Jones v. City of Lubbock Court Opinion

    364 ?2? FEDEBAL REPORTER, 2d SDRIES

ior that appeal. This was ina&a the repre-

a€ntation made in oral argument. Its prac-

tical rcsult, as all eounsel understood at the

time, was to induce this panel to take the

time to prepare and file a written opinion'

By accepting counsel's representation and

following this cource, the panel unwittingly
delayed the request to Justice lVhite for a
stay. In sum, the state is not chargeable

with any confusion or uncertainty or hesi-

tancy that preceded Autry's removal from
the gurney. It follows that the state did

not deprive Autry of any constitutionally
secured right in its manner of starting and

aborting the execution Process.

The decision of the district court is AF-
FIRMED and the application for a certifi-
cate of probable cause and stay of execution

is DENIED.

Rev. RoY JONES, et al',
Plaintiffs-APPellees,

v.

The CITY OF LUBBOCIL et al',

Def endants-APPellants'

No. 83-1196.

United Stat€s Crurt of APPeals,

Fifth Circuit.

March 5, 1984.

Rehearing and Rehearing En Banc

Denied APril 10, i984'

Appeal was taken from a judgrnent of
the United States District C,ourt for the

Northern District of Texas finding that the

city's at-large system for election of city
council members did not dilute the voting

strength of minority voters' The Court of
Appeals, 640 F.2d 777, vacatcd and remand-

ed but subsequently withdrew mandate,

then granted rehearing and supplemented

opinion, 682 F.2d 504, remanding for recon-

sideration. On remand, the United States

Dietrict Court for the Northern District of

Texas, Halbcrt O. Woodward, Chief Judge,

entered judgment holding tllat city's at-

large system violated both the Fifth
Anrendment and the Voting Rights Act,

and city appealed. The Court of Appeals,

Randali, Circuii Judge, held that: (r) find-
ing that charter commission adopted at-

large system to exclude black electoral par-

ticipation was clearly erroneous; (2) section

of Voting Rights Act prohibiting electoral

practices and procedures that create dis-

criminatory results was not susceptible to

attack as vague and, even if susceptible,

was not void for vagueness; (3) such section

did not exceed Congress' authority under

doctrine of separation of powers; (4) find-

ing that, under totality of circumstances,

ci['s atJarge system deprived minority cit-

izens of access to political process wa's not

error; and (5) trial court did not abuse its

discretion in adopting districting plan draw-

ing six single-member districts to replace

invalidated atJarge sYstem.

Reversed in Part; affirmed

Opinion on rehearing, 5th

F.zd 233.

parL

Cir., 730

l. Federal Courts e-850
To reverse finding of district court,

Court of Appeals must proceed under clear-

ly erroneous rule. Fed.Rules Civ.Proc'Rule

5?,(a), %3 U.S.C.A.

2. Federal Courts @853

Only if, on review of record, Court of
Appeals derives clear impression that mis-

take has been made may Court of Appeals

second-guess conclusions of district judge'

Fed.Rules Civ.Proc.Rule 54a), % U.S'C'A'

3. Municipal CorPorations e=80

Finding that city charter commission

adopted at-large electoral system to exclude

black electoral participation was clearly er-

roneous, notwithstqlrding evidence that
charter commission member owned and ed-

ited newspaper in which editorials appeared

recommending disenfranchising blacks and

warning of black efforts to exert political

influence. Fed.Rules Civ.Proc.Rulc 52(a),

28 U.S.C.A.; U.S.C'A. Con:t.Amend' 15;

Vernon's Ann.Texa-s Const Art. 11' S i;
Vernon's Ann.Texas Civ'St. art 116i-1182



4. Constitutio"nal Iaw e44

\
JONFTS'v. CITY OF LUBBOCK

Clr. rs Zr7 Frd tel ttCtal

rl.

C.ertification to UnitLd States Attorney

_Creneral_oJ 
ch al I e nge to consti tu ti oaal i ty oi

Voting Rights Act section is not disoeiion_
ary. U.S.C.A. Const.Amends. 14, g b, lE,
g 2; Voting Rights Act of t9&5, g 2, as
amended, 42 U.S.C.A. g t9?B; 28 U.S.C.A.
$ %03(a).

5. Constitutional law e'44
Although constitutional challenge to

section of Voting Rights Act had noi b"un
certified to United States Attorney General
as required by statute, where action had
aheady proceeded to final judgment, and
pendency of elections eounselled that issues
be adjudicated with dispatch, proceedings
would not-be interrupted to await input If
Attorney General but, rather, copy of opin-
ion would, upon issuance, be certified to
Attorney General and motion for rehearing
promptly entertained in event Attorne!
General believed that intervention was rJ_
quired. U.S.C.A. Const.Amends. 14, g 5,
15, $ 2; Voting Rights Act of 1965, g 2, as
amended, 42 U.S.C.A. g 19ZB; 28 U-S.C.A.
$ %03(a).

6. Constitutional [.aw 6251.4

-Civil statute may require or proscribe
conduct so vaguely that it violates due pro_
@ss. U.S.C.A. Const.Amend. 14.

7. Statutes e47
Vagueness challenge to civil statute

contemplates less exacting standard of re_
view than standard applied to penal stat_
utes. U.S.C.A. Const.Amend. 14.

8. Statutcs 647
Degree of unclarity permitted by

vagueness standard varies according to na_
ture of statute and need for fair noti." o"
protection from unequal enforcement. U.S.
C.A. Const.Amend. 14.

9. Statutes e4?
Before a penalty, whatever its nature,

creates urgent need for notice for purpose
of vagueness challenge to penalty .tutrt",
penalty must attach to conduct. U.S.C.A.
Const.Amend. 14. . Congress has power to adopt prophylac_

tic measures to vindicate purposes oi Forr_

' 
f365

10. Electione c'9
Sdction of Voting BiCht Act prohibit_

ing electoral practices ahd procedures that
create discriminatory results even though
responsible government body has not inte-n-
tionally discriminated was not, absent ef-
fect on conduct, susceptible to attack as
vague- Yoting Rights Act of lg65, g 2, as
amended, 42 U.S.C.A. g tgTB; U.S.C.A.
Const.Amend. 14.

ll. Elections Fg
Even if section of Voting Rights Act

prohibiting electoral practices urd p"o""_
dures that create discriminatory results
could be regarded as regulating conduct,
section was not unconstitutionally vague.
Voling Rights Act of 1965, g 2, as amenlea,
42 U.S.C.A. S 19TB; U.S.C.A. Const.Amend.
74.

12. Constitutional Law 62b1.4
A civil statute would violate due pro-

cess only if it commanded complian"u in
terms so vague and indefinite as really to
be no rule or standard at all. U.S.b.A_
Const.Amend. 14.

13. Constitutional [,aw e52
Elections eg
Congress did not exceed its authority

under doctrine of separation of powers in
enacting Voting Rights Act pnrscription of
electoral practices and procedures t-hat cre_
ate discriminatory resulls without showing
of intent, notwithstanding that Constitutioi
!30 begn judicially interpreted to require
discriminatory intent to invalidate election
systems, where, acting on testimonl, show_
ing that full exercise of franchise bjAmeri_
can minorities still suffered from effect of
electoral systems that hindered minority in_
put into nation's decision making, Congress
could rationally determine that .,res=ults"

test was necessary to enforee Fourteenth
and Fifteenth Amendments. U.S.C.A.
Const.Amends. 14, f4, S 5, ls, lb, $ 2; Vot_
ing Righls Act of 1965, S 2, as amended, 42
u.s.c.A. s 1e73.

14. Constitutional [,arv e56



teenth and Fifteenth Amendments,

C.A. Const.Amends. 14, 15'

15. Constitutional l.gw c=52

So long as Congress adopts lawful and

rational means to enforce C,onstitution, sep
aration of powers doctrine requires that
judiciary, rather than Congress, defer.

16. Constitutional Law e52
Assigning nonintent standard to con-

gressional measure for enforcement of con-

stitutional provision does not pose serious

constitutional obstacle; where Congress, on

basis of factual investigation, perceives that
facially neutral measure carries forward ef-
fect of past discrimination, C,ongress may
even enact blanket prohibitions against
such rules. U.S.C.A. Const.Amends. 14, 14,

S 5, 15, 15, S 2; Voting Rights Act of 1965,

g 2, as amended, 42 U.S.C.A. $ 19?3.

17. Elections e9
Section of Voting Rights Act prohibit-

ing electoral practices and procedures that
create discriminatory results even though
responsible government body has not inten-
tionally discriminated does not adopt stan-

dard of discriminatory purpose but, rather,

"results" test. Voting Rights Act of 1965,

$ 2, as amended, 42 U.S.C.A. S 1973'

18. Municipal Corporations @80
Showing of city's unresponsiveness to

particularized minority needs and polarized

voting can combine to demonstrate inten-
tional exploitation of electorate's bias for
purpose of challenge to electoral system
under Voting Rights Act. Voting Rights
Act of 1965, S 2, as amended, 42 U.S.C.A.

s 1973.

19. Municipal CorPomtions F80
While combination of polarized voting

and city's unresponsiveness to particular-
ized minority needs may make challenge to

electoral system under Voting Righls Act
"strong," absence of unresponsiveness does

not negate other inferences that flow from
polarization so as to render existence of
polarized voting u'ithout significance. \'ot-
ing Rights Act of 1965, S 2, as amended, 42

u.s.c.A. s 1973.

?27 FEDEBAL REPORTOR,2d SERIES .

p.S. 20. Municipal Corporotione G'80

!f ,-,\ -
\

pity's unresponsiveness to particular-
ized minority needs is not essential element
of action under section of Voting Rights
Act prohibiting electoral practices and pro'
cedures that create disciiminatory results.

Voting Rights Act of 1965, $ 2, as amended,

42 U.S.C.A. S r9?3.

21. Elections e=12

Dilution claim under Constitution does

not require as element unresponsiveness to
particularized minority needs. U.S.C'A.

Const.Amend. 15.

22. Municipal CorPorations @=80

Conclusion that representatives of
black and Mexican-American voters in city,
who challenged city's atJarge system for
electing city eouncil members under Voting
Rights Act, failed to establish significant
lack of responsiveness on part of city to
particularized needs of minorities was not

clearly erroneous. Voting Rights Act of
1965, S 2, as amended, 42 U.S'C.A. S 1973.

23. Municipal Corporations €=69

Absence of any tenuous justification
for city's at-large electoral system for elec-

tion of city council members was inconclu-
sive as factor in determining lawfulness of
at-large election system. Voting Rights
Act of 1965, $ 2, as amended, 42 U.S-C.A.

s 1973.

24. Municipal CorPorations e36
AtJarge system for election of city

council members did not become unlau{ul
merely because it disadvantaged discrete

and insular minority. Voting Rights Act of

1965, S 2, as amended, 42 U.S.C.A. S 1973'

,U. B1".1ions e-12
Even where at-large electoral system

interacts with racially or ethnically polar-

ized electorate to disadvantage of minority,
"result" is not necessarily a denial of politi-

cal access. Voting Rights Act of 1965, S 2,

as amended, 42 U.S.C.A. S fgB.

26. Municipal CorPorations €-80
Under Voting Rights Act, Court of AP

peals could not uphold city at-large election

scheme if it inflicted discriminatorl' result
so severe that blacks and Mexican--{meri-
can voters had lost equal acces. l' l' litical

prcce88

smend{

2?. Mu
Fa

rcsult r

of city
more t
proport
Act of
s re73

28. Ele
Bl(

dilute '
other 1

Voting
42 U.S

29. Ele
Po

tutiona
electorl
constit,
Voting
42 U.S

30. Mu
Fir

tion of
black
equal a

of Voti
C.A. G
of 196

s 1973

31. Ele
A

plan to
tem m
court n

for ins
court r

district
Const.l
1965, S

32. Mu
Tr

in adol
gle'me
at-largr
membe
other t

I

,.4',-..,



pnooe$. Voting Bights.Aci of 1965, g 2, as
amended,42 U.S.C.A. S f9?8. ,

2?. Municipal Corporationg 6g0
Factorr demonstrating discriminatory

rcsult of city's at large system for election
of city council members had to amount to
morr than mere judicial enforcement of
proportional representation. Voting Rights
Act of 1965, S 2, as amended, 42 U.S.6.A.
$ 1973.

28. Elections ol2
Bloc voting does not unconstitutionally

dilute voting strength without reference t-o
other factors. U.S.C.A. Const.Amend. IS;
Voting Rights Act of 1g65, $ 2, as amended,
42 U.S.C.A. S re?s.

29. Elections 612
Polarized voting is not itself unconsti_

tutional, and does not ipso facto render
electoral framework in which it occurs un_
constitutional. U.S.C.A. Const.Amend. lb;
Voting Rights Act of 196b, g 2, as amended,
42 U.S.C.A. S r9?3.

30. Municipal Corporations e>gO
Finding that at-large system for elec_

tion of city council member.s deprived city's
black and Mexican-American citizens of
equal access to electoral process in violation
of Voting Rights Act was not error. LI.S.
C.A. Const.Amend. 15; Voting Rights Act
of 1965, $ 2, as amended, 42 U.S.C.A.
s 1973.

31. Elections ol2
A district judge adopting districting

plan to replace an invalidated at-large sys-
tem must adhere to middle road; while
court must avoid drafting a plan as deviee
for installing proportional representation,
court cannot blind itself to effect of its
districting plan on racial groups. U.S.C.A.
Const.Amend. 15; Voting Righls Act of
1965, S t as amended, 42 U.S.C.A. S 19T8.

32. Municipal Corporations F80
Trial court did not abuse its discretion

in adopting districting plan drawing six sin-
gle.member districts to replace invalidated
at-large system for election of citv council
members where no racial or ethnic group,
other than Anglos, had population maioriiy

L-At** - - ,

JONES v. CITY oF LUBB0CX
CltGrs?2ZFJdrS4 (tgt4)

l.
367

in any of six districts, nq racial or ethnic
group could dominate elections without ei_
ther depending on coalition with another
group or depending on substantial crossover
y.otin-S fmm other g"oups, minority poputa_
tion had smaller percentage of votinj age
population than Anglos, and settlemeni prlt_
tern of city's black and Hispanic poprtu_
tions in concentrated neighborhoods
compelled district court to abstain firm
drawing lines that might fragment either
minority community. U.S.a.A. Const.
Amend. 15; Voting Rights Act of 1965, S 2,
as amended, 42 U.S.C.A. g lg?8.
33. Elections e=12

Apportionment is principally a legisla_
tive responsibility and district court sh-ould,
in invalidating at-large electoral system, af_
ford governmental body u ."".onull" oppor_
tunity to produce a constitutionally permis_
sible districting plan; if governmental bodv
submits plan, court should, before rejecting
it, determine that substitute plan ilef ii
unlawful. Voting Rights Act of 1965, g 2,
as amended, 42 U.S.C.A. S 19?8.

Tlavis D. Shelton, T. Dale Jones. John C.
Ross, Jr., City Atty., James p. Brewster,
Asst. City Atty., Lubbock, Tex., for City oi
Lubbock et al.

_- 
William L. Garrett, Dallas, Tex., Mark C.

Hall, c/o John J. O'Shea, Albert perez, To_
mas Garza, Lubbock, Tex., Rolando L. Rios,
San Antonio, Tex., for Rot, Jones et al.

Lane Arthur, Lubbock, Tex., for Rose
Wilson.

Daniel H. Benson, Lubbock, Tex., for
plaintiffs-appellees, Roy Jones et al. and
plaintiff-intervenor-appellee, Rose Wilson.

Appeal from the United States District
Court for the Northern District of Texas.

a.

Before REAVLEY, RANDALL and HIG_
GINBOTHAM, Circuit Judges.

MNDALL, Circuit Judge:

The Citl' of Lubbock, Texas, appeals a
judgment holding that thc Citr.'s at_large
system of electing memlus of its cttr. coun_



368 ?27 FEDERAL REPoRTER, 2d SERIEE

cil violated both the Fifteenth Araendment
to the United States Constitution and sec-
tion 2 of the Voting Rights Act,42 U.S.C.A.
S 1973 (West Supp.1983). That judgment
rests on the district court's findings that
the City, at least in part, adopted its elec-
toral system as a means to discriminate
against its black citizens, and that the sys-
tem presently deprives the City's black and
Mexican-American citizens of equal access

to the electoral process. The City principal-
ly contends that the district court clearly
emed in making these findings. In addi-
tion, the City challenges the constitutionali-
ty, and the lower court interpretation, of
section 2 of the Voting Rights Act. Finally,
the City attacks the propriety of the lower
court's remedial districting plan. We af-
firm in part, and reverse in part.

I. FACTUAL AND PROCEDURAL
BACKGROUND.

According to the 1980 census, the City of
Lubbock has a population of 173,979. Of
this population, 14,2M, or 8.Y", are black,
and 31,085, or 17.97o, are Mexican-Ameri-
can. For the most part, this minority popu-
Iation is concentrated in neighborhoods in
the eastern and northeastern parts of the
City. Over 757" of the black and Mexican-
American population resides in these predo-
minately minority areas. The plaintiffs
and intervenors represent classes eonsisting
of all the black and Mexican-American vot-
ers in the City of Lubbock.

Lubbock is a "home rule" city established
in 1909 under Tex. Const. art. II, $ 5 and
Tex.Civ.Stat.Ann. arts. 1165-1182 (Vernon
1963 & Supp.1982) (as amended). The
present city charter, originally enacted in
1917 and amended in 1961, 1964 and 1967,
provides for a mayor and a four member
city council. The mayor serves a two year
term and the council members serve four
year terms. The terms of council members
are staggered so that two council members
come up for re-election every two years.

Although the Citf is dilided int0 voting
precincts, the entire Citl- elecrs tht, mal'or
and council at large. Councii :i I n)1,(,r-i

need not live in aay particular part of the

9itv' :

Any resident citizen of Lubbock-with
exceptions not relevant here-may nrn for
mayor or the city council by filing for can-
didacy at least thirty days before elections.
To file for city council, a candidate must
announce for a particular post on the coun-
cil. At least since a charter amendment in
1964, a candidate for mayor or city council
must receive a majority of votes. Where no
candidate in the field attracls a majority
vote, the two candidates with largest vote
totals enter a runoff election.

The City has only recorded the race and
ethnicity of candidates since 1970. Since
that time, no black or Mexican-American
candidate has run for mayor or city council
successfully. Before 1970, the parties have
identified only one minority candidate, and
that candidate lost. Although two Mexi-
can-Americans have represented Lubbock
in elected office, one won a school district
election under a plurality-vote system, and
the other won an election for state repre-
sentative from a single-member district
that includes only a part of the City.

In 1976, the plaintiffs began this action to
require the City to abandon its at-large
election system. The complaint alleged
that the election scheme not only had re-
sulted in minority electoral defeat, but had
also effectively denied Lubbock's black and
Mexican-American voters of equal access to
the political processes. This deprivation al-
legedly violated the fourteenth amendment,
the fifteenth amendment and section 2 of
the Voting Rights Act.

The district court originally conducted a
nonjury trial between December 18, 1978,

and Januarl, 24,1979. On June 8, 1979, the
court issued a comprehensive memorandum
opinion finding that the Lubbock atJarge
election system did not dilute the voting
strength of minority voters.' Although the
court found a history of official discrimina-
tion, electoral rules that enhanced the op
portunity to discriminate, and a general
lack of success by minority candidates, the
court believed that the responsiveness of
the Citl' to particularized minority needs,

tb€
ab*
ablr
Citi
enSl

u
prct
int
ltoi
149(

Cou
that
ty
shor
at6
opin
101,
sent
ove!
this
inat
dilut
15ffi
gent
2r7-
Nev
fact,
u6
(199,

meD

Jon<

Cir.l
witl'
ofa
case.

S.Ct
thou
that
ing,
dilut
discr
3rE
distr
Rog(
504 (

w
case

l. l,
evt
8er
of
an(

af,,**.. *



,,
\

06e

r'-...i.--t

JONES v. GITY'OF LUBBOCK
Qh.rszlTF2d!64(1984), " t

the absence of slating restrictioni and the other change in the law of voting dilutioir
absenceof anytenuousjustification'forthe by amen(ing the Voting Rights Act. In
at-large system required i finding in the effect, Congress "overruled'.'r Bolden. The

City's favor. The first appeal to this 6ourt district court held further liearings on Jan-
ensued.

While that appeal was pending, the Su-

preme Court announced dramatic changes

in the law of voting dilution. ln City of
Mobile v. Bolden, 446 U.S. 55, 100 S.Ct.

1490, 64 L.Ed.Zi 47 (1980), the Supreme

Court explicitly stated, for the first time,
that a claim of denial of access by a minori-
ty to the political processes required a

showing of a purpose to discriminate. Id.
at 66-71, lm S.Ct. at 1499-1501 (plurality
opinion of Stewart, l.); accord rd at 99-
101, 100 S.Ct. at 1516-1517 (Whit€, J., dis-
senting). A plurality of the Justices, more-
over, repudiated the then-prevailing view in
this circuit that objective indicia of discrim-
ination could establish intentional voting
dilution. Id. aL 72-74, 100 S.Ct. at 1502-
1503 (pluralitl' opinion of Stewart, J.) See

generally Nevett v. Sides, 571 F.2d 209,

277-n (5th Cir.1978) [hereinafter cited as

Nevett III (intent required, but objective
factors can establish intent), cert. denied,

446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.% 80?

(1980). Accordingly, we vacated the judg-
ment and remanded to the district court.
Jones v. City of Lubbock,640 F.zd 777 (lLh
Cir.1981). Shortly thereafter, this court
withdrew the mandate pending the outcome
of another Supreme Court voting dilution
case, Eogel:s v. I-odge, 458 U.S. 613, 102

s.ct. 32?2, 73 L.Ed.zd 1012 (1982). Al-
though, in Rogers, the Court reaffirmed
that voting dilution claims required a show-
ing of intent, the Court upheld a finding of
dilution on the basis of objective indicia of
discrimination. ld. aL 6D-27, 102 S.Ct. at
327H1. We then returned this case to the
district court for reconsideration in light of
Rogerc. Jones v. City of Lubltock,682 F.2d
504 (5th Cir.1982).

While the district court eonsidered the
case on remand, Congress worked yet an-

l. As mentioned hereafter, Congress has not
even purported to "overrule" Bolden in the
sense of substituting a different interpretation
of the substantive meaning of the fourteenth
and fifteenth amendments. Nevertheless, Con-

uary 10-13, 19&3, and, on January 20, l9&3,

found that the at-large scheme violated
both the fifteenth amendment and section 2
of the Voting Rights Act. Although the
court largely adopted its previous findings,
additional evidence of p,olarized voting, and
of the circumstances surrounding adoption
of the aLlarge system persuaded the court
both that the system had discriminatory
results, and that the motives of the original
charter committee that adopted the atJarge
system had been invidious.

The court then proposed redistricting
plans, conducted oral argument and, on
March 4, 1983, ordered a new plan for the
City into effect. The court-ordered plan
called for a six member council elected from
single-member districts, and a mayor elect-
ed at large. The plan retained both the
prior terms of office, and the staggered
terms for council members.

II. THE PARTIES' CONTENTIONS.

The City assaiis the lower court's conclu-
sions on both the constitutional and statuto-
ry issues. On the fifteenth amendment is-

sue, the City adopts a position that is

straightforu'ard; the factual record in sup-
port of intent findinp5 is too weak to sur-
vive review under the clearly erroneous
rule. On the issue of section 2 of the Vot-
ing Rights Act, the City raises constitution-
al, interpretative and factual challenges.
The City argues that: (1) Congress has

adopted an unconstitutional standard that
is too vague to enforce; (2) Congress ex-
ceeded its constitutional authority by pro-
scribing electoral systems without a show-
ing of intcnt; (3) the Act, by codifying pre-

Bolden law, effectively readopts a standard
of discriminatory purpose; and (4) the trial
court misinterpreted section 2 by unduly

gress, pursuant to its authority under section 5

of the fourteenth amendment and section 2 of
the fifteenth amendment, has legislativel]' pro-
scribed political systenls that the constitution
might suffer. See section \'.A. 2., infra.



370 72? FEDERAL RE

relying on the evidenee of polarifrd voting.
Finally, on the issue of remedy, the City
maintains that the court adopted a plan
that artificially inflates minority voting
strength and ensures disproportionate mi-
nority representation.

III. THE FIFTEENTH AMENDMENT.
The standard applicable to fifteenth

amendment claims is presently unclear,
Before Bolden, courts had not analyzed vot-
ing dilution claims based on the fifteenth
amendment in a manner distinct from
claims brought under the fourteenth
amendment.z The plurality of the Justices
in Bolden, however, suggested that the fif-
teenth amendment proscribed only direct
interference with registration and voting.
446 U.S. at 61-65, 100 S.Ct. at 149&-1498
(plurality opinion of Stewart, J.). There-
after, the Supreme Court explicitly indi-
cated that the scope of the fifteenth amend-
ment remained an open question. Rogers v.
l,odge, 458 U.S. at 619 n. 6, 102 S.Ct. at
32?6 n. 6. The parties appear to operate
under the assumption that the fifteenth
amendment proscribes voting dilution, and
that the dilution must be purposeful. See
Nevett lI,57l F.2d at220 (fiftrenth amend-
ment may only be invoked to challenge
purposeful voting dilution). We review the
findings under that same assumption.

Both parties recognize that the district
court's crucial finding concerns whether the

2. Some courts have identified two separare the-
ories under which a plaintiff might show that a
redistricting plan discriminates invidiouslv.
E.g., Zirnttter t. l[cKt'itltt,rt, 485 F.2d 1297, ;t
1304 (sth Cir.t974). According ro these cases,
a plaintiff may show either a "raciall5, motivat-
ed gerrymander"-Gomillion v. Lightfoot, 3M
u.s. 339, 8l S.Ct. r25, 5 L.Ed.2d ll0 (1960) is
the paradigmatic case---{r an apportionment
scheme that operates to cancel out the voting
strength of a minorit)' group. E.g., White v.
Regt'stt,r, 112 U.S. 755, at ?66-?0, 93 S.Ct. 2832,
2339-41, 37 L.Ed.zd 3I4. The two lines of
cases were theoretically distinct because the
latter, or "dilution," line of cases did not, under
earlier interpretations, require a showing of in-
tent, while a racial gerrymander did contem-
plate a showing of intent. See Zimmer v.
McKeithen,485 F.2d at 1304. Arguably, these
two lines of cases are brought respectively un-
der the fifteenth and fourteenth amendments.

ORTE& 2d SERIES

191? charter commission that adopted the
I at-large system intended to excldde black
electoral participation. Both parties, more-
over, re@g'nize that the finding of intent
must rest entirely on evidence concerning
one member of the charter commission.

James L. Dow, a charter commission
member, owned and edited the Lubbock
Morning Avalanche, a newspaper which, at
the time, circulated to no more than 700 of
Lubbock's 4000 residents. Between 1g09
and 1924, editorials appeared on subjects
ranging from the black electoral franchise
to the very presence of blacks in the City.
The editorials contained a series of vile
racial slurs. Various editorials took the po-
sition that Lubbock's blacks would carry
disease, cause crime and invite further in-
flux of blacks into Lubbock. One editorial
in 1909 recommended disenfranchising
blacks; a second in 1924 warned of black
efforts to exert political influence.

Other evidence suggested both that the
editor bore responsibility for the paper's
views, and that like views prevailed among
the City's white citizens. A former employ-
ee of the paper described the extent of
editorial control that Mr. Dow exercised
over the paper. That witness also described
the prevelance of Ku Klux Klan influence
in the City. An expert witness described
the historical backgr<-rund of contemporary
reform movements and opined that exclu-
sion of participation by minorities-both ra-

We do not think that the distinction between
"gerrymander" and "dilution" cases has clearly
survived later developments in the law. Thus,
some courts have treated what were essentially
racial ger4,rnander claims as voting dilution
cases. Ser,. e.9.. Kirkseu t. Boonl ttt sul,erti-
sors, 554 F.2d 139, 142-43 (Srh Cir.) (en banc)
(claim that single-member district lines frag-
mented cohesive black community), cert. de-
nied, 434 U.S. 968, 98 S.Ct. 5r2,54 L.Ed.zd 454
(1977). Furtherrnore, a dilution claim brought
under the constitution must rlbw inClude proof
of discriminatory intent. Rogers v. Lodge,4S8
u.s. 613, 6tG-t9, 102 s.cr. 3272,3275_77,73
L.Ed.2d l0l2 (1982). If this circuit ever has
regarded the fourteenth and fifteenth amend-
ment voting rights causes of action as distinct,
that distinction has vanished \,,,'ith the coales-
cence of the "ger4,rnander" and "dilution" line
of cases.

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JONES v. CITY OF LUBBOCK
r' CltE.sZ27E2d364 (l0SO

t
371

cial and political-provided a partial potive
for the movement to atJarge goverament.

[,2] As the City views the evidence,
the connection between the appearance of a
few editorials over the space of 12 years
creates too tenuous a link between the
probable views of a single citizen and the
driving force behind the charter commis-
sion; thus, the City argues, the evidence
cannot suffice to sustain the finding of
discriminatory intent. To reverse the find-
ing of the district court, of counre, we must
proceed under the clearly enoneous rule.
Fed.R.Civ.P. 52(a); see, e.g., Rogen v.
Lodge, 458 U.S. at 6D-%, 102 S.Ct. at
3218-79; Chescheir v. Liberty Mutual In-
surance C,a., 713 F.%J. tl41, 1148 (5th Cir.
1983). Only if, on a review of the record,
we derive the clear impression that a mis-
take has been made, may we second guess
the conclusions of the district judge. See
Unitcd Statcs v. United Statcs Gypsum, B33
u.s. 364,395, 6g S.Ct.525, 541,92 L.Ed. ?46
(re48).

'We note, however, the multiple inferenc-
es that this evidence requires. There is no
direct evidence that Mr. Dow authored the
articles; thus, the evidence must fairly at-
tribute to Mr. Dow the articles'statements.
There is no direct evidence that those senti-
ments affected Mr. Dow's participation in
the charter commission; thus, some evi-
dence must suggest that Mr. Dow would
have espoused those views in connection
with the City's form of government. Final-
ly, there is no direct evidence that Mr.
Dow's alleged views influenced the commis-
sion's deliberations; thus, some evidence
must suggest either that these views played
some part in the eommission's deliberations
or, at least, that other committee members
actively shared these views.

E. _ln Arlington Heights v. Metrorytitan Housing
Dev. Corp., 429 U.S. 252, 97 S.Ct. SS5, S0
LEd,zd 450 (1977), the Court suggested that a
plaintiff may demonstrate intent circumstan-
tially through evidence of: (t) the historical
background of the decision; (2) the sequence of
events leading up to the challenged decision;
(3) procedural or substantivi di.:,:rr-tures from
normal decision-making: a: .. ., statements,
including legislative or adrn:::.tr:,tive histor1,,

The record might persfuade us that the
firct two inferences are sound. The best
available evidence suggests that Dow con-
trolled the.paper's views to an extent that
he is fairly chargeable with at least approv-
ing them. We doubt that the district court
mistakenly imputed the views to Mr. Dow.
Although Lubbock lacked a substantial
black population when the charter commit-
tee sat, the editorials do espouse an exag-
gerated @ncern for keeping both the politi-
cal system and the City itself free of any
black influence. On that basis, we must
acknowledge that Mr. Dow could have en-
tertained the possibility of structurally lock-
ing blacks out of the political system.

t3] The sparse record, however, leads us
to conclude that the final inference goes too
far.3 C.ertainly, the paper's circulation and
the historical context makes palatable the
notion that Dow's views had more than
limited appeal. Yet, we know nothing of
the other charter commission members.
The black population of Lubbock in 1920
eonsisted of only 66 persons. Particularly
in light of pervasive statutory limitations
on black participation, the notion that the
fifteen charter commission members con-
cerned themselves with adding a superflu-
ous means of ensuring black political pow-
erlessness appears implausible.

We could certainly accept that the Luh.
bock electoral system effectively maintains
the effects of other past denials of access.
We might even accept findings that the
charter commission would have adopted
such a system if its members believed that
the black residents represented any genuine
political threat. We do not, however, per-
ceive enough evidence to affirm findings
that the commission adopted the electoral
system, even in part, because it would pre-

reflecting on the purpose of the decision. Id. at
267-68,97 S.Ct. at 56zt{S. Undoubtedly, the
evidence here sheds some light on the historical
background of the Lubbock at-large systenl
The record, however, tells us nothing about the
events or procedures attending the lglZ initia-
tion of that system. We are asked not to judge
intent from the "statements" of the legislative
body, but rather those of a single member.



_ l*_

372 ?27.FEDERAL REPORTER, 2d SERIES

vent blacks from participating in
toral process.

IV. THE VOTING RIGHTS ACT.

A. Constitutionality.

As the City characterizes the 1982 amend-
ments to the Voting Righls Act, those
amendments purport to overrule the judici-
ary's interpretation of the constitution and
substitut€ a meaningless standard that pe-
nalizes municipalities without sufficiently
informing them how to conform their elec-
toral systems to the law. By indefinitely
identifying the type of political system that
violates section 2 of the Voting Rights Act,
Congress, in the City's view, produced a
standard so vague that it violates due pro-
cess. By allegedly interfering with a judi-
cial prerogative--*onstitutional interpreta-
tion--{ongress, in the City's view, exceeded
its power under section 5 of the fourteenth
amendment and section 2 of the fifteenth
amendment.

[4] 
- 

Before considering the merits of
these claims, we note an oversight in the
proceedings below. Notwithstanding the
presence of a challenge to the constitution-
ality of section 2 of the Voting Rights Act,
neither the parties nor the district court
followed the procedures set forth in 28
U.S.C. S 2103(a) (1982).{ Those procedures
contemplate notice to the Attorney General
of the United States, together with an op
porlunity to intervene. The certification is
not discretionary. See Wallach v. Lieber-
man,366 F.?l 254, %7 (2d Cir.1966); ?A C.
Wright & A. Miller, Federal Practice &
Procedure S 1915, at 571 (West 19?2).

t5] Ordinarill', we would interrupt these
proceedings to await the input of the attor-

4. We note that the district court may well have
believed that no constitutional challenge was
before it. The City did not include the issue in
the pretrial order. R. 2,240-53. At oral argu-
ment in the disrrict court, one of the City's
lawyers did address the scope of congressional
authority to modify Supreme Court interpreta-
tions. k 6, 724-25. A confused exchange
between the judge and the lawyer ma.v- have led
the judge<uite reasonably-to conclude that
the City was conceding the constitutionalitl of
section 2. ld. at 725-26.

ney general. In this case, howevef, two
cdnsiderations militate in favor of adopting
a different procedure. The action has al-
ready prcceeded to final judgment. The
pendency of elections'in the City of Lub.
bock counsels that we adjudicate these is-
sues with dispatch. Accordingly, we invoke
the procedure outlined in Thabher v. Ten-
nessee Gas Transmission Co., 180 F.Zt. U4,
648 n. 7 (5th Cir.), cert. denied,340 U.S. 829,
?1 S.Ct. 66, 95 L.Ed. 609 (1950); c.f. Fbrctt
v. Missr'ssippi Statn Medical Ass'n, lnc.,585
F.zd 765, 779 (sth Cir.1978) (adopting same
procedure for State certification under 28
U.S.C. S 2l03(b)). Upon issuance of this
opinion, a copy will be certified to the attor-
ney general. In the event that the attorney
general believes that intervention is re-
quired, we will promptly entertain his mo-
tion for rehearing.

1. Vagueness.

The City invokes the familiar standard
that a statute ma1, not sanction conduct
defined in terms so unclear that those regu-
lated must guess whether their actions are
lawful or not. &'e, e.g., Papachristou t,.

City of Jaeksonville, 405 U.S. 156, 162, 92
s.cr. 839, 843, 31 L.Ed.2d 1i0 (1972). The
vagueness of a law not only u,ithholds fair
notice of u,hat those regulated may do, but
also leaves unwarranted discretion in the
hands of enforcement authorities. 8.g.,
Grayned v. City of Rockford,408 U.S. 104,
108-{9 & n. 5, 92 S.Ct. m\2n8-99 & n. 5,

33 L.Ed.2d n2 0972). The City complains
chiefll' of the inadequac.v of the section 2
language to inform municipalities horv they
may structure their electoral systems to
insulate them from attack.

Even if the oral argument before the district
court fairly raised the constitutional issue, the
failure to incorporate the questi(h into the pre-
trial order raises a serious waiver question. Cf
United States v. Vahlco Corp., 720 F.2d 885,
890 n. 9 (Sth Cir.l983). Neither party has al-
luded to--much less argued-this question of
waiver. Since r,r'e believe that the constitution-
al arguments lack merit, r.r,e u'ill address them
rather than raise and adjudicate sua sponre the
question u'hertret rht jssue of constitutionalit\.
ha s been u :r: r'e.l

the elec- t6
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,.
. JONES y. CIIY OF LUBBOCK

r CltcrsZTFrdSS{ (tg&l)'

t

373

statute's standard is not $usceptible to at_
tack as vag'ue. Id.

[ll, 12] Yet, even if one could regard
section 2 as regulating conduct, we would
find no vagueness. A civil statute would
violate due process only if it commanded
compliance in terms ,,so vague and indefi-
nite as really to be no rule or standard at
all," A.B. Small C,o.,262 U.S. at ?lg, 6
S.Ct. at D7, or was .,substantially 

incom_
prehensible." Busfu, U4 F.Zd at l(tsB.
Even assuming-unjustifiably in our
view-that one could not comprehend sec_
tion 2 of the Voting Rights Act even in
light of the voluminous and detailed legisla_
tive history, we would, at any rate, first
attempt to construe the statute so as to
give it meaning. Federal Election Commis_
sion v. Vanee,635 F.2d at ll4Z

2. Congressional Authority.
The City's attack on congressional au_

thority includes two related components.
In part, the City contends that Congress
overstepped its role under the doctrine of
the separation of powers by usurping the
judicial obligation to interpret the conititu_
tion. In addition, the City asserts, neither
section 5 of the fourteenth amendment nor
section 2 of the fifteenth amendment au_
thorizes Congress to enforce the substantive
provisions of those amendments by prohibit_
ing discriminatory results.

[13-15] The fint part of the City's ar-
gument carries little weight. Seetion 2
does not purport to usurp the judicial role
of defining the substantive scope of the
fourteenth amendment or the fifteenth
amendment. Instead, Congress seeks to
protect the core values of these amend_
ments through a remedial scheme that in_
validates election systems that, although
constitutionally pernissible, might debase
the amendments' guarantees. Congression-
al power to adopt prophylactic measures to
vindicate the purposes of the fourteenth
and fifteenth amendments is unquestioned.
See, e.g., City of Rome v. llnitd Statns, M6
u.s. 156, 173, 100 S.Ct. 1548, 1559, &1
L.FA.%J 119 (1980); fuuth Carctina v. Kat_
zenbach,383 U.S. 30t,BB-?A,86 S.Ct. g0g.

[6,7] Most frequently, the vag{eness
standard has applied to penal statrter.
Fedrerzl frection hmmission v. Lance,6}5
F.zd UBa 1142 (5th Cir.), erL denid,45B
u.s. 917, 101 S.ct. 3151, 69 L.Ed.zd 99e
(1981). Nevertheless, a civil statute may
rcquirc or proscribe conduct so vaguely thai
it violates due process, Exxon Corp. i. Bus_
Dce, W F.zd 1G30, t0BB (5th Cir.l9gl), cert.
denid, 454 U.S. 9BZ, tOZ S.Ct. rB0, ?0
L.Ed.zd 239 (1982), although such a chat_
Ienge contemplates a less exacting standard
of rcview. 8.g., id. at l0BB. ln A.B. Small
b. v. American Sugar Refining Co., 267
U.S. 2&3, r15 S.Ct. 29S, 69 L.Ed. b89 (tgZS),
the Supreme Court stated the rationale for
appllrng vagueness analysis to non_penal
regulation:

It was not the criminal penalty that was
held invalid, but the exaction of obedi_
ence to a rule or standard so vague and
indefinite as really to be no standard at
all. Any other means of exaction, such as
declaring the transaction unlawful or
stripping a participant of his rights under
it, was equally within the principle of
those cases.

Id. at e,9,4s S.Ct. aL D7.

t&l0l The degree of unclarity that the
vagueness standard permits, however, var_
ies according to the nature of the statute,
and the need for fair notice or protection
from unequal enforcement. *e Hoffman
Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 498_99, 102 S.Cr. 1196, 1193_
94, ?1 L.Ed.2d 862 (1982). Secrion 2 does
not apply to circumstances in which either
the need for fair notice or the danger of
unfair enforcement is great. Before a pen-
alty, whatever its nature, creates urgent
need for notice, that penalty must attach to
conduct. See Boutilier v. Immigration and
Naturaliation Service, Bg? U.S.1tg, tA, AZ
s.ct. 1563, 1566, 18 L.Ed.2d 661 (1967).
Section 2 of the Voting Rights Act sets
forth no standard to regulate the conduct of
municipal elections. Rather, section 2 de_
viees a standard for determining whether
an electoral system, in light of its contem_
porary effects and historical context, dis_
criminates. Absent an effect on conduct, a '. tr

."*s



,

374

815-16, 15 L.Ed.2d ?69 (f966). So'long as
Congress adopts lawful and rational mians
to enforce the constitution, the separation
of powers doctrine requires that the judici_
ary, rather than Congress, must defer.
Even if the judiciary may deem the con-
gressional course as unwise, the courts must
acknowledge the nature of the limits that
circumscribe congressional power:

Let the end be legitimate. Let it be
within the scope of the constitution and
all means which are appropriate, which
are plainly adapted to that end, which are
not prohibited but consist with the letter
and spirit of the constitution are constitu-
tional.

McCulloch v. Maryland,l? U.S. (4 Wheat.)
316,341,4 L.Ed. 5?9 (1819).

When Congress has wielded its authority
under the fourteenth and fifteenth 

"r"nd-_ments, Justices of the Supreme Court have
often differed over the wisdom or rationale
for a measure, but the Court has usuallv
upheld the congressional action. See genei_
ally City of Rome v. [Jnited States, aab U.S.
at 177-78,100 S.Ct. at 1561_62; Fullitove t.
Klutznick,448 U.S. 448, 100 S.Ct. 2?Sg, 65
L.Ed.2d 902 (1980); Oregon v. Mitcheil, 4(N
u.s. 112, 91 S.Ct. zffi, 27 L.Ed.zd 272
(1970); Katzenbach v. Morgan, gg4 U.S.
641, 86 S.Ct. 171?, 16 L.Ed.zd 828 (1966);
South Carolina v. Katzenbach, BgB U.S. at
3?3-37,86 S.Ct. aLglb_%. On those occa_
sions when the Court has stricken enact-
ments as exceeding congressional pou,er un_
der the enforcement clauses of the four_
teenth or fifteenth amendments, the con-

5. Various Justices have proposed limitations on
the rationalit,. and propriety of congressional
enforcement authorit).. Congress ma! not indi-
rectly repeal other provisions of the constitu_
tion or violate the substantive guarantees of
the amendments. Fuililove v. Klutznick. 448
U.S. at 528 n. 7, I00 S.Ct. at 2800 n. 7 (Stewart,
J., dissenting); id. at S4B & n. 23, lO0 S.Ct. at
28i0 & n. 23 (Stevens, J., dissenting); Oregon
v. Mitchelt, 400 U.S. at 128, 9l S.Cr. at ,66
lgqiliot of Black, l.); Katzenbach v. Morgan,
384 U.S. at 651 n. 10, 86 S.Ct. at t?24 n. tO.
A.lthough the founeenth and fifteenth amelrd,
ments empower Congress to limit the authtrrir.,.
of states and local governments to g,,r.ri,
themselves. Citl' of Rome v. Linited S,u,i,, ., ,.
U.S at 178-80. 100 S.Ct. at 1562-63. (_r,;,-,

727 FEDERAL REPORTER. 2d SERIETS

gressional objectiie has usually deviated
f,tom the central purposes of those'amend-
ments-to ensure black equality. See Orc-
gon v. Mitchell,4fi U.S. at 129_80, 9t S.CL
at 267 (opinion of Blrck, J.) (statutory right
for 18 year old to vote in state elections too
far removed from interest in preventing
raciaf discrimination in voting); id. at ?f,41
96, 91 S.Ct. at 349-80 (opinion of Stewart,
J.) (18 year old vote provisions too far re_
moved fiom interest in remedying past dis_
crimination or preventing present discrimi_
nation). Striking down section 2 would re_
quire that we find the statute substantially
less rational or substantialll, less justified
by congressional findings than the rest of
the Voting Rights Act, which has gained
judicial approval. We do not so find.s

C,ongpess heard extensive testimony
showing that the full exercise of the fran-
chise by American minorities still suffered
from the effects of electoral systems that
hinder minoritl, input into the nation's deci-
sion-making. See, e.g., Hearings Before
the House Subcommittee on Civil and C,on-
stitutional Rights of the Committee on the
Judiciary, 97th Cong., lst Sess. on Exten-
sion of the Voting Righls Act 986-95 (U.S.
G.P.O.1982) [hereinafter cited as House
Hearings] (MALDEF testimonl, on continu-
ing electoral abuses in Texas); rd at 5g0_
751 (Lawyers Committee on Civil Rights
Under Lau' testimonl' on voting discrimina-
tion in Mississippi); rd at b9G621 (ACLU
and NAACP testimonl' on lack of access to
political pro(:esses in Georgia). Congress
carefully considered u'hether the present

may not lightlt'strip the stares of this authori.
ty. See Oregon v. Mitchelt,4O0 U.S. at I28, 9t
S.Ct. at 266 (opinion of Black, J.); id. at 293
96, 9l S.Ct. at 348 50 (opinion of Stewart, J.).

We find no basis to trelieve that Congress has
violated any other provision of the constitution
or retracted any protections recognized by the
fourteenth amendment or the fii.ienth.amend-
ment. Indeed, the City has not suggested as
much. As noted infra, we do not belie.r,e that
Congress lightly interfered with state and mu-
nicipal self-governmenr. ln light of the legisla_
tive fact-finding and the limited nature oi the
intrusion into state and municipa.l self-determi-
nation, 'A'e find no deviation from any of these
pruposed limitations on Congressional authori-
t\. :,.

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F,,

. JONES v. CIIY OF LUFBOCK ,, ?rlt
constitutionar jurisprudeite."o.n 

"",frrlr?lt-rX fffti the morc modest step of ,r;;tected minority voting."ght". b.g., S.n"p. to states and municipalities the burden ofNo. 417, 9?th Cong., Za S"sr tO,'iiriitii accommodaring their political systems when

&i:i'"H;131: #13;,f*l,i*;*l tr'"i'v.'"''ffirj prejudils ;,;;;;
2e (1e81); rior'. n-""'ing", ,r!7,, 

"; 
iil; fl#[;0il'1.,ti"r"fLr"r#'JjljLr?:ii;(statement of_Joaquin euiU);' ii. ,i6z intended.(statement of Rev. John Nettles). C"rg"r,

ryf]9cted upon the propriety of ;he ;;;u;
in Jight of the constiiutional limits ;; its B. Construction of Section 2 of the Vot-

91f9rye19nt power. see S.nep. r'i;. ;i; ing Righls Act.
89-4i], 1982 u.s.code cong. & ea.uews ai In essence, the city's argument concern-2l\2! (oneluding that amendm"rt" 

"orn- 
i-ng the interpretation of seJtion z asr.s u, tported with Supreme Cotrt analysis in rul- fina- tlat Congress meant to adopt a stan-lilove, Mitchell, South Carolina'v, Katin- dard-exactly opp*it 

-to 
tf," or"."*pr[itiy

bach and Katzenbach v. Morgan)! s9t fo-rth ni, tf," ,t"trt". The City posits
[6]. Acting on this record, Congress, in that Congress defined the meaning oi ,""-

o.ur vi9y, could appropriateiy aJt"i#r" tion.2 by^referring to the case tai, Uefore
that a "tesults" tesi was necessary to en- Bol.den.. Codiffing pre-Bolden ta*, the Ciiv
forrce the fourteenth and fifteenth"ur"nJ- maintains, reimposes an intent standard be"-
ments.- Assigning a non-intent standard to cause both the Supreme Court and this
an enforcement measure does not po." u court have held that voting dilution claims
serious constitutional obstacle. iity ir always turned on a showin!of intent.i 

-CeJ

Rome v. unitcd states,446 u.s. ut i"z-ii, s^eyerally Bolden, 446 u.S. at 65--?0, iil
100 s'ct. at rb59-60. 

'where 
a";s;;;, ;; s.ct. aa 

-1498-160r 
(pturarity 

"pirl"', 

-"i
the basis of a factual inuestigafin, 

-pe; 
_S_le1'art, 

J.); Nerett ii, slt f.za at n7_;i.
_T]l:t^_11-i1,".facially 

neutral ,n'"uru.u '"..- we begin by briefly recounting the develof
nes lorward the effects of past discrimina- ments in voting dilution jurisprudence intion,.congress may even enact blanket pio- order to place Ihe parties; 

".grr.nt, lnioilDlI,lons against such rules. See Souli perspective.
carclina v' Katzenbaei' 

1g, -g.s. "t 
$a,l; voting rights law has been transformedS'ct' at 821(literary tests). Here, ilrd";; throughout the seven years that this case

iII

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-{

6.. RecentJy, Judge politz of this court extensive-
ly' canvassed the rationale and constitutionalitv
of^section 2 in Major v. Treen, sri.nrppljii,
12:1s LE 

D La.le83) (three iroe.-'Jri,i"tcoun). Our views accord witn tnal analvsis:
Empirical findings by Congress of persistent
aDuses of the electoral process, and the ao_parent failure of the intent test to rectiiv
those abuses, were meticulorrlv ao""i"ni"i
ard bone out by ample tesdmony. S"r.J on
1l!i! Ildne..the legislators reasonably con_
cruoed that substantial amelioration of i altu_tion plaintiffs sratutory burden wai ;.;;;;eo. Attholgh ostensibly contradictory of the
suprerne Court,s holding in Bolden, we per_

!!i"" S 2 as. merely preicribing 
" iotioi Lremove 

-vestiges of past official discrimina_
uon and to ward off such discrimination inthe future. 

.Congress has not expanded theLonstttutton,s substantive guarantees, butsimply redefined and strengthened the statu.
tor-v protections around core constirutionat
v.alues, 

-thus oiercrs::-rF its authorit5. sirhrr
the conflnes of th. r-r isiitution.

574 F.Supp. at 347 (footnotes omitted).

7. The development of the constitutional juris-
prudence on voting dilution has not f""f."O-f*
tnstances in which courts have arguably re.
vised the meaning of earlier ."r".. 'in 

tt,i, dr-preme Coun, for example, lhe Bolden oluraliiv
abruptl]'amounced thar the White v. Regestir
case,..which contemporary- courts had rrilwed
as.a."resulrs', case. required a showing ofdis-criminatory intent. See Botden, n<e 

"U.!.-at
68-70, t00 S.Ct. at ISOO_ISOI (pluralitv opii-ion of Stewart, J.). Even the-auttoi-oi'tt,u
:!lni:n,il Wh.ite v. Rigesrer apparently 

"gr.;d.>ee Botcten,446 U.S. at l0l_03, tOO S.Lr. atl5l7-18 (White, J.. dissenting). a panel oittr"Fifth Circuit undertook a similar *irt".prut"-
tion of Zimmer v. McKeithen S"" fr[r.iri fl,
571 F.2d at 220-2g. In both instances fellowjurists criticized u,hat thev perceiveA ai aninconsistencl'. See Bolden, nC6 U.S 31 lr.r : _1 i-
100 S.Ct at _1518-39 (Marshali. J , d,. ;j.Ner?rt, 571 F.2d at 231_3E (\f,,isdor:.. ,,:;_
cialll' concurring).



727 FEDERAL REPORTER, 2d SERIBS

i;
\-r*

376

has been pending. Arguably, ss many ar,
six slightly different standards trarie app[ea
in voting dilution cases during this perloa.e
To date, neither the Supreme Court nor this
court has extensively considercd the inter-
prctation of section 2 of the Voting Rights
Act.

1. The Objective Factor Test 19ZB-1922.

Before 1973, the Supreme Court had rec-
ognized, at least in dicta, that electoral
schemes might violate the constitution by
minimizing or caneelling out the voting
strength of racial or political minorities.
Whitromb v. Chavis,403 U.S. lZ4, 14?,-44,
91 S.Ct. 1858, 186H9, 29 L.Ed.zd 363
(19?1); Burns v. Richardson, g84 U.S. ?8,
88, 86 S.Ct. 1286, 1294, 16 L.Ed.zd 3?6
(f966); Fortson v. Dorsey, B?9 U.S. 4gB, 489,
85 S.Ct. 498, 501, 13 L.Ed.zd 401 (1965).
The Court first held that an electoral
scheme unconstitutionally diluted the vot-
ing strengl,h of minority groups in White v.
Regester,412 U.S. 75b, 765-70, gg S.Ct.
n32, ?.33941, 37 L.Ed.zd 314 (19?3). To
establish dilution, the Court required a
plaintiff "to produce evidence to support
findings that the political processes leading
to nomination and election were not equally
open to participation by the group in ques-
tion-that its members had less opportunity
than did other residents to participate in
the political processes and to elect }egisla-
tors of their choice." Id. at ?66, gg S.Ct. at
%39,

Although Regester never unambiguously
stated whether a voting dilution claim con-

8. Although courts and scholars may adopt dif-
fering views of the meaning of these cases, the
following cases arguably applied the following
distinct tests:

l. Zimmer v. McKeithen,4SS F.2d 1297 (Sth
Cir.l974) (en banc) ("results" test based
on objective "primary', and,.enhancing"
factors), affd on other grounds sub nom.
East Carroll Parish Schl. Bd. v. Marshall,
424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d
296 (1975).

2. Kirksey v. Bd. of Supena'sors, SS4 F.2d
139 (5th Cir.) (en banc) (Zimmer test
with additional requirement that plaintiff
show continuation of effects of past offi-
cial discrimination), cert. denied. 434 U.S.
968, 98 S.Ct. Sl2, s4 L.Ed.zd 4b4 0977).

templated I showjng of discriminatory pur-
pose, lower courts, including this court, fo-
bused on the quality of the evidence that
the Eegester Crcurt had deemed sufficienl
In Zimmer v. McKeithen, 485 F.2d l29Z (Sth
Cir.l9?3) (en banc), 'aff'd on other grounds
sub nom. East Canoll Parish &hool Bcr.rd
v. Marshall, 4% U.5.636, 96 S.Ct. 1088, 4?
L.&1.2d 296 (1976), this court analyzed the
evidence relied upon in Rcgestnr and identi-
fied evidentiary factors to distinguish dis-
criminatory election schemes from those
that merely prevented a minority finom ac-
hieving proportional representation. Id. at
130H7.

Recognizing that at-large schemes do not
per se violate the constitution, the Zimmer
court posited that four factors principally
pointed to a discriminatory electoral
scheme: (1) a lack of nrinority access to the
pr@ess of slating candidates; (2) the unre-
sponsiveness of the legislative body to par-
ticularized minority needs; (3) a tenuous
official policy underlfing the preference for
the electoral scheme; and (4) past discrimi-
nation that precluded effective political
participation. Id. at 1305. In addition, the
court recognized that particular features of
the electoral system would enhance the in-
ference of discrimination: (l) the use of
large election districts; (2) majority vote
requirements; (3) anti-single shot voting
provisions; and (4) the lack of subdistrict
residency requirements. fd. Evidence that
the "aggregate of these factors" existed
establisheddilution. Id.

3. Neveft v. srdes, 571 F.2d 209 (sth cir.
1978) (intent test based on .,totality of
circumstances" under Zimmer factors),
cert. denied,446 U.S. 95t, 100 S.Ct. 2916,u L.Ed.2d 807 (1980).

4. City of Mobile v. Bolden,,146 U.S. Sb. 100
S.Ct. 1490, 64 L.Ed.2d 47 (t980) (plurality
opinion) (showing of discriminatory pur-
pose through direct or indirect evidence).

5. Rogers v. Ldge,458 U.S 613,.t02 S.CL
3272,73 L.Ed.2d 10t2 (1982) (intent test
which can be satisfied by evidence of
objective factors under Zimmer and Nev-
ett ).

6. 42 U.S.C.A. g 1973 (West Supp.t983)
("results" based on totalitt' of circum-
stances in light of objective evidentiary
factors).

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. JONES v. CITy OF I,UBBOCK , q7i
2 The Intcnt fiuir.n"nt. ,"*uo'*tffi a plaintiff Juld meet r* rr;r" 2Beginning in 19?6, the Supreme Court sLrdard. e ptaintirr could demons Lratn 

/
decided a series of 

_cases ttrat 
"onsiae"ei 

either through iir*.t o, circumstantial evi-equal protection ehallenges to facially neu- l3nce. 
that ih" g*"-r"nt body adopt€dtral stat€ rules and procedures. tr,e"cor"t the electorar ,"r,8 

" with a dl#,r.ffi;determined that the equar protection.i""r" plry..": that the goverament body main-did not invalidate such. rures o. p.*"Ju[, tuir"a tie scheme i,itr, ai.Jriffi;;;-merely because they disproportionatety ai- p*: o. that the systcm furthered preexist-fected minorities. See personne t e.aiiri_ ing intentional diirimination. Id. at DL.t'rat'or v' Feeney, @^g;s ?6, 
gg s.cL. m2, The Nevett **i,-*o""over, indicated that60 L'Ed'zd 870 (1979) (veterans p""r"r.r.-" courts could determine the existence of dis-rule for civil service exam that benefiteJ criminatory pr"p*" *iilrin the frameworkmale applicants disproportionately); a7_ o-f the Zinier IiJVS.. 571F.pi at D_linglon Heights v. yiyrytitll "iigr;;s 

? rndeed, tr," *Lt observed that twoDeveloPment Cort., !p_U.S. zsz, 9z S.a; zimmerfu";;-;;esponsiveness and ten_555' 50 L'Ed'2d aso (tsJi) (refusai to g.unt uousness-bore little relevance to issueszoning variance to build low-income ho;riil other than intent. Jd. at w,. Tbe zimmerwhich would primarily benefit bru.k ;;;i: factors, tn" lg"rrti'court stated, informdents); washington 
y, _D3vi1, _az6 u.s. 2zg, courts of the type of circumstantiar evi-96 s'ct' m40, 48 L.Ed.zd-.sg? trsioi rl;i dence that *ouii?o* intentionat vote di_guage test for police officers that dack rution. By ;"il;; the ,,signifieance 

andapplicants failed in disproportion"tery h;;; strength,, of ttre"erriience, the district courtnumbers)' In each case, the court requirEJ could-determine *r,"irr". a minority,s vot-direct or indirect evidence sufiicleni to ing strength rr"a n"L, intentionally diluted.*:y I purpose to discriminate. p"rnii, Id. at 4z6.
142 U.S at274,99 S.Ct. aL%)B; ,q,Anstii
Heights, 429 u.s. it zlo,9? S.ct. at b66; --on 

the same day as the decision in Nevett
Dais,4% U.S.; ns-a2,96 S.Ct. at*047- li,.thu same panel of this -u"t a""mua
49. .-' vv v'vl' ov Lwt- 

!y1!"1v. City of Mobile,57t F.Zd 2Sg 6a;
rn right or these cases, rower courts raced !$.t13] i;{{,ul'ffi.*'^?,f*rY tiithe task of reconciling the dissonant an'aty- plying the ,t*a"ra. u"ticulated in Nevett,sis in voting dilution cases based on the itre court "ffi.;;t; air,ri., ourt findingequal protection clause with the ur"qriuo- of voting dilution b".ed o, the zimmercal mess4ge of Dans-that.discrimiriatory factors. ir," *r.t JJnarded that the evi-impact did not suffice.. Initiary, th[ ;;;"i dence demonrtr"i.i iiat tire city had main-determined that a voting d,ution ;; ;il tained an il"d;;;;m for discriminatorynot necessarily require intent where a polit_ purposes. Id. at 246.ical system demonstrably eontinued th" ;i-

fects 
-of 

hisrcricai air."lnrlr"tio; -fi; The Supreme Court rneversed. Without

!.- !2r:! ol srp"*iso., of Hinds cor;;;, agreeing on a single majority opinion, the

xi,T"I' h:{i"f ,t^H' tr r[L:l,."""LJ"Xrj",jt1;?;i J,,"11,f,,1,ilfil
6-y,y.LEd.2d au11n1. h iv;;";i, court's analvsis in Nevett r/. A majority oi
lJl 12d at ztl-ii, ii. 

"ourt 
emphasized 

the Justices agreed that a government body

:lal D:rab and Artington Heights;"d;il must deliberately discriminate before a fed"-

l;;';J:[f :tlliTili1g13,Ht""'.:dii,:l'],r?a#"i]16"","ili:'is;
generally appticalie l; :;;""p;#;; S'Ct' at 14ee-1501 (plurality opinion 

-oi

cases. St€wart, J.); rd. at 9$_101,-l0O S.Ct. at

. Rearfirming rr:, or.rservati3n il r'ilrser, "Tffili[:y#?"k iltr^lx]?;, fil,i#-the iVevett r/ c; , -', proposed three means rner factors as any meaningfur means of



'.#"-*l' ..

378 727 FEDERAL.REPORTER, 2d SEAIES

aseessing intent to discriminate, The olu_
rality characterized the objedtive facLrs
endorsed in Zimmer and Nevett II as ,,fa{
from proof" of purpose. .146 U.S. aL 7Z_?4.
100 S.Ct. at t502-lb03.c

The lack of consensus among the Justices
resulted in lower court confusion. In this
circuit, s€veral panels struggled to decipher
the central message of Botden. While all
the cases acknowledged-as indeed Nevett
/I had-that the rccord must support find-
ings of intent, they differed in their evalua_
tion of the extent to which the Zimmer
analysis survived Bolden. *e Ldge v.
Buxton,639 F.Zd 1958 (Sth Cir.l9g1),"affd
t^r! "2 : fugerc v. l,odge,4sg U.S. OiS, fOZ
s.cL. 3272, ?3 L.Ed.zd iotz (tsaz); corderv. Kirksey, 699 F.2d lt91 (Sth Cir.19g1),
cert. denied, 

- 
U.S. 

-, 
103 S.Ct. 125g:

75 L.Ed.2d aS2 (1983); IulcMiltan v. Escam_
bia hunty, 698 F.zd 1289 (sth Cir.lg81),
y?rllud on rehearing,688 F.2d 960 (sti;
Cjr.1981), probable jurisdiclion noted,
u.s. 

-, 
103 S.Cr. 1766, ?6 L.Ed.2d 341

qga3l. In Eogers, the Supreme Court af_
firmed the invalidation of u, at-large
seheme based largely on findings derivld
from Zimmer factors. 45g U.S. 

"rt 
OZt_St,

102 S.Ct. at 32?&88.

3. Congressional Response &o Bolden.
Before the Supreme Court decided Rog_

elrs, Congress reacted to the decision in Bil_
den. In June of 1982, Congress amended
-:!i*. 2 of the Voting RighL Act to pro_
hibit electoral practices and procedures ihat
::".td discriminatory resulls even though
the responsible government body had riot
installed or maintained the elecioral prac_
tice or procedure in order to discriminate.
Originally, the Act had merely tracked the
language of the fifteenth amLndment, the
0. The plurality views on the Zr?nmer factors

could not muster support from other Justices.
Justice Blackmun concurred in the result solely
because- he regarded the tower court's remeJy
as an abuse of discretion. ,+46 U.S. at gO_gj,
100 S.Ct. at 1506-1508 (Blackmun, J., concu._ring). Justice Stevens agreed that the Zimmer
factors did not offer a meaningful standard, but
rejected any consideration of subjective inient.
,146 U.S. at 90-92, 100 S.Ct. at l5l l_lSI3 (Ste_
vens, J., concurring). While Justices Marshall
and Brennan did not belier,e that intent should

Voting Rights Acr of 1965, Title.I, S 2, ?9
Stat. 4t!7, and the Bolden plurallty traa con-
strued its provisions as coextensive with the
fifteenth amendment. rt46 U.S. at 60_61,
100 S.Ct. at 149b-1496 (plurality opinion oi
Stewart, J.). As amended, the statute
reads:

(a) No voting qualification or prerequi_
site to voting, standard, practice, o. p"o-
cedure shall be imposed or applied by any
State or political subdivision in u ,r"nrui
which results in a denial or abridgment of
the right of any citizrtn of th; United
States to vote on account of race or color,
or in contravention of the guarantees sei
forth in section 19?SUfX2) of this title
[which applies the Act's protection to
members of any language minority], as
provided in subsection (b) of this ,""iior.
(b) A violation of subsection (a) of this
section is established if, based on the to_
tality of circumstances, it is shou,n that
the political processes leading to nomina_
tion or election in the State or political
subdivision arr not equally open to partic_
ipation 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 tL
participate in the political process and to
elect representatives of their choice. The
extent to which memlrcrs of a protected
class have been elected to office in the
State or political subdivision is one cir_
cumstance that may be considered: pro_
vided, ThaL nothing in this section estab_
lishes a right to have members of a pro_
tected class elected in numbers 

"qrri t,their proportion in the population.
42 U.S.C.A. S 1978 (West Supp.1983).

The definitional language in subsection
(b) derives from the opinion in White v.

ggltloL voring dilution cases, 446 U.S. at 94,
100 S.Cr. at I5l3 @rennan, J., dissenting); jdat l0Hl, t00 S.Cr. a( tst8_1539 rMaisrrarr
J., dissenting), they agreed ulith Jusiices Black_'
mun and White that the Zimmer factors could
establish voting dilution whether or not it was in_
tentional. Id. at N, 100 S.Ct. at 1506 (Black-
mun, J., concurring); id. at g4, tOO S.Ct. at
15l3 (Brennan, J., dissenting); id at 99 l0t,
J90 S 9,t. a1 tSr6 l5t7 (White, J., dissenting):jd at 136-39, t00 S.Ct. ar lS37 38 lnrarstrati.
J., dtssenling).

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JONES v. CITY OF LUIBOCKt 
Ctrc rt 7:!? F.2d !o{ (le&)

i
379

Begestnr,4l2 U.S. at ?66, 93 s.cr. [t agg. s.Rep. No. 4t7 at n-b, tnz u.s.code
congress adopted the language to signify c,ong. & Ad.News at ?0647; H.R.Rep. No.
that the etatute codifies pre-Bold,en voting Et at B0; cf. white,4u U.S. at zoo-zo, gB

dilution law. H.R.Rep. No. 22? at 29-80; s.ct. at 2ts89-41; zimmer,4gs F.2d at 1g0b.
S.Rep. No. 4L7 at 28-29, 1982 U.S. Code In addition, Congress cited two other fac-
cong. & Ad.News at 206-07. As an in- tors that might have limited rclevance:
terpretative aid, the legislative history whether there is a significant lack of
enumerated typical objective factors to responsiveness on the part of elected offi-
guide the courts in analyzing the discrimi- ciais to the particularized needs of the
natory results of an election system: members of the minority group.

1: the.extent of any history of official whetherthepolicyunderlyingthestate
discrimination in the state or political or political subdivision's use oisuch vot-
subdivision that touched the right of the ing qualification, prercquisite to voting
members of the minority group to regis- standard, practice or procedure is t€ni-
ter, to vote, or otherwise to participate in ous.
the democratic process; S.Rep. No. 417 at D,lggz u.S.fue C,ong. &2. the extent to which voting in the Ad.l,iews aL ?.07; cf. Zimmer,  Sb F.2i'at
elections of the stat€ or political suMivi- 180b.
sion is racially polarized;
s. the extent to which the state or polit- ,^:':#X:;:#fl"':*rffi':"rl':iTT#;l
ical subdivision has used unusually large tive exflan"ation of its meaning. Moreover,
election districts, majority vote require- the staiute aims at ensuring continuity with
ments, anti-single shot provisions, or oth- prior law. Blind reliance on whitc v. Rc_er voting practices ol pfcejurgs that gester, however, may not necessariry pro-
may. enhance the opportunity for discrim- ,ia" tl" most accurate index of the con-
ination against the minority group; gressional meaning in amending section 24. if there is a candidate slating process, Whether or not Wiitcand early-iower court
whether the members of the minority cases are best construed as iurpose eses
group have been denied access tp that does not control.lo At the samelime as itprocess; adopted early case law, C.ongress unequivo-
5' the extent to which the members of cally expressed its understanding thai pre-
the minority group in the state or politi- Bolden law evaluated the discrimir"L.y
cal suMivision bear the effects of dis- nature of election systems solely on thl
crimination in such areas as education, basis of objective criteria. S.Rep. No. arz
emplolment and health, whieh hinders at lg-24, n-%, lgg? U.S.Code Cong. &
their ability to participate effectively in Ad.News at t9Z-fr2,204-{l6.
the political process; Congress has made clear its under-
9' whether political campaigns have standing that a court under section 2 should
been characterized by overt or subtle ra- apply White and Zimmer as purely ,,re_
cial appeals; .ri't 1, 

"^ur. See S.Rep. No. 41? at % n.
7. the extent to which members of the 1r1, 1982 u.S.code cong. & Ad.News at
minority group have been elected to pub- 20H6 n. 111 (,,fhis committee does not
lic office in the jurisdiction. adopt any view of'white as requiring plain-

10. Although Regester never alludes to purpose
as fundamental to its standard of proof, Bolden
construes the case as requiring proof of pur-
poseful discrimination. 446 U.S. at 66, 69, lO0
S.Ct. at 1499, 1500 (opinion of Stewart, J.); rd.
at 97-99, 100 S.Ct. at l5l5-tbl6 (Whire, J.,
dissenting). Under Bolden and its progeny,
Justice White's articulation of the ,,burden of
proof '-the source of the language of amended

section 2-must mean, if anything, that denial
of access to the political process would state I
prima facie case of purposeful voting dilution.
The language of section 2, ho*'ever, treats the
passage in a fundamentalll.' different fashion:
amended section 2 regards the same sho*'ing
of denia.l of access as estacitsiirng a violation of
the Act.



380

tiff to meet Bome 'objective design' test
that is, in effect, a version of the'foreseea-
ble consequences' test of tort law."); 123

Cong.Rec H3841 (daily ed. June %, L982)

(remarks of Rep. Sensenbrenner).ll See

also S.Rep. No. 417 at 19-24,1982 U.S.Code

Cong. & Ad.News at 196-202 (reviewing
prior case law and congressional under-
standing of. White). Thus, whatever the
proper interpretation of early voting dilu-
tion csses may be, Congress has set the

courts to the task of giving them meaning
&s "trsults" cases. See generally Buchanan

v. City of Jackson,?O8 F.zd 1066, 1071-72
(6th Cir.1983) (no need to inquire into pur-

pose under amended section 2).

tl?l We cannot adopt the City's position

that Congress absent-mindedly reimposed a

standard that the legislative history 3o care-

fully rejects. No court that has considered

amended section 2 has adopted the City's
view of the congressional intent. The stat-
ute itself and the legislative history require
that we conclude that the test is one of
"results." 8.g., Buchanan, 708 F'2d at
10?1-?2; McMillan v. Escambia County, ffi8
F.2d 960, 961 n. 2 (5th Cir.1982), probable
juisdiction noted, 

- 
U.S. 

-, 
103 S.Ct.

1766, 76 L.Ed.2d 341 (1983).

C. The District Court's Findings.

The City next urges that we reject as

clearly elToneous the court's findings a-s to

one of the congressional factors-polarized
voting. They attack the accuracy of plain-

tiffs' evidence of polarization, its signifi-

ll. As Rep. Sensenbrenner, one of the House
Subcorffnittee members, made clear:

Let there be no question then. We are
writinS, into law our understanding of the test
in White against Regester. And our under-
standing is that this looks only to the results
of a challenged law, in the totality of the
circumstances-with no requirement of prov-
ing purpose. But should the Highest Court
in the land----or a majority of the Court---<on-
clude there is a purpose element in White,
then the committee nonetheless has drafted a

bilt that does not incorporate this require-
ment. and that is the ultimate legislative in-
tent of the bill *'e are adopirng here todar"

The test to b€ applied af:rti:ri I the totalit)' of
circurnstances as set oi,- ;' \"thite zrgainst

?27 FEDERAL REPORTER, 2d SERIES
I

caf,ce in light of the court's findinls on

responsiveness and the degree of reliance

the court placed on the evidence of polariza-

tion. In response, plaintiffs contend that
the court's findings of rcsponsiveness and

of a lack of a tenuous justification for the
electpral system ane clearly ernoneous.

With the caveats that follow, we find no

clear error.

1. Polarized Voting'

Expert testimony provided a substantial

basis from which the court could have

found polarization. In the initial trial, Dr,

Charles Johnson, plaintiff's expert, testified
that minority candidates received an aver-

age of only llVo of the vote in predominate-

ly anglo precincts in Lubbock compared to

an average of 637o of the vote in predomi-

nately minority areas. At the second trial,
Dr. Robert Brischetto introduced polariza-

tion studies purporting to show that the

race or ethnicity of a candidate overwhelm-

ingly determined voter preference.

Without disputing these studies, the City
emphasizes that minority candidates have

succeeded with the support of the anglo

community in elections for the school board.

These electoral successes purportedly dem-

onstrate that a qualified minority candidate

can succeed in elections in Lubbock, and

that the results of polarization are not se-

vere. Like the district court, we plaee little
reliance on this evidence. Unlike city coun-

cil elections, the school board elections did

not feature a majority vote requirement.

Regester and the case law under it. [sic]
That test does not depend upon anl'finding
or inference of intent, nor does it require--as
some have erroneously suggested-a finding
that there are barriers to the process of regis-

tration and votjng themselves. Thus, the
problems of discriminatory slating and lan'
guage difficulties in the WhiE against Reges-

ter case are important factors to be con-
sidered along with other factors such as ra-

cial bloc voting and the other types of fac-

tors, but they are not essential prerequisites,

if other relevant factors can be shown which
in the aggregate add up to the discriminatory
result.

128 Cong.Rec. at H384I.

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JOI{ES v. CITY OF LUBBOCK
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Furthermore, the testigrony eslablished dif-
fercnces between school district and city
council elections that cast douht on the
probity of school district voting patterns to
demonstrate the extent of polarization in
Lubbock. Until recently, school district
elections were held on a date separate from
the city council elections. Low voter turn-
out, and an electorate highly interested in
educational issues, characterized school
board elections.

tl8l Finally, the City urges that the dis-
trict court's finding of responsiveness sub-
stantially undercuts any statistical showing
of polarized voting. Our cases have ac-
knowledged that, as one invidious result,
polarized voting allows officeholders to dis-
regard minority interests without fear of
political consequences. Accordingly, a
showing of unresponsiveness and polarized
voting can combine to demonstrate "inten-
tional exploitation of the electorate's bias."
Nevett 11,571F.?.d at%. Without unre-
sponsiveness, the Citv contends, polarized
voting lacks significance.

Ugl We do not agree. While combining
polarized voting and unresponsiveness may
make a plaintiff's case "strong," id., the
absence of unresponsiveness does not ne-
gate other inferences that flow from polari-
zation. Whether or not City officials do
ignore minority interests, polarization
nevertheless frees them of political reprisal
for disadvantaging the minority communi-
ty. Ragers v. Ladge,458 U.S. at 6?, 102
S.Ct. at 3Zl9; I,{evett 11,577 F.%l aL % &
n. 16; NAACP by Campbell v. Gadsden
County ,$ioo,l Board, 691 F.zd 978, 983
(llth Cir.1982). Moreover, polarized voting
confirms that race, at least subtly, remains
at issue in the political system. Rogers, 458

12. The dependency on federal funds for most of
thc Citv's "responsive" spending becomes clear
upon examination of the exhibits summarizing
the disposition of community development
block grants. D.Exhs. 19,22,23. Many of the
projects that formed the basis of the district
court's findings on equal provision of municipal
services derived their funding from the commu-
nity development block grants. That program
has, as its primary objective:

the development of viable urban communi-
ties, b-t- providinp decent housing and a suit-

'r3$1

U.S. at 6%, LVz S.Ct. at 8279; Nevett IL
5?1 F.zd aL % n. t6; Terrazas v. Clements,
No. 3-81-220S-R, slip'op. at 37 n. % (N.D.
Tex., January 4, 1984) (three judge district z
court).

[20,2l] Furthermore, we rcject the
City's implicit premise that responsiveness
provides an essential element of an action
under section 2. Even a dilution claim un-
der the constitution does not require unre-
sponsiveness. fugers,4s8 U.S. at 6i5 n. 9,

102 S.Ct. at 3280 n. 9. Under a results test,
Congress has expressly disapproved exces-
sive reliance on responsiveness. S.Rep. No.
477 at D & n. 116, U.S.Code Cong. & Ad.
News at 207 & n. 116. Whether, under the
totality of circumstances, responsiveness de-
feats plaintiffs' claims is a matter we will
consider rnfra.

2. .Eesponsivenass.

For their part, plaintiffs contend that the
district court clearly erred in finding re-
sponsiveness without addressing plaintiffs'
contrary evidence. They point out that
many City policies favorable to minorities
resulted primarill'from the impetus of law-
suits, demonstrations or adverse publicity.
Moreover, they maintain that most evidence
of equal provision of municipal services car-
ries little weight because federal programs
targeting minority areas supplied the funds.

t22) We cannot conclude that the dis-
trict court clearlv erred in concluding that
plaintiffs did not establish a significant
lack of responsiveness lo the particularized
needs of minorities. Minority areas do re-
ceive a substantial share of municipal ser-
vices, albeit largely' on the strength of fed-
eral funding.r2 The Cit."-'s affirmative

able living environment and expanding eco
nomic opportunities, principally for persons
of lou. and moderate-income.

24 C.F.R. S 510.302 (1983). The City must
certifv that:

its community development program has
been developed so as to give maximum feasi-
ble priority to activities that will benefit low-
and moderate-income families. . . .

Id.



382

aetion plan has inereased the share of pub-
lic employment enjoyed by minorities, al_
beit not in the most highly paid or responsi_
ble positions.t, City officials have aeted on
a number of projects of special interest to
Lubbock's black and Mexican-American
communities, albeit perhaps without the
speed or degree of willingness that the
minority communiiies desired.

At the same time, the district court over_
gtated matters by declaring that ,,over-

whelming evidence establishes a real re-
sponsiveness by the City of Lubbock." Sub-
stantial unaddressed evidence suggested
that demonstrations or protest often at-
tended the decision-making process in in-
stances where the City did respond to mi_
nority needs.l. Substantial unaddressed ev-
idence suggested that the City used the
police force in attempls to curtail protest
or public meetings by minorities.l5 Sut>
stantial unaddressed evidence suggested
that the City has used one advisory body-
the Lubbock Human Relations Commis-
sion-as a means of channeling, and often
ignoring, minority input.t6 While we would
hardly reverse the finding of responsiveness
on the basis of this evidence alone, we
would expect explicit credibility findings
before lightly disregarding it.

lE. Stipulated Exhibits AA through II contain
breakdowns of the racial and ethnic composi-
tion of the City work force and its change over
the period during which the affirmative action
program has been in force. While in terms of
sheer numbers, blacks and Mexican-Americans
are well-represented in the work force, the dis_
tribution of minority workers by job category
reveals that blacks and Mexican-Americani are
most heavily represented in service and main-
tenance or clerical positions, and underrepre-
Bentd in administrative, professional and para_
professional positions. Stip.Exhs. EE-GG;
Exhs. SS-13 to SS-22.

Il. For example, one witness testified about the
relationstrip between protests in Lubbock dur_
ing the 1970s and the movement toward in-
creased minority hiring by the City. Supp.R. g,
825-26 (testimony of Andres Tijerina). Anoth_
er witness related how the city council permit-
ted the Mexican-American community to adopt
a Mexican name for one neighborhooa pait<
after members of the Mexican-American iom_
munity mobilized media attention. Supp.R. 9,
1023-26 (testimony of Gilbert Herrera).

727 FEDE.RAL REPORTE& 2d SERIES

I We also note that the circumstsnees sug-
gest that much of the affirmative evidence
of responsiveness is suspect. the City can-
not take credit entirely for the equal provi-
sion of City services; the funds for these
derived largely from federal programs
aimed at economically depressed areas. See
Perkins v. City of West Helena,6?5 F.zd
201,210 n. 12 (Sth Cir.1981), affd, 459 tJ.S.
801, 103 S.Ct. 33, 74 L.Ed.zd 47 (1982).
Furthermore, much of the evidence of re-
sponsiveness concerns prog"ams initiated in
the years during which this action has been
pending. Actions taken during the course
of litigation in which the degree of respon-
siveness has been an important evidentiary
issue cannot be decisive of past and future
conduct by the City.

Despite these difficulties in the evidence,
we cannot conclude that the evidence of
unresponsiveness clearly preponderates.
Nor can we discern clear enor. If the
court had relied on this evidenoe as a factor
strongly militating against relief, we might
be inclined to require further findings. The
district oourt, however, regarded the evi-
dence as inconclusive in light of the dimin-
ished role responsiveness plays under the
results test. We agree that the weakness

15. So, for example, there was testimony that
the City imposed a curfew in minority neigh-
borhoods foltowing the police shooting oi a
black youth. Supp.R. 7, 56& 70 (testimon), of
Thomas Patterson). Another witness, a priest,
related instances of harassment after he held
public meetings. Supp.R.9, 965-66. The same
witness reportd harassmenl. of his parishio
ners after public meetings at his church. Id at
966-71.

16. Several witnesses, including former mem-
bers of the Human Relations Cornmission, testi-
fied about their owrr impressions--as well as
the impressions of the minority communities
generally-that the commissign was a ..front"
or "game" that created only the appearance of
minority input. Supp.R. 5, 174-ZZ (testimony
of Gene Gaines); Supp.R. 6, 33&-407 (testimo
ny of Wayne Dckey); Supp.R. 7,571-72 (testi-
mon1, of Thomas Patterson). One witness re.
lated that a former ma1'or of Lubbock flatlv
told him that the commission should not in-
volve itself in the operation of other govern_
mental bodies in the Ctrr Sir;r;,.R. 6, 450 5l
(testimonl, of Luciano Perr.;,)

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JONES v. CITY OF LUBBOCK
Ctrcie ZZr:ar6t (te&) .

of the evidence and the legislative history discriminated against blacks and Mexican-
of section 2 relegates the guidence'of re- Americans. Combined with socioeconomic
Bponsiveness, in the context of this casl, to disadvantage resulting frorp general dis-
secondary importance. crimination, official discrimination has con-

I ?enuousness Ill:5l,?"mff[T";:u#;L'ii"!il:
The plaintiffs also contend that we tnr, W F.2d at 880 & n' 9; Kirksey v.

should find tenuousness as a factpr militat- Board of Supervr'sors, 554 F.ZJ at 143-4.
ing against the lawfulness of the Lubbock See also Bogers v. Ldge,458 U.S. aL 621-
atJarge election system. Tenuousness, 25, 102 S.Ct. at 3Zl$-80. Polarized voting,
they argue, requircs not a showing of pre- tn a great extent, has rendered and contin-
text, but rather a showing merely that no ues to render minority political support for
strong policy underlies use of the atJarge elected officials unnecessary. Nevett II
system. See Zimmer, 485 F.zd at 1305. 571F.AJ aL D3; see Rogerc v. Lodge, 458

l23l As the district court originally U.S. at 623' f02 S.Ct. at 3279. The persist-

found, the record does not elucidiL thl ence of polarization' moreover' signals that

precise policies underlying the Lubbock at- race and ethnicity still significantly influ-

iu.g. .y.t"r. We have a"lready found that ence the electorate's preferences' Id';

the evidence does not bear out a finding NevettII,STIF'?aat?Sn'76'
that discriminatory purpose motivated The Lubbock at large system aggravates
adoption of the system. Our cases require the political disadvantage of the City's mi-
that we regard this factor as inconclusive. norities. Even under the best of circum-
See Cross v. Baxtcr,604 F.2d 8?5, 884-85 stances, atJarge districts tend to deba^se the
(5th Cir.f979), vacated, 704 F.zd 143 (5th value of a minority's political strength. See

Cir.1983); Hendrix v. Joseph,ssg F.Zt 1265, Whitcomb v. Chavis, 403 U.S. at 159, 91

1270 (5th Cir.1977). Particularly in light of S.Ct. at 1877. Thc Lubbock majority vote
the diminished importance this factor has requirement further submerges the political
under the results test, S.Rep. No. 417 at 29 strength of minorities. Rogers v. Lulge,
& n. ll?, 1982 U.S.Code Cong. & Ad.News 458 U.S. at 627, 102 S.Ct. aL 3%1. Lub-
at207 & n. 117, we doubt that the tenuous- bock's staggered terms and numbered Jrcsts
ness factor has any probative value for create head-t<>head races and promote ma-
evaluating the "fairness" of the electoral jority-minorit),confrontation. Id.; Cit:, o{
system's impact. See id. 'Rome 

v. IJnite1 Slates,446 U.S. at 185 & n.

21, 100 S.Ct. at 15G5 & n.21; Ilevett II,57l
D. The Totality of the Circumstances. F.2d at 21? n. 10. The system effectivel.y
We next consider the district court's find- prevents single shot voting. The lack of a

ing that, in the totality of circumstances, subdistrict residencl, requirement has al-
Lubbock's at-large system deprives minori- lowed residents of predominatell' anglo ar-
ty citizens of access to the political process. eas to dominate city office. Rogers v.

Under the best of circumstances, this court l,odge,458 U.S. al 627,102 S.Ct. at 3281.

has never regarded a finding of a denial of In combination, these con6itions an6 this
access as an easy one either to reach or system have predictable effects. No minor-
review. In the present_ case, the changing iiy candidate ever has served on the Lub_
nature of the applicable standard greatly bock city council. At least in recent years,
complicated the district court's determina- everv mavor and citv council member has
tion. We begin by summarizing what the resided in the ore.*f;elmingly anglo neigh-
findings, in light of our prior cases, reveal borhoods in Lubb,ck. Without a break-
about the Lubbock electoral scheme. down in the pattern of polarized voting, no

The findings establish political eonditions minority candidate is ever likely to serve on
thal disadr antage minorities. In the past, an at-large city council. Neither black nor
the Str'i,,of Texas and the City of Lubbock Mexican-American voters, whether voting

383

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L-:Ar- - -.-



,,

384

- 
Unquestionably, many characteristics of

the Lubbock electoral system do not dispro-
portionately disadvantage minorities. be_
spite the relative political powerlessness of
blacks and Mexican-Ame.i.rnr, Lubbock
City officials have not been especially heed-
l^e.ss 

- 
of minority needs and 

- 
input. The

City's justification for the system does not,
on this record, so lack support that one
could conclude that it is mere pretext. Ex-
cept -to the extent that political realities
may render the effort pointless, Lubbock,s
blacks and Mexican-Americans may register
and vote freely.

[24-27) We acknowledge that this at_
Iarge system does not b""ornu unlawful
merely because it disadvantages a discrete
and insular minority. Rogers v. Lodge,4Sg
U.S. at 616-1?, 102 S.Ct. at Bnb_7A:. Bot_
d-:!,. U6 U.S. at 66, 100 S.Ct. at 1499;
White v. Regester,4lz U.S. at 765,9A S.Ct.
at 2339. Even where an atJarge system
interacts with a racially or ethnicaltl, potar_
ized electorate to the disadvantag" 

"f Jf,"
minority, the "result" is not necissarily a
denial of political access. Witcomi v.
Chavis,lt03 U.S. at lbG{0, 9t S.Ct. at 1g?5_
77. Section 2 of the \roting Rights Act
rcquires that we give effect to tu,o com_
y1n_d. On one hand, we cannot uphold the
Lubbock election scheme if it inflicts a dis_
c11inatory result so severe that the plain_
tiffs have lost equal aecess to the poiiticat
process. On the other hand, the factors
demonstrating a discriminatory result must
amount to more than mere judicial enforce_
ment of proJr6rpli6nol representation. I i

/'--'

727 FEDERAL REPIORTER, 2d SEBIES

Consres: seriously intended to disavew pro_
portional representation and to codify any
bf the spirit of prior case law, the dltrici
court must have evaluated the totality of
circumstances under section 2 so as mean_
ingfully to distinguish the ,,result', in Whit_
eomb-that polarized voting does not ren_
der an at-large system dilutive of minority
voting strength.

While Congress relied heavily on Zimmer
in articulating the statutory test, two subtle
changes in emphasis bear mention. First,
Congress not only failed to follow Zimmer,s
distinction between primary and enhancing
factors, but also relegated two primary faci
tors-unresponsiveness and tenuousness_
to secondary importance. Second, Congress
has articulated as an objective facto-r an
evidentiary issue-polarized voting_that
this court's pre-Bolden cases had not treat_
ed as a matter of primary importance.

The congressional rejection of the pri_
mary-enhancing distinction requires that
we-alter slightly the approach taken by our
early cases. y'Jtnr Zimmer, this court fre_
quently struggled to define which factors a
plaintiff must prove to establish voting di_
lution. Adhering Lo the Zimmer distinJtion
between primarl and enhancing factors,
some cases suggested that a plaintiff must
demonstrate at least one primary factor.
Zintnter,485 F.2d at 1805; ocutrd Dolrld. r,.
Garrison, 553 F.zd gB, g% (Sth Cir.l97?).
Other cases suggested that a showing of
one primary factor alone provided no basis
to render an electoral sl,stem invalid. Hen-
drix v. Joseph, SSg F.Zd at tTt}; McGilt v.
Gadsden Coung, Commission, sgs F.?i n7,
280-81 (Sth Cir.1976).

Rather than empha^sizing any particular
factors, Congress has now directed the
courts to apply the objective factor test
flexibly. The legislative history specifies
that the list of factors does n6t purport to
encompass all the indicia of an electoral
system that discriminates. The factorc
merely focus the inquirv whether the elec_
toral system, in lighr of its pn_,sent effecLs
and historical context, treats minorities so
unfairll' that the.t' effectir.clr i,,. ;,,1.Ls5 gn

separgtely or as 8 coalition, are ever likelv
to elect a eandidate of their choic! in Lub_
bock without substantial angto support.
Lubbock's voting preferences, [o*.r"il 

"""clear; whatever other characteristics the
candidate of minority choice may have, that
candidate will face a serious obstacle to
obtaining substantial anglo support if he or
she is black or Mexican-American. In
short, we do not doubt that the system will
allow "a bloc voting majority over a sub.
stantial period of time consistently to de-
feat _minority candidates . . . .', tt.n.n p.
No. 22? at 30.

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JONES v. CITY OF LUBBOCK
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the political pnooesses. As the Senate Re-
l

The courts ordinarily have not usedfthese
factors, nor does the Committee intend
them to be used, as a mechanical "point-
@unting" device. The failure of the
plaintiffs to establish any particular fac-
tor is not rebuttable evidence of nondilu-
tion. Rather, the provision requires the
court's overall judgment, based on the
totality of circumstances and guided by
those rclevant factors in the particular
case, of whether the voting strength of
minority voters is, in the language of
Forlson and Burns, "minimized or can-
celled out."

S.Rep. No. 411 at 29 n. 118, 1982 U.S.Code
Cong. & Ad.News at 207 n. 118. The legis-
lative history posits that the objective fac-
tors will distringuish an unlawful electoral
system in which considerations of race and
ethnicity pervade politics to the serious det-
riment of the minority, from a permissible
electoral system in which the racial and
ethnie composition of the elected body does
not mirror that of the constituency.

[28,29] The legislative discussion of po-
laized voting requires that we weigh more
carefully the effect that polarization has on
the political scheme challenged. While this
court has often regarded polarized voting as
a prerequisite to a voting dilution claim,
Congress, and, indeed, the most recent Su-
preme Court case, suggest that polarization
carries greater significance. In Wallace v.
House,515 F.2d 619 (sth Cir.19?5), vacated,
425 U.S. 947, 96 S.Cr. 1721, 48 L.Ed.2d 191
(1976), this court first recognized that a
pattcrn of bloc voting could aggravatc the
effects of enhancing factors such as majori-
ty vote rules and anti-single shot voting
provisions; in eombination they effectivell
minimized minority political impact. Id. aL
6?1. This court en banc reiterated that
observation. In I0rksey v. Board of Super-
visors,554 F.2d at 149, the court noted that

17. Polarized voting is not itself unconstitution-
al, and does not lpso facto render the electoral
framework in which it occurs unconstitutional.
United Jewish Organizations v. Carey,430 U.S.
Itl4, 165-67 & n.24,97 S.Ct. 996, 1009-t0 & n.
24, 5l LEd.2d 229 (t977) (plurality opinion of

a pattern of bloc voting could endow a plan
with a "predictable tendency"-to dilute
black voting strength. Id. aL 149. Never-
theless, this court did not regard bloc voting
as the equivalent of a primary factor under
Zimmer. As the court noted in Nevett v.

Srdes, 5&3 F.zd 1361, 1365 (5th Cir.lg?6),
bloc voting does not unconstitutionally di-
lute voting strength without reference to
the other Zimmer factors. Id.t1

t30l In light of the legislative formula-
tion of the "results" test, we believe that
the district court did not err in finding that
the aggregate of the factors, in the circum-
stances of this case, inflicted a substantially
more severe result on Lubbock's minorities
than the one in Whitomb. Lubbock's elec-
toral system incorporates every feature
that courts have identified as aggravating
the impact of an at-large system. Indirect-
ly, these features "inescapably" act as for-
mal obstacles to effective minority partici-
pation. See Washington v. Finlay,664 F.2d
913,920 (ath Cir.1981), cert. denied,45? U.S.
ttm, t02 s.ct. 2933, 73 L.Ed.zd 1333 (1982).
In sufficient combination, as exist here,
these impediments "can operate directly to
'submerge' the minority in a racially polar-
ized constituency; to 'minimize or cancel
out its voting potential;' to affect adversely
its 'political strength."' fd.

In addition, the district court found a
continuitv in effects lrctween the history of
discrimination in Lubbock and the present
levels of minority partieipation. Although
the court believed that voter registration
drives-none of them City sponsored-have,
to an extent, ameliorated these effects, the
present political slstem nevertheless pre-
sen,es a past lack of access. ln Nevett IL
this court noted:

A remotely enacted plan . . . that was
adopted without racial motivations may
become a vehicle. for the exclusion of
meaningtul input because intervening

White, J.); Whitcomb v. Chavis,403 U.S. t24,
153-60,9l S.Cr. 1858, 1873-77, 29 L.Ed.Zd 363
(1971). This court has regarded polarized vot-
ing as a precondition of a voting dilution claim.
Nevett ll, 571 F.2d at 223 n t6, bur nor as
persuasive evidence of ihr,r'::istence of dilution

li
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T



380 727 FEDIRAL REFOBTE& 2d SERTES

gv_ents cause the plan to work that way.
When the morc blatant obstacles to black
scoess are struck down, such an atJarge
plan may operate to devalue black partic-
ipation so as to ignore black needs.

671 F.2d at W,. Although Nevett II re-
quired that the system be maintained for
invidious nessons, section 2 has excised that
requirement.

On the strength of these factors, we find
sufficient support to uphold the distriet
@urt's ultimate finding. Perceiving no er-
nor, we affirm the judgment insofar as it
holds Lubbock's electoral system violative
of section 2 of the Voting Rights Act.

E. Remdy.
Finally, we consider the City's challenge

to the courGordered districting plan. The
City raises a single narrow challenge to the
remedial order. In drawing six single-
member districts, the court allegedly over-
rcpresented Lubbock's minority communi-
ties. As the City sees the matter, the large
minority populations in two of those dis-
tricts ensure that a mere Z6.lVo of the popu-
lation will control 33.ZTo of the council seits.

[31,32] A district judge adopting dis-
tricting plans to replace an invalidated at-
large system must adhere to a middle road.
While a court must avoid drafting a plan as
a device for installing proportional repre-
sentation, trilarshall v. Edwards, 5g2 F.Zd
927, 934-36 (Sth Cir.19?8), cert. denied, M2
u.s. 909, 99 s.ct. %20, 6L L.Fd.U 274
(1979), so also, the court cannot blind itself
to the effect of its districting plan on racial
groups. Wyche v. Madison parish police
Jury, 635 F.2d 1151 (Sth Cir.r981). We
believe that, at least insofar as the City
complains of racial fairness, the court re-
mained well within its discretion.

First, we observe that the City presumes
too much in its statement of the argument.
As drawn, no racial or ethnic group, other
than anglos, has even a population majority
in any of the six Lubbock districts. Far
from creating a "safe" minority district, the
two distrirt. l ith the largest minority con-
centration: ;,ave the following populations:
Districl ) r, . 11.4% anglo, T.go black, 48.5Vo

'Mexican-American and Z.gvo "oLier," and
District 2 has ?5.6Vo anglo, 36.17o black,
86.67o Mexiean-American and 1.6?o,,other."
Obviously, no raciall or ethnic gmup could
dominate elections without either depend-
ing on a coalition with another racial or
ethnic group, or depending on substantial
cross-over voting from other racial and eth-
nic groups.

Nor does evidence suggest that these po-
pulation figures reflect adequately the rela-
tive political strength of each racial and
ethnic group. As the City points out in its
brief, the minority population has a smaller
p,ercentage of voting age population than
anglos. In addition, Mexican-Americans
have substantially lower registration rates
than anglos. When the ethnic composition
of the districts and the characteristics of
the minority populations are taken into ac-
count, the City's proposition about ,,minori-

ty control" of the districts becomes sheer
h1'perbole.

In addition, we would hardly regard the
districts in the court's plan as an attempt to
build ideal minority districts. The court
was obliged to take notice that the Lubbock
black and hispanic populations live, for the
most part, in concentrated neighborhoods.
That settlement pattern compelled the dis-
trict court to abstain from drawing lines
that might fragment either minority com-
munity so a-s to dilute its voting strength.
Kirksey v. Board of Supervison, $4 F.?i at
143. To bring the minority community clos-
er to the City's ideal scenario, the court
would have had to pack the entire minority
population into a single district. Such an
attempt to stack the minority community
might have engendered a similar challenge
for voting dilution. Given Lubbock,s geo-
graphic and demographic layout; we find
no abuse in the court's line-drawing as it
affects white voting strength.

At the same time, we note shortcomings
in the proceedings below that have not been
made the subject of this appeal. The pres-
ent remedial order was entered on March 4,
1983-less than a month and a half follow-
ing judgment on the merits. The court

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UMTEp STATES v. HOOVEB
. ' Cltc.s Zl7 F.2d 387 (1084f

'3F7

UMTED STATES of America,
Plaintiff-Appilee,

Y.

Richard M. HOOVER,
Defendant.Appellant.

No. 8L2390.

United States Court of Appeals,
Fifth Circuit.

March 5, 1984.

Defendant was convicted in the United
States District Court for the Southern Dis-
trict of Texas, George E. Cire, J., of partici-
pating in a strike while employed by the
federal Government, and he appealed. The
Court of Appeals, Randall, Circuit Judge,
held that: (1) prosecution of strike leaders
for participating in a strike while employed
by federal Government, or highly visible,
vocal opponents of the law is not a showing
of impermissible selection or invidious dis-
crimination, and (2) evidence that of four
identified strike leaders, defendant was the
only union officer, and was the only one
prosecuted u,as not sufficient to shou' that
the Government decided tn prosecute de-
fendant because hc u'a^s a union officer.

Affirmcd.

l. Criminal La* el1
Me.rc excrcisc of somc selectivity by

the government in instituting prosccutions
is not in itself prohibited by the Constitu-
tion.

2. Distriet and Prosecuting Attorneys F8
Decision to prosecute one person in-

stead of another is a proper exercise of
executive discretion Fed.Rules Cr.Proc.
Rule 48(a), 18 U.S.C.A.

3. Criminal Law F3l
Defendant allcging sek,ctive prosecu-

tion Lrears verl' healr lrurtien in demon-
strating invirlious I)u!-1 ,,,:, ii hir.h ilvudes or

I

I

;

first solicited comment on court-drawn
plans on the day of finaljudgmeit on the
merits. Although the district cour, con-
ducted oral arg'ument, it condueted no evi-
dentiary hearing.

I33l While it may be clear to us that the
district court-with at least the acquies-
cence, if not the connivance, of the par-
ties-believed that the proceedings merited
expedited treatment, the prnocedures, if
challenged, would have required that we
vacate this order. For the sake of future
oourts, we reiterate briefly some of the
principles that the district court should bear
in mind. Apportionment is principally a
legislative responsibility. 8.g., Chapman v.
Meier, 4fr U.S. 1, 27, 95 S.Ct. 751,766, 42
L.Ed.2d 766 (f975). A district court should,
accordingly, afford to the government body
a reasonable opportunity to produce a con-
stitutionally permissible plan. Wise v. Liy
scomb, €? U.S. 535, 540, 98 S.Ct. Z9B,
2197,57 L.Ed.zd 411 (1978). If rhe govern-
mental body does submit a plan, the court
should, before rejecting it, determine that
the substitute plan itself is unlawful. Id.
For us to pass on the propriety of the
district court's action, we must have either
specific fact findings or, at least, a record
sufficient to allow review. Without hear-
ings, and without findings addressed to the
government body's plan, we would not be in
a position to determine whether the district
court properly exercised its discretion in
rejecting the City's plan.

Fortunately, in this case, the sole chal-
lenge by appellant focuses on the racial
fairness of the court's plan, and the record
in this case is adequate to review the plan's
fairness. Cf. Wyche v. Madison parish po-
lice Jury,635 F.2d aL 1162.

The judgment is REVERSED insofar as
it finds the City's at-large system violative
of the fifteenth amendment. In all other
respects, the judgment is AFFIRMED.
Appellant will bear the cosLs.

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