (Address of Chief Justice
    
    Thomas R. Phillips) (arguing that retention elections should be
    
    used to enhance the accountability of judges and suggesting that,
    
    under the current system, "the people have no meaningful vote").
    
           As for the State of Texas' interest in judicial independence,
    
    linkage advances it, if at all, only marginally.                       What ensures
    
    judicial independence are the integrity of individual judges and
    
    the Texas Code of Judicial Conduct, which directs judges not to be
    
    swayed      "by   partisan      interests,       public    clamor,     or   fear   of
    
    criticism."       TEX. CODE    OF   JUDICIAL CONDUCT, Canon 3, pt. A(1).           The
    
    argument that linkage advances the State of Texas' interest in
    
    judicial independence is, at bottom, a smokescreen:                     It suggests
    
    that district judges who are currently elected by white majorities,
    
    often with the substantial support of plaintiffs' lawyers, defense
    
                                              213
    lawyers, or some other interest group, are responsive to the needs
    
    of all voters in the county--including minority voters.                 Yet it
    
    assumes that a judge elected from a majority-minority district
    
    would somehow be less willing to follow his or her oath or to be
    
    responsive to the needs of all.         There is absolutely no evidence in
    
    the record to support such an assumption.              See also McDuff, supra
    
    note 21, at 949 ("Of course, absolutely no reason exists to believe
    
    that black judges elected from majority black districts or Hispanic
    
    judges elected from majority Hispanic districts will be any more
    
    `partisan advocates' than the white judges presently elected from
    
    majority white districts.").
    
         3.        The Existence of Less Intrusive Means
    
         Finally, Texas' linkage interest is weakened by the existence
    
    of less intrusive means.           I am referring specifically to the
    
    possible use of limited or cumulative voting.                   Both of these
    
    methods of election would preserve the link, to the extent there is
    
    any, between a district judge's electoral base and his or her area
    
    of primary venue responsibility.          It would also serve, at least to
    
    the same extent as the current method of electing judges, Texas'
    
    interests in having accountable and independent judges.
    
         The majority's refuses to consider cumulative and limited
    
    voting    as    a   less   intrusive   means.     It   argues   that,   because
    
    "[l]imited and cumulative voting are election mechanisms that
    
    preserve at-large elections," they "are not `remedies' for the
    
    particular structural problem that the plaintiffs have chosen to
    
    attack."       Majority Opinion at 103.         Thus, the majority decides,
    
    
                                           214
    "[w]e will not discount [the state's] interest based upon purported
    
    remedies that preserve the challenged at-large scheme."              Id.
    
         The majority misses the point.         The Plaintiffs in this case
    
    allege that Texas' current method of electing district judges in
    
    county-wide elections dilutes their voting strength.            Contrary to
    
    the majority's      hypertechnical    argument,   cumulative    or    limited
    
    voting would remove the dilutive aspect of the current at-large
    
    system, which is what the Plaintiffs are challenging.                That it
    
    would     also   preserve   county-wide    elections   merely    serves    to
    
    demonstrate that it is a less intrusive means for advancing Texas'
    
    asserted interests. The majority's refusal to consider these other
    
    means, in determining the weight of the state's interests, is
    
    indefensible.84
    
         4.      The Nature of Texas' Linkage Interest
    
         Contrary to the majority's assertions, Texas' interest in
    
    linking the electoral base of its judges with venue is not a
    
    decision about what constitutes a state district court judge;
    
    indeed, it is nothing more than a decision about how to elect
    
    district court judges.        The state's insistence on linking the
    
    electoral base of district judges with their area of primary venue
    
    
         84
           Even Chief Justice Phillips has publicly recognized that
    a system using limited and cumulative voting could remedy the
    dilutive aspect of Texas' current at-large election system. In
    his recent State of the Judiciary Address, he noted that
    "[m]inority voters could be protected by any method which permits
    votes to be aggregated or limits each voter to fewer votes than
    the number of positions to be filled." H.J. OF TEX., 73d Leg.,
    R.S. 479, 483 (1993). He further stated that, "[w]hile little
    used in judicial elections, such procedures have long been used
    in both public and private elections around the world." Id.
    
                                         215
    responsibility has, in recent years and recent weeks, almost
    
    evaporated, and there are serious doubts as to whether linkage in
    
    fact    advances    the     values     of    judicial    accountability      and
    
    independence.      Further, there are other means to preserve the so-
    
    called linkage interest.        Unlike the majority, then, I cannot say
    
    that the State of Texas' interest in linkage--which is simply a
    
    short-hand way of referring to its interest in maintaining the
    
    status quo--is anything like Missouri's decision in Gregory about
    
    the qualifications of a state judge.
    
           I would therefore hold that the state's interest in linking
    
    the    electoral   base    of   its    judges   with    their   primary    venue
    
    responsibility,     allegedly     to   foster   judicial    independence     and
    
    accountability, is little more than tenuous. At best, the argument
    
    is about appearances.       At worst, it exhibits an unfounded fear of
    
    having judges elected from majority-minority districts.                   In any
    
    event, the majority's conclusion that this interest is substantial
    
    is not founded in the record, in Texas law, or in reality.                    It
    
    could not outweigh the evidence of vote dilution in this case even
    
    if that evidence were only weak, which it manifestly is not.
    
    
    
                              II.   THE MOTION TO REMAND
    
           Given the majority's misguided and destructive efforts on the
    
    merits of this case, one might reasonably ask why the Plaintiffs
    
    and the State of Texas, acting through its Attorney General, were
    
    not given the opportunity to settle this dispute.                The majority
    
    offers three reasons: First, the majority suggests that the motion
    
    
                                           216
    to remand should be denied because the Texas Attorney General is
    
    somehow acting beyond the scope of his authority.      The majority
    
    also makes a related argument that the motion must be denied
    
    because not all of the "defendants" have consented to the remand or
    
    to the proposed settlement.     Finally, the majority declines to
    
    remand for a hearing on the proposed settlement on the ground that
    
    the settlement is inconsistent with state law.
    
         As explained below, none of the reasons proffered by the
    
    majority precludes a remand for purposes of conducting a settlement
    
    hearing.   That is, the majority could have easily remanded this
    
    case, but chose not to because it wanted to reach the merits of
    
    this case and overhaul the Voting Rights Act.      I cannot embrace
    
    such reasoning.
    
    A.   Does the Attorney General Have the Authority to Settle this
         Lawsuit?
    
         In suggesting that the Texas Attorney General is acting beyond
    
    the scope of his authority by agreeing to the proposed settlement
    
    and requesting a remand, the majority misperceives the nature of
    
    the Attorney General's status in this lawsuit.        That is, the
    
    majority treats the Attorney General as just another lawyer who is
    
    representing the various officials named as defendants.         The
    
    Attorney General, however, is not just another lawyer; he is also
    
    a named defendant, as well as the chief legal officer for the State
    
    of Texas in this litigation.   As such, he had the power under Texas
    
    law to negotiate and execute the proposed settlement and to request
    
    a remand of this case.
    
    
    
                                     217
         1.   The Nature of this Lawsuit
    
         The majority correctly notes that the Plaintiffs in this case
    
    filed suit   against   the   Attorney   General   of   Texas,   the   Texas
    
    Secretary of State, and the members of the Texas Judicial Districts
    
    Board (including the Board's chairman, Chief Justice Phillips).
    
    These defendants were not named in their individual capacities, but
    
    only in their official capacities.      The Plaintiffs were apparently
    
    required to do this under the Supreme Court's Eleventh Amendment
    
    jurisprudence--specifically, under the fiction of Ex Parte Young,
    
    
    209 U.S. 123
     (1908), which holds that a suit for declaratory and
    
    injunctive relief against state officers does not constitute a suit
    
    against the state for Eleventh Amendment immunity purposes.85
    
         85
           The general rule is that, for purposes of determining
    whether a suit in federal court is barred by the Eleventh
    Amendment, an official-capacity lawsuit is a suit against the
    state itself rather than a suit against the named official. In
    Kentucky v. Graham, 
    473 U.S. 159
    , 165-66 (1985), the Court
    explained:
    
         Personal-capacity suits seek to impose personal
         liability upon a government official for actions he
         takes under color of state law. See, e.g., Scheuer v.
         Rhodes, 
    416 U.S. 232
    , 237-38 (1974). Official-capacity
         suits, in contrast, "generally represent only another
         way of pleading an action against an entity of which an
         officer is an agent." Monell v. New York City Dept. of
         Social Services, 
    436 U.S. 658
    , 690 n.55 (1978). As
         long as the government entity receives notice and an
         opportunity to respond, an official-capacity suit is,
         in all respects other than name, to be treated as a
         suit against the entity. Brandon [v. Holt, 
    469 U.S. 464
    , 471-72 (1985)]. It is not a suit against the
         official personally, for the real party in interest is
         the entity.
    
    (emphasis in original). Official-capacity lawsuits, because they
    are in essence lawsuits against the state, are generally barred
    by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. at
    167 n.14 ("Unless a State has waived its Eleventh Amendment
    
                                      218
         Jurisdictional fictions notwithstanding, I would hold that, at
    
    least for purposes of determining whether this case should be
    
    remanded, this is a suit against the State of Texas itself.
    
    Indeed, in one of our previous opinions, we recognized that the
    
    Plaintiffs sued "Texas through its officials."        League of United
    
    Latin American Citizens, Council No. 4434 v. Clements, 
    923 F.2d 365
    , 367 (5th Cir. 1991) (Gee, J.) (en banc); see also id. (again
    
    recognizing that the "defendant" in this case is "the state").
    
    Given the fact that section 2 only prohibits a "State or political
    
    subdivision"   from   employing    certain   voting    practices   and
    
    procedures, see 42 U.S.C. § 1973(a), our recognition that this
    
    lawsuit was in all aspects (other than for Eleventh Amendment
    
    
    
    immunity or Congress has overridden it, . . . a State cannot be
    sued directly in its own name regardless of the relief sought.")
    (citing Alabama v. Pugh, 
    438 U.S. 781
     (1978)).
         There is an exception to this rule. Specifically, "[i]n an
    injunctive or declaratory action grounded on federal law, the
    State's immunity can be overcome by naming state officials as
    defendants." Kentucky v. Graham, 473 U.S. at 169 n.18. As the
    Supreme Court itself has recognized, this exception is based
    purely upon a legal fiction. See, e.g., Pennsylvania v. Union
    Gas Co., 
    491 U.S. 1
    , 26 (1989) (recognizing that Ex Parte Young
    established a "fiction"); Cory v. White, 
    457 U.S. 85
    , 95 (1982)
    (referring to "fiction of Ex Parte Young"); Pennhurst State
    School & Hosp. v. Halderman, 
    465 U.S. 89
    , 105 (1984) (same).
    Under this fiction, because state officers have no authority to
    violate federal law, their illegal acts, although qualifying as
    "state action," are not "acts of the state"; therefore suits to
    enjoin those acts or to declare them illegal are not precluded by
    the Eleventh Amendment. See Young, 209 U.S. at 159-60. Thus,
    under the Young fiction, "official capacity actions for
    prospective relief are not treated as actions against the State"
    for purposes of the Eleventh Amendment. Kentucky v. Graham, 473
    U.S. at 167 n.14. But see also Diamond v. Charles, 
    476 U.S. 54
    ,
    57 n.2 (1986) (noting, in context of suit against state officials
    for declaratory and injunctive relief, that "[a] suit against a
    state officer in his official capacity is, of course, a suit
    against the State").
    
                                      219
    purposes) filed against the State of Texas was entirely warranted.
    
    See also League of United Latin American Citizens, Council No. 4434
    
    v. Clements, 
    884 F.2d 185
    , 189 (5th Cir. 1989) ("A voting rights
    
    case challenges the election process rather than the individuals
    
    holding offices.") (emphasis added).
    
         This case is not, therefore, like Public Utility Comm'n of
    
    Texas v. Cofer, 
    754 S.W.2d 121
     (Tex. 1988), where the Attorney
    
    General's clients--two state agencies which he was obligated to
    
    represent under separate statutes86--were on opposing sides of
    
    litigation in state court.   Thus, it is not a case where we must be
    
    concerned with possible conflicts of interest.      See id. at 125.
    
    Rather, this is a case in which certain officials were named as
    
    "jurisdictional parties."    See Bullock v. Texas Skating Ass'n, 
    583 S.W.2d 888
    , 894 (Tex. Civ. App.--Austin 1979, writ ref'd n.r.e.).
    
    In short, I think that the Attorney General's client in this case
    
    is the State of Texas--not the various officials who were joined
    
    solely for Eleventh Amendment purposes.
    
         2.   The Attorney General's Power to Represent the State
    
         Once it is recognized that the State of Texas and its election
    
    process are the real targets of the Plaintiffs' lawsuit, the
    
    question then becomes:   Who is authorized to represent state and
    
         86
           See TEX. REV. CIV. STAT. ANN. art. 601b, § 10.11 (Vernon
    Supp. 1987) (providing that the attorney general "shall represent
    the [State Purchasing and General Services Commission] before the
    courts in all appeals from rate cases in which the commission
    intervenes"); TEX. REV. CIV STAT. ANN. art. 1446c, § 15 (Vernon
    Supp. 1987) (providing that the attorney general shall represent
    the Public Utilities Commission "in all matters before the state
    courts, and in any court of the United States, and before any
    federal public utility regulatory commission").
    
                                     220
    protect its interests?        The answer is supplied by state law.            Cf.
    
    New York v. Uplinger, 
    467 U.S. 246
    , 248 (1984) ("The allocation of
    
    authority among state officers to represent the State before this
    
    Court is, of course, wholly a matter of state concern.).
    
         The State of Texas, through constitutional and statutory law,
    
    has appointed the Attorney General to represent its interests in
    
    litigation such as this.87         The Texas Constitution specifically
    
    provides that the Attorney General "shall represent the State in
    
    all suits and pleas in the Supreme Court of the State in which the
    
    State     may   be   a   party."    TEX.      CONST.   art   IV,   §   22.    The
    
    interpretative       commentary    to    this    provision    notes    that   the
    
    "attorney general is the chief law officer of the state" and has
    
    the responsibility of "representing the state in civil litigation."
    
    Id., interp. commentary (emphasis added).                The Texas Government
    
    Code is similarly explicit in naming the Attorney General to speak
    
    for the state. It provides: "The attorney general shall prosecute
    
    and defend all actions in which the state is interested before the
    
    supreme court and courts of appeals."            TEX. GOV'T CODE ANN. § 402.021
    
    (Vernon 1990).
    
         Contrary to the majority's assertions, the Texas Attorney
    
    General is not just another lawyer.             Unlike an ordinary lawyer he
    
    is entitled and obligated by law to represent his client, the
    
    
    
         87
           As explained more fully below, district attorneys and
    county attorneys also have the authority to represent the state
    in some circumstances. See TEX. CONST. art. V, § 21; see also
    Baker v. Wade, 
    769 F.2d 289
    , 291 (5th Cir. 1985), cert. denied,
    
    478 U.S. 1022
     (1986).
    
                                            221
    state.   The Texas Supreme Court recognized as much in Maude v.
    
    Terrell, 
    109 Tex. 97
    , 
    200 S.W. 375
    , 376 (1918), when it explained:
    
         [T]he powers thus conferred by the Constitution upon [the
         Attorney General and the county and district attorneys]
         are exclusive. The Legislature cannot devolve them upon
         others. Nor can it interfere with the right to exercise
         them. It may provide assistance for the proper discharge
         by these officials of their duties, but since in the
         matter of prosecuting the pleas of the State in the
         courts the powers reposed in them are exclusive in their
         nature, it cannot, for the performance of that function,
         obtrude other persons upon them and compel the acceptance
         of their services. Wherever provision is made for the
         services of other persons for that express purpose, it is
         the constitutional right of the Attorney-General and the
         county and district attorneys to decline them or not at
         their discretion, and, if availed of, the services are to
         be rendered in subordination to their authority.
    
    (internal citations omitted); see also Hill v. Texas Water Quality
    
    Board, 
    568 S.W.2d 738
    , 741 (Tex. Civ. App.--Austin 1978, writ ref'd
    
    n.r.e.) ("[E]ither the Attorney General or a county or district
    
    attorney may represent the State in a particular situation, but
    
    these are the only choices[;] whichever official represents the
    
    State exercises exclusive authority and if services of other
    
    lawyers are     utilized   they   must    be   `in   subordination'   to   his
    
    authority.").     Moreover, the Texas Attorney General has broad
    
    discretion to control litigation strategy where he is representing
    
    the state.    Indeed, in Charles Scribner's Sons v. Marrs, 
    114 Tex. 11
    , 
    262 S.W. 722
    , 727 (1924), the Texas Supreme Court stated that,
    
    "[e]ven in the matter of bringing suits, the Attorney General must
    
    exercise judgment and discretion, which will not be controlled by
    
    other authorities."    See also Bullock v. Texas Skating Ass'n, 583
    
    S.W.2d at 894.
    
    
    
                                        222
         Despite this language from the highest court in Texas, the
    
    majority insists that the Attorney General is not the exclusive
    
    representative of the State of Texas in matters of litigation. The
    
    majority    curiously   finds   compelling   Chief   Justice   Phillips'
    
    argument that, as Chairman of the Judicial Districts Board, "he has
    
    the authority to defend this lawsuit if the Attorney General will
    
    not."     Majority Opinion at 12.88   In support of this finding, the
    
    majority relies heavily on our en banc decision in Baker v. Wade,
    
    
    769 F.2d 289
     (5th Cir. 1985) (en banc), cert. denied, 
    478 U.S. 1022
    
    
         88
           I say "curiously" because Chief Justice Phillips has
    never sought to represent the interests of the state in this
    appeal. At oral argument, when he was specifically asked whether
    he was seeking to represent the state on appeal from the
    liability decision, Chief Justice Phillips said that he was not.
    That is, he made it clear that his complaints go only to the
    specifics of the proposed settlement--not to the idea of settling
    this case in general. Indeed, in a speech to the Texas
    legislature, Chief Justice Phillips conceded that, regardless of
    the outcome in this litigation, the current system of electing
    district judges is indefensible. He explained:
    
         Let there be no mistake: the current at-large system
         is no longer acceptable. In Dallas County, 37% of the
         people, but less than 14% of the judges, are African-
         American or Hispanic. In Harris County, 42% of the
         people, but less than 9% of the judges, are from the
         same minority populations. Candidates from these
         racial and ethnic groups have often been defeated in
         campaigns for benches in those counties. The federal
         courts may ultimately hold that the evidence presented
         in pending litigation is insufficient to demonstrate
         that the system is illegal, but they cannot make it
         fair or right. The status quo is unjust and
         inequitable.
    
    H.J. OF TEX., 73d Leg., R.S. 479, 482 (1993) (Address of Chief
    Justice Thomas R. Phillips); see also id. at 481 ("One thing can
    be said with confidence about our current system of choosing
    judges: No one likes it.").
    
    
    
                                       223
    (1986), where we permitted a state district attorney to represent
    
    the State of Texas' interests on appeal after the Attorney General
    
    declined to do so.
    
           The majority's reliance on Baker is wholly misplaced.                   In
    
    allowing a state district attorney to intervene on appeal and
    
    defend    the    constitutionality   of    Texas'    sodomy      statute,   Judge
    
    Reavley emphasized the narrowness of the decision.                    Among other
    
    things, he noted that, "as of the date of the entry of the district
    
    court's judgment, [the state district attorney] was a member of the
    
    [defendant] class, was enjoined by that judgment, and as district
    
    attorney was a proper official under Texas law to represent the
    
    state."    Id.    at 291 (emphasis added) (citing TEX. CONST. art. V, §
    
    21).     In this case, by contrast, Chief Justice Phillips is not a
    
    proper official under Texas law to represent the state.                   Indeed,
    
    the majority has pointed to no provision of Texas law, and I can
    
    find none, that would even arguably allow the members of the Texas
    
    Judicial Districts board to represent the interests of the state in
    
    litigation.
    
           Thus, our decision in Baker is consistent with Texas law,
    
    which provides that "either the Attorney General or a county or
    
    district    attorney    may   represent     the     State   in    a    particular
    
    situation."      See Hill v. Texas Water Quality Board, 568 S.W.2d at
    
    741.     The majority opinion, on the other hand, ignores Texas law
    
    when it refuses to recognize that "these are the only choices." Id.
    
    Unlike the majority, then, I would hold that the Attorney General
    
    
    
    
                                         224
    has the exclusive authority to represent the interests of the state
    
    in this litigation.
    
           3.   The Attorney General's Power to Settle on Behalf of the
                State
    
           The majority's failure to perceive the nature of this lawsuit,
    
    as well as its failure to understand the broad and exclusive powers
    
    of the Texas Attorney General, ultimately leads it to suggest that
    
    the Attorney General in this case has acted beyond his authority in
    
    approving the settlement and asking for a remand.           I reject this
    
    suggestion.
    
           In Terrazas v. Ramirez, 
    829 S.W.2d 712
     (Tex. 1991), seven of
    
    nine   members   of   the   Texas   Supreme   Court   rejected   a   similar
    
    argument.     In particular, they rejected an argument that the
    
    Attorney General lacked the power to negotiate and execute a
    
    settlement agreement on behalf of the state.           A plurality of the
    
    court, consisting of Justice Hecht, Chief Justice Phillips, and
    
    Justice Cook, reasoned as follows:
    
           The Attorney General, as the chief legal officer of the
           State, has broad discretionary power in conducting his
           legal duty and responsibility to represent the State.
           This discretion includes the authority to propose a
           settlement agreement in an action attacking the
           constitutionality of a reapportionment statute.       The
           Attorney General has participated in such settlements on
           previous occasions.     Although the Attorney General
           appears to have acted throughout this litigation only on
           behalf of the state defendants and not for himself, he
           had the authority, certainly for his clients and even on
           his own, to suggest possible remedies after the district
           court rendered an interlocutory summary judgment holding
           Senate Bill 31 unconstitutional. He also had the power
           to negotiate a settlement with the plaintiffs and to
           execute an agreement with them. To hold that he did not
           would be to give him less authority than any party or any
           other attorney participating in the case.
    
    
                                         225
    Id.   at   721-22     (internal      citations      omitted)     (emphasis   added).
    
    Justice Hightower and Justice Gammage, dissenting on other grounds,
    
    recognized    that     the    "Attorney        General,     in   carrying    out     his
    
    constitutional responsibility to represent the interests of the
    
    state, has discretionary power to settle lawsuits on behalf of the
    
    state so long as he does not usurp the authority of a co-equal
    
    department of government."             Id. at 753 (Hightower, J., joined by
    
    Gammage, J., dissenting). In a separate dissent, Justice Mauzy and
    
    Justice     Doggett    made        similar     statements    about    the    Attorney
    
    General's power to settle lawsuits.                See id. at 746-47 (Mauzy, J.,
    
    joined by     Doggett,       J.,    dissenting).       Thus,     as   Justice    Mauzy
    
    correctly noted, seven justices agreed that "[t]he [A]ttorney
    
    [G]eneral is constitutionally empowered to execute a settlement
    
    agreement in litigation challenging a legislative redistricting
    
    plan."     Id. at 747.
    
          Consistently with the Texas Supreme Court's disposition in
    
    Terrazas, I would hold that the Texas Attorney General acted within
    
    his power as the chief legal officer of the state by executing the
    
    proposed settlement and, thereafter, by requesting a remand.                         This
    
    lawsuit is, for all practical purposes, a suit against the State of
    
    Texas, and the decisions by the Attorney General in this regard are
    
    quintessential decisions about how to protect the state's interests
    
    in    litigation--decisions            which,      under    Texas     law,      he    is
    
    constitutionally empowered to make on behalf of the state.89
    
          89
           I recognize, of course, that the mere fact that the
    Attorney General has executed a settlement agreement on behalf of
    the state will not support the entry of a consent decree. The
    
                                                 226
    B.   Who Must Consent to the Settlement?
    
         The majority also offers a second ground for refusing to
    
    remand the case for a hearing on the proposed settlement:             that not
    
    all of the "defendants" have consented to the remand or to the
    
    settlement.     In particular, the majority argues that, because the
    
    two intervening district judges, Judge Wood and Judge Entz, as well
    
    as Chief Justice Phillips, object to the settlement, the settlement
    
    could   not   be   approved   and   therefore   the   case   should    not   be
    
    remanded.     Again, I disagree.    In my view, by obtaining the consent
    
    of the Texas legislature, the Texas Attorney General did as much as
    
    (or perhaps more than) he was required to do under Texas law.
    
    
    
    
    district court must hold a hearing on the propriety of the
    settlement and consider the objections of all interested parties.
    But the Plaintiffs and the State of Texas are not asking this
    court to enter a decree based on the specific settlement that the
    Attorney General negotiated and approved. Rather, they are only
    requesting a remand on the basis of the parties' expressed desire
    to settle this lawsuit.
         I also am aware that, under Texas law, "[a]n admission,
    agreement, or waiver made by the attorney general in an action or
    suit to which the state is a party does not prejudice the rights
    of the state." TEX. GOV'T. CODE. ANN. § 402.004 (Vernon 1990).
    However, "the weight of authorities interpreting section 402.004
    shows it to be a legislative limitation on the affirmative powers
    and discretion granted to the attorney general." Texas Dep't of
    Human Servs. v. Green, 
    855 S.W.2d 136
     (Tex. App.--Austin 1993,
    n.w.h.). That is, the section has not been construed to limit
    the Attorney General's constitutional authority to propose,
    negotiate, and execute settlement agreements on behalf of the
    State of Texas--despite arguments to the contrary. See Terrazas,
    829 S.W.2d at 728 n.5, 733 n.5 (concurring opinions of Justice
    Gonzalez and Cornyn); see also Executive Condominiums, Inc. v.
    State, 
    764 S.W.2d 899
    , 902 (Corpus Christi 1989, writ denied)
    (rejecting argument that section 402.004 prevented Attorney
    General from compromising and settling claims on behalf of the
    state).
    
                                         227
         1.     Not the Intervening Judges
    
         Judge Wood and Judge Entz's objections to the settlement do
    
    not preclude a remand.              The Supreme Court's decision in Local
    
    Number    93,     International      Ass'n    of     Firefighters     v.   City   of
    
    Cleveland, 
    478 U.S. 501
     (1986), could not be clearer on this point.
    
    There, the court held that a union, who intervened as a matter of
    
    right, could not block the entry of a consent decree merely by
    
    withholding its consent to the settlement.               The Court stated:
    
         It has never been supposed that one party--whether an
         original party, a party that was joined later, or an
         intervenor--could preclude other parties from settling
         their own disputes and thereby withdrawing from
         litigation. Thus, while an intervenor is entitled to
         present evidence and have its objections heard at the
         hearing on whether to approve a consent decree, it does
         not have power to block the decree merely by withholding
         its consent.
    
    Id. at 528-29.
    
         Admittedly, a court may not enter a consent decree which has
    
    the effect of disposing "of the valid claims of nonconsenting
    
    intervenors."         Id. at 529.   Nor may a court "enter a consent decree
    
    that imposes obligations on a party that did not consent to the
    
    decree."        Id.     But these concerns are not implicated by the
    
    settlement proposed in this case.
    
         The proposed settlement agreement in this case does not
    
    dispose of the "valid claims" of Judge Wood and Judge Entz.                    They
    
    are only permissive intervenors.              See New Orleans Public Serv.,
    
    Inc. v. United Gas Pipe Line Co., 
    732 F.2d 452
    , 463 (5th Cir.),
    
    cert. denied, 
    469 U.S. 1019
     (1984); see also Clements v. League of
    
    United    Latin       American   Citizens,     884     F.2d   at    187    (equating
    
    
                                            228
    intervenor of right with "real party in interest").   As such, they
    
    do not have the status of an original party.90   Moreover, as I read
    
    the record, they were permitted to intervene only to protect their
    
    tenure as sitting elected judges.91 Thus, although I agree with the
    
         90
           Indeed, in the context of discussing the rights of a
    permissive intervenor, this court has stated:
    
         [T]he [permissive] intervenor's mere presence in an
         action does not clothe it with the status of an
         original party. To be sure, there are some senses in
         which an "intervenor is treated as if he were an
         original party and has equal standing with the original
         parties." The permissive intervenor can, among other
         things, move to dismiss the proceeding and can
         challenge the subject matter jurisdiction of the
         district court. But these participatory rights remain
         subject to the intervenor's threshold dependency on the
         original parties' claims, for it is equally well-
         settled that "[a]n existing suit within the court's
         jurisdiction is a prerequisite of an intervention,
         which is an ancillary proceeding in an already
         instituted suit."
    
    Harris v. Amoco Production Co., 
    768 F.2d 669
    , 675 (5th Cir. 1985)
    (emphasis added) (internal citations omitted), cert. denied, 
    475 U.S. 1011
     (1986); see also Kirkland v. New York State Dep't of
    Correctional Servs., 
    711 F.2d 1117
    , 1126 (2d Cir. 1983) ("[T]he
    sum of rights possessed by an intervenor, even if granted
    unconditional intervention, is not necessarily equivalent to that
    of a party in a case and depends upon the nature of the
    intervenor's interest."), cert. denied, 
    465 U.S. 1005
     (1984).
         91
           The majority concludes that Judge Wood and Judge Entz
    were also permitted to intervene in their capacity as voters of
    Harris and Dallas county. The record belies this conclusion.
         In her motion to intervene filed in the district court,
    Judge Wood asserted:
    
         As a state district judge, duly elected at large in
         November, 1988, to a four-year term of office in an
         expressly targeted county, Harris County District Judge Wood
         has a direct and substantial interest in the outcome of this
         suit in both her personal and her official capacity in that
         she stands to have here election declared null and void and
         her tenure in office drastically truncated should Plaintiffs
         obtain the relief they seek.
    
    
                                    229
    majority that the intervening judges do not, at this time, have to
    
    independently satisfy article III standing requirements,92 their
    
    
    In support of her motion, Judge Wood cited Williams v. State
    Board of Elections, 
    696 F. Supp. 1563
     (N.D. Ill. 1988), a case
    dealing specifically with whether sitting elected judges should
    be joined as necessary parties in a section 2 case challenging
    judicial elections. At no point in her motion, or in her
    supporting memorandum, does Judge Wood assert that she is
    entitled or should be allowed to intervene as a voter. In fact,
    she does not allege that she is a registered voter of Harris
    County. Thus, unlike the majority, I cannot say that she was
    permitted to intervene as a registered voter.
         In his motion to intervene, Judge Entz similarly focuses his
    arguments on why he should be allowed to intervene as a sitting
    elected judge of Dallas County. He also alleges that he is a
    resident of Dallas County and is duly qualified and registered to
    vote in the county. He then states, that "as such" he has an
    "interest in the fair administration of justice in Dallas County
    and the selection of a qualified judiciary." However, in his
    supporting memorandum, he never again mentions his status as a
    voter. Rather, like Judge Wood, he relies solely on the Williams
    case to support his motion to intervene. Therefore, I am unable
    to conclude that he was permitted to intervene to protect his
    interest--if, indeed, he has any such interest--in voting for all
    of the judges in Dallas County.
         92
           Had the Attorney General moved to dismiss the notice of
    appeal filed on behalf of the State of Texas, however, we might
    be presented with another situation entirely. See Diamond v.
    Charles, 
    476 U.S. 54
     (1986). The majority does not think so,
    but, in my view, there are serious questions about whether Judge
    Wood and Judge Entz, as sitting elected judges, would have
    standing to maintain an appeal from an order which only declares
    the current method of electing judges to be illegal. Moreover,
    even assuming that they were allowed to intervene as registered
    voters, I have reservations about the correctness of the Eleventh
    Circuit's decision in Meek v. Metropolitan Dade County, 
    985 F.2d 1471
     (11th Cir. 1993), which held that voters had standing to
    intervene and independently appeal from a district court's
    decision declaring Dade County's at-large election scheme
    invalid. The question in such cases is not whether white voters
    such as Judge Wood and Judge Entz, who seek to defend the status
    quo, would have standing to file a claim under section 2, but
    whether they would have standing to attack the order of the
    district court--that is, whether they have suffered an injury in
    fact as a result of the district court's liability decision. See
    Sierra Club v. Babbitt, 
    995 F.2d 571
     (5th Cir. 1993) ("Where
    standing to appeal is at issue, appellants must demonstrate some
    injury from the judgment below.") (emphasis in original).
    
                                   230
    mere status in this lawsuit as permissive intervenors does not, in
    
    my view, serve to give them "claims" or "defenses" in the sense
    
    contemplated by Firefighters.
    
          Nor does the proposed settlement place any "obligations" on
    
    Judge Wood or Judge Entz.           On the contrary, the settlement has
    
    absolutely no effect on either the tenure of these judges or the
    
    manner in which they will be elected in the future.                In addition,
    
    they are not directed to do anything under the proposed settlement.
    
    Compare Chisom v. Roemer, 
    970 F.2d 1408
     (where settlement at issue
    
    required the Louisiana Supreme Court to temporarily assign judge
    
    elected to newly created court of appeals position to the Supreme
    
    Court), appeal dismissed by, 
    975 F.2d 1092
     (5th Cir. 1992).
    
          Unlike the majority, therefore, I do not think that the
    
    intervening judges have to power to block the motion to remand or
    
    the entry of the proposed settlement in this case.             As permissive
    
    intervenors,    they    have   no    "claims"    or    "defenses"     that   are
    
    adjudicated by the proposed settlement. And even a cursory reading
    
    of   the   proposed    settlement    reveals    that   it   does    not   impose
    
    obligations or duties on the intervening judges.                   Thus, under
    
    Firefighters, their withholding of consent to the motion to remand
    
    is simply irrelevant.
    
          2.    Not Chief Justice Phillips
    
          I would also hold that Chief Justice Phillips' objections to
    
    this particular settlement do not preclude a remand.               As explained
    
    earlier, I do not view this lawsuit as being one against the
    
    various named officials, but rather, as one against the State of
    
    
                                          231
    Texas.   And   because   the   Attorney   General   is    the   exclusive
    
    representative of the state in such matters, the consent of Chief
    
    Justice Phillips is not required.
    
         The Austin appellate court's decision in Bullock v. Texas
    
    Skating Ass'n, which was cited with approval by the plurality
    
    opinion in Terrazas, is particularly instructive.           In this tax
    
    refund case, the plaintiff, who had prevailed in the lower court,
    
    argued that the Attorney General's notice of appeal should be
    
    dismissed because one of the Attorney General's "clients"--namely,
    
    the Comptroller--had instructed the Attorney General not to file a
    
    notice of appeal from the adverse decision.              In denying the
    
    plaintiff's motion as meritless, the Bullock court first described
    
    the status of the various named defendants.           It stated, "The
    
    Attorney General is a defendant in suits of this type in the same
    
    manner that the Comptroller and the Treasurer are jurisdictional
    
    parties, although the State of Texas is the actual party in [a]
    
    suit to recover taxes."        583 S.W.2d at 894.        The court then
    
    rejected the plaintiff's argument that "the Comptroller, in the
    
    exercise of his administrative duties, such as tax refunds, can
    
    bring litigation to a halt at any time."     Id.    It explained:
    
         In this suit the Comptroller obviously exercised his
         administrative discretion and rejected [the plaintiff's]
         request for refund of taxes paid under protest; otherwise
         there would have been no litigation. Thereafter, upon
         filing of suit, the Comptroller's statutory powers ended.
         In matters of litigation the Attorney General is the
         officer authorized by law to protect the interests of the
         State, and even in matters of bringing suit the Attorney
         General must exercise judgment and discretion, which will
         not be controlled by other authorities. It was within
         the discretion of the Attorney General, not that of the
         Comptroller, to decide whether to appeal a case in which
    
                                      232
         the State had experienced an adverse judgment in the
         trial court. In such matters the Attorney General, not
         the Comptroller of Public Accounts, is authorized to
         perform the duties of the State's attorney. The motion
         to dismiss the appeal is overruled.
    
    Id. (internal citations and quotation marks omitted).
    
         Like the majority, I think that the decision to settle a
    
    lawsuit is, for all practical purposes, indistinguishable from the
    
    decision to file (or not to file) a notice of appeal.             Unlike the
    
    majority,   however,   I   also   think   that   the   Attorney   General's
    
    decision on these issues controls--at least when it does not
    
    conflict with the view of another appropriate representative of the
    
    state.   See supra Part II.A.2 (discussing Baker v. Wade).           Thus, I
    
    do not think that Chief Justice Phillips, who is at                  most a
    
    
    
    
                                        233
    "jurisdictional party,"93 must consent to a remand before the motion
    
    to remand is granted.94
    
         3.   Perhaps the Texas Legislature
    
         In concluding that neither the consent of the intervening
    
    judges nor the consent of Chief Justice Phillips is required, I am
    
    not unmindful of the potential for state law separation of powers
    
    problems in cases like these.      See Terrazas, 829 S.W.2d at 720.
    
    Nor was the Attorney General unmindful of the potential for such
    
    problems in this case.    This is why he sought and obtained approval
    
    
         93
           As discussed supra Part I.A.1., Chief Justice Phillips
    was apparently named as a Young defendant--in order to get around
    the Eleventh Amendment bar to suits brought directly against the
    state. To come within the rule of Young, however, the officials
    who are named as defendants "must have some connection with the
    enforcement" of the state law being challenged. See Young, 209
    U.S. at 157 (emphasis added). Otherwise, the named official has
    only been made "a party as a representative of the state" in an
    "attempt[] to make the state a party." Id. When officials who
    are not charged with enforcing the challenged state law are
    joined as parties, therefore, the proper course is dismissal.
         Assuming section 2 does not waive a state's Eleventh
    Amendment immunity, the Plaintiffs correctly named the Texas
    Attorney General and the Secretary of State in their official
    capacities. After all, both are responsible for enforcing the
    current method of electing district court judges. However, the
    members of the Texas Judicial Districts Board (including Chief
    Justice Phillips), have legislative responsibilities--
    responsibilities that arise only if the Texas legislature fails
    to act. See TEX. CONST. art. 5 § 7a(e). They have no enforcement
    responsibilities whatsoever. Thus, in my mind there is a
    question as to whether the Plaintiffs' action against the members
    of the Judicial Districts Board, including Chief Justice
    Phillips, are barred by the Eleventh Amendment.
         94
           I recognize, of course, that the district court would
    have to conduct an evidentiary hearing on the proposed settlement
    and that Chief Justice Phillips' objections to the proposed
    settlement would have to be fully aired. The point is that, at
    this time, all the parties are seeking is a remand; they are not
    seeking this court's stamp of approval on the current proposed
    settlement.
    
                                      234
    of   the   proposed   settlement   from    both   houses   of    the   Texas
    
    legislature.
    
          The majority suggests that, because the Texas legislature
    
    could not enact the proposed settlement into law, its less formal
    
    approval of the proposed settlement is meaningless.             I disagree.
    
    The Texas Senate, acting as a Committee of the Whole (which is
    
    authorized by Texas law), expressed its approval of the proposed
    
    settlement in the form of a resolution.       The Texas House similarly
    
    approved the proposed settlement through a resolution.             Both of
    
    these   resolutions    were   "official"    expressions    of    the   Texas
    
    legislature's position on the question of whether this case should
    
    be settled.
    
          In my view, these resolutions only reinforce the conclusion
    
    that the State of Texas has consented to a remand and to entry of
    
    the proposed settlement.      That two intervening judges and Chief
    
    Justice Phillips, none of whom was elected to represent the state
    
    in matters of litigation, do not consent, only serves to highlight
    
    the extent to which this lawsuit has become politicized.               Their
    
    failure to consent does not, however, preclude a remand or the
    
    entry of a settlement agreement.
    
    C.    Can the Proposed Settlement Override State Law?
    
          Finally, the majority declines to remand this case because the
    
    proposed settlement is inconsistent with state law--specifically,
    
    the provision of the Texas Constitution that allows judicial
    
    districts to be drawn smaller than a county, but only with the
    
    approval of the voters of the county.         See TEX. CONST. art V, §
    
    
                                       235
    7a(i).    The majority holds that, without a final, non-appealable
    
    decision finding a section 2 violation, voting rights cases cannot
    
    be settled in a way that is inconsistent with state law.       Once
    
    again, I must disagree.
    
         The majority argues that in Chisom v. Roemer, 
    970 F.2d 1408
    ,
    
    1409 (5th Cir. 1992), where we remanded a case similar to this, we
    
    were able to remand because the parties brought with them a duly
    
    enacted state law.   Even assuming that the settlement proposed in
    
    Chisom was entirely consistent with state law--a matter upon which
    
    we expressed no opinion95--there is a crucial distinction between
    
    this case and Chisom:     In Chisom, the district court had found no
    
    section 2 liability; in this case, by contrast, the district court
    
    found that the Texas' method of electing district court judges in
    
    county-wide elections violated section 2 in each of the nine target
    
    counties.
    
         I think the district court's section 2 liability findings
    
    provide a sufficient basis for remanding the case for a hearing on
    
    the proposed settlement. Of course, I agree with the majority that
    
    the district court would not be able to "merely sign on the line
    
    provided by the parties."      See United States v. City of Miami,
    
    
         95
           An argument can be made that the settlement proposed in
    the Chisom case--a settlement which had the effect of temporarily
    adding an eighth seat to the Louisiana Supreme Court--offended
    the Louisiana Constitution. See LA. CONST. art. V, § 3 ("The
    supreme court shall be composed of a chief justice and six
    associate justices, four of whom must concur to render
    judgment."). As the majority correctly notes, Louisiana's effort
    to amend the constitution to add an extra position had failed.
    See Majority Opinion at 30 n.19. The point is that, before
    remanding, we never considered this question in Chisom.
    
                                      236
    Florida, 
    664 F.2d 435
     (Former 5th Cir. 1981) (en banc).        Given the
    
    detailed section 2 findings already made by the district court,
    
    however,   I   do   not   think   that    the   settlement's    apparent
    
    inconsistency with state law is a reason to deny the motion to
    
    remand.
    
         Our decision in Overton v. City of Austin, 
    748 F.2d 941
     (5th
    
    Cir. 1984), rather than arguing against a remand, suggests that a
    
    remand may be particularly appropriate in this case.           There, we
    
    refused to mandamus a district court to enter a proposed consent
    
    decree based on a settlement between minority plaintiffs and the
    
    City of Austin.     We noted that, at the time the settlement was
    
    presented for approval, no evidence of vote dilution had been
    
    presented to the district court.         In holding that the district
    
    court did not abuse its wide discretion in refusing to enter the
    
    consent decree, we concluded that the parties were effectively
    
    trying to accomplish a result--namely, the amending of Austin's
    
    City Charter--which they did not have the power to do without a
    
    vote of the people.   We stated:
    
         Thus,   more  is   necessarily   involved  than  merely
         ascertaining whether the parties have consented to an
         ultimate result which is not of itself illegal,
         unreasonable or unfair.     Absent a properly grounded
         judicial   determination   that   the  present  charter
         provisions are illegal, the consent of the parties
         provides an insufficient basis on which to judicially
         ordain a different system of council election and
         composition.
    
    748 F.2d at 956-57 (emphasis added).96
    
         96
           Our discussion in Overton, happily enough, is consistent
    with the Texas Supreme Court's decision in Terrazas. In that
    case, a plurality of the members of the Texas Supreme Court
    
                                       237
           When the parties in this case presented their motion to
    
    remand, the case was in a very different posture than the one in
    
    Overton.     There had been lengthy trial, during which time the
    
    Plaintiffs    presented   substantial      evidence   of   vote    dilution.
    
    Moreover, the only decision which still stood was the district
    
    court's--i.e., the one holding that Texas' method of electing
    
    district judges in at-large, county-wide elections operates in the
    
    nine target counties to dilute minority voting strength.              In my
    
    view, this decision constitutes a "properly grounded judicial
    
    determination" that the current system is illegal. It was based on
    
    the    evidence   presented   at   trial   and   represents   a   reasonable
    
    interpretation of that evidence. This finding should be sufficient
    
    under Overton to allow the parties to effectuate a settlement they
    
    otherwise would not have the authority to bring about under state
    
    law.
    
    
    
    
    recognized that a state district court could enter a consent
    decree, based on a settlement between the Attorney General and
    the plaintiffs, which effectively reapportioned the state
    legislative districts. It noted, however, that the entry of such
    a consent judgment required some procedural regularity (i.e., the
    state district judge would have to carefully consider the many
    interests involved, give due deference to the legislature to
    rectify its own statutes, and give due regard for the effect of
    the order on the election process). See 829 S.W.2d at 718. The
    plurality in Terrazas also suggested that court-ordered
    reapportionment based on such a settlement would be prohibited
    absent a judicial determination that the current statute was
    invalid. See id. at 722. Once there is a judicial determination
    that the current statute is invalid, under the plurality opinion
    in Terrazas, a state district court would be able to enter a
    consent decree based on a settlement agreement executed by the
    Attorney General. In short, neither Overton nor Terrazas
    requires a final, non-appealable finding of liability before a
    court can override a provision of state law.
    
                                         238
           Also, because this settlement has been approved by a majority
    
    of both houses of the Texas legislature, I think that the motion to
    
    remand should be taken more seriously than the majority sees fit to
    
    do. In confronting an analogous situation in Wise v. Lipscomb, 
    437 U.S. 535
    , 548 (1978), the Supreme Court approved the decision of
    
    the Dallas City Council to reapportion itself in response to a
    
    district court finding that the then-existing at-large election
    
    system violated the Constitution--despite the fact that the city
    
    council appeared to lack the power to do so under state law.            In a
    
    concurring opinion, four Justices explained why a federal court was
    
    required to show deference to the plan:
    
           The essential point is that the Dallas City Council
           exercised a legislative judgment, reflecting the policy
           choices of the elected representatives of the people,
           rather than the remedial directive of a federal court .
           . . . This rule of deference to local legislative
           judgments remains in force even if . . . our examination
           of state law suggests that the local body lacks the
           authority to reapportion itself.
    
    Id. at 548. (Powell, J., concurring, joined by Burger, C.J.,
    
    Blackmun, and Rehnquist, JJ.).      Although the resolutions passed by
    
    the Texas legislature in this case do not have the force of law,
    
    they    do   represent   an   official    expression     of   the   "elected
    
    representatives of the people" of Texas on the questions of whether
    
    and how this case should be settled.
    
           Ultimately, the majority is able to rely on the settlement's
    
    apparent inconsistency with state law as a ground to deny the
    
    motion to remand because it is convinced "there is no [section 2]
    
    case" here.        Even a cursory review of the record in this case
    
    discounts    the    majority's   characterization   of    the   Plaintiffs'
    
                                        239
    evidence of vote dilution.       See generally supra Part I.    But the
    
    majority's    statement   does    reveal   something   about   its   real
    
    motivation for denying the motion to remand: its unwavering desire
    
    to reach the merits of this case so that it can overhaul the Voting
    
    Rights Act.
    
    D.   The Implications of the Majority's Decision to Deny the Motion
         to Remand
    
         In sum, the majority offers three reasons why the motion to
    
    remand filed by the State of Texas and the Plaintiffs in this case
    
    must be denied. None is persuasive. The majority cannot seriously
    
    argue that the Attorney General has exceeded his authority or that
    
    he has somehow failed in his duty to represent the interests of the
    
    State of Texas.    And, although the majority correctly notes that
    
    not all of the nominal "defendants" have joined in the motion to
    
    remand, it offers no reason why the case cannot be remanded without
    
    the consent of the intervening judges and Chief Justice Phillips.
    
    Finally, the majority is able to rely on the fact that the proposed
    
    settlement is inconsistent with Texas law only by reaching the
    
    merits of the underlying section 2 dispute--and reversing the
    
    district court on clearly erroneous grounds.
    
         The majority's rationale for denying the motion to remand will
    
    discourage, if not prohibit, the settling of most voting rights
    
    cases.   It will effectively require the consent of all of the
    
    various named officials, as well as any party who, for whatever
    
    reason, has been permitted to intervene.       And, in most cases, it
    
    will require a final, non-appealable decision that there is a
    
    section 2 violation.      That is, under the majority's reasoning, a
    
                                       240
    state may effectively be forced to defend an election system, even
    
    when its chief legal officer thinks that the system runs afoul of
    
    the Voting Rights Act, unless there is a conclusive determination
    
    by the Supreme Court that the system does indeed violate section 2.
    
    Somehow, I do not think this is consistent with our policy of
    
    encouraging settlements in other areas of the law.
    
         Moreover, the majority's rationale for denying the motion to
    
    remand places a premium on judicial efficiency.       The majority
    
    concludes that, based upon the evidence the Plaintiffs' adduced at
    
    trial, no reasonable district court could enter a consent decree
    
    that would override provisions of Texas law.   Of course, in making
    
    this conclusion, the majority necessarily tramples upon other
    
    judicial values that are equally, if not more, important--namely,
    
    the values of judicial restraint and federalism.   It also turns a
    
    deaf ear to the one voice in this lawsuit who is authorized to
    
    speak on behalf of the State of Texas, the Attorney General, and
    
    ignores the Texas legislature's official expression of its desire
    
    to see this case settled.
    
         Instead of elevating judicial efficiency above these other
    
    values, I would grant the motion to remand.    In doing so, I would
    
    express no opinion on the proposed settlement, but would instruct
    
    the district court that it should carefully consider the objections
    
    of the intervening judges, Chief Justice Phillips, and other
    
    interested parties. I would also instruct the district court that,
    
    in deciding whether a settlement can override state law, it must
    
    consider all evidence relevant to the question of whether there is
    
    
                                   241
    a section 2 violation, including the state's valid interests in
    
    maintaining the current system.
    
         Admittedly,   this      course    of   action   might    eliminate     our
    
    opportunity to address many of the new, burning questions about the
    
    framework for deciding section 2 cases.         But that is not the duty
    
    of an Article III court.      Rather, as the majority notes, "[o]ur job
    
    is to decide a case or controversy."            Majority Opinion at 27.
    
    Where the plaintiffs and the defendant in a case have expressed a
    
    desire to settle their dispute, I think that principles of judicial
    
    restraint require us to give them the opportunity to do so.
    
    
    
    WIENER, Circuit Judge, dissenting.
    
         I respectfully dissent.          In so doing I join the dissent of
    
    Chief Judge Politz in the belief that we judge best when we judge
    
    least,   particularly   in    controversial     matters      of   high   public
    
    interest to the several states.         If forced to take a position on
    
    the merits of this, the second en banc consideration of the case,
    
    I would regrettably find it impossible to concur in the reasoning
    
    of Judge Higginbotham's majority opinion or Judge Jones' concurring
    
    opinion.   For me those writings simply do not "hang together."               I
    
    would therefore reach the same conclusion as does Judge King in her
    
    dissentSQand for most if not all of the same reasons.
    
    
    
    
                                          242