Correspondence from Guinier to Stevas
Public Court Documents
August 3, 1984

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Case Files, Thornburg v. Gingles Working Files - Schnapper. Velasquez v. City of Abilene Memorandum, 1985. 25f88294-e292-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a28a3989-79b4-47d2-929c-d6abfc8fcca3/velasquez-v-city-of-abilene-memorandum. Accessed May 22, 2025.
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a .l . I', i,- . ''.,.",(, /. 'i(" ,,, ^ IN THE UNITED STiIEs FOR THE NORTHERN DI ABILENE DI MARIA VELASQUEZ, et aI., ) ) Plaintiffs, ) ) vo ) ) THE CITY OF ABILENE, TEXAS, ) et a1., ) ) Defendants. ) CIVIL ACIION NO. CA-1.80-57.W DISTR STR ICT VISION MEMORANDUM The plaintiffs, black and Mexican-American citizens of the City of Abilene, Texas, brought this action in 0ctober 1980 against the City of Abilene and its officials, alleging that Abileners at-large system of electing city council members diluted the votes ol black and Mexican-American citizens. The plaintiffs claim that the at-large provision violates rights guaranteed them by the Fourteenth and Fifteenth Amendnents to the Constitution of the United States as well as 42 U.S.C. $$ 1971, 197), 198r, and 1988. The plaintiffs requested class certification, and on July 14,1981, the court certified the class to include aI] past, present, and future black and Mexican-American citizens of the City of Abilene. In May and June 1982, the trial on the merits was held in Abilene, Texas. The court subsequently entered its findings ofl fact and conclusions of law in the form of a Memorandum Opinion, denying relief to the plaintiffs on both constitutional and statutory grounds and dismissing the suit. That Memorandum Opinion of October ??,1982 is incorporated in this Memorandum and made a part hereof for all purposes. 0n appeal, the United States Court of Appeals for the Fifth Circuit, in Velasquez v. City of Abilene, Texasr 725 F.2d 1017 (1984), remanded the case to this court for further findings of fact and conclusions of law. aI 1,,..!rc--.r (31-i,!itt,'r criliral irt Iixas FILEE ;,?R 2 5 1??5 Accordingly, an additional evidentiary hearing was held on Februaty 21r 1985, and the parties have now filed additional briefs and proposed additional findings and conclusions. The court has reviewed and examined the transcript of the original trial on the merits, as well as the pleadings, briefs, ad arguments of aIl parties. This Memorandum shall constitute its additional findirgs of fact and conclusions of law. / Standards of liability in vote dilution cases 1. Fourteenth and Fifteenth Amendments The starting point for constitutional analysis of a voting system is the rule announeed in City of Mobile v. Bo1den, 446 U.S. 55 (1980), that an at-Iarge voting scheme is not per se unconstitutional. To state a constitutional claim for dilution of minority votirg power, a plaintiff must show that the at-large election system discriminates against persons beeause of their race and that a discriminatory purpose at least in part pronpted adoption of the at-Iarge system. Id. The courts are to look to certain factors listed in Zimmer _v. @(eilhe1, 485 F.zd 1297 (5th Cir. 1975), afF'd on other grounds sub nom., East Carroll Parish School Board v. Marshall, 424 U.S. 6t6 (1976), in determining whether a given voting system is unconstitutional. In the instant case, the court carefully considered all substantial evidence presented, evaluated the evidence according to the Zimmer factors, and concluded in light of all of the circumstances that Abilene's at-large election scheme did not violate the Constitution of the United States. The court's previous Memorandum contains the detailed discussion of facts and law supporting its conclusion that no discriminatory purpose underlies Abilene's election system, and further exposition of this determination is not necessary. The court reiterates its prior conclusion that the at-large election system in Abilene, Texas passes constitutional muster. Therefore, the court will devote the remainder of Lhis Memorandum to examination of the evidence in light of the requirements of the Voting Rights Act of 1965, except for a brief discussion below of a suggested discriminatory purpose behind the 196? revision of the Abilene city charter. ?. Voting Rights Act The Voting Rights Act of 1965, as amended by Congress in 1982, places a different burden on a plaintiff attempting to prove vote dilution. To make out a case for statutory vote dilution, the plaintiff must either prove "discriminatory purpose in the adoption or maintenance of the challenged system of Isic] practice" or "that the challenged system or practice, in the context of all the circtrnstances in the jurisdiction in question, results in minorities being denied equal €rccess to the political process." S. Rep. No. 417,97th Cong., 2d Sess. ?7, replinted in 1982 U.5. Code Cong. & Ad. News 177 , ?O5. Congressional enactment of this results test in Voting Rights Act cases is significant since it is easier for plaintiffs to show a discriminatory effect oF an election system than it is to prove that a discriminatory purpose underlies that system. The Senate Report on the 1982 amendment to the Act suggests a list of factors courts should consider in deciding whether a challenged election system violates the Act. As noted in the report, the factors are derived from the same Zimmer factors employed in a constitutional analysis of vote dilution. The factors include: 1. the extent of any history of official discrimination in the state or political subdivision that touehed the right of the members of the minoriLy qroup to register, to vote, or otherwise to participate in the democratic process; -5- ?. the extent to wtrich voting in the elections oF the state or political suMivision is racially polarized; t. the extent to wtrich the state or political subdivision has used unusually Iarge eleetion districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity For discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, whi.ch hinder their ability to participate effectively in the political process; 6. whether politieal campaigns have been characterized by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to p.rblic office in the jurisdiction. Additional factors that in some cases have had probative value as part of plaintiffsl evidence to establish a violation are: whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the minority group; whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. S. Rep. No.417 at 28-?91 1982 U.S. Code Cong. & Ad. News al ?O6-?O7 ( footnotes ornitted) . Although the court addressed many of these factors in its previous Memorandum in terms of the Zimmer considerations, it did not frontally consider them in the manner suggested by the Senate report. The court will mw discuss each of the factors, explaining in particular the evidence and conclusions to be derived thereFrom concerning polarized voting, the Citizens for Better Government and slatirg, effects of past discrimination, and the 196? revision of the Abilene city charter. -4- Application of Votinq Riohts Act factors 1. History of officiel dlscrimination The court takes judicial notice of the fact that the State of Texas has a long history of official racial discrimination stretehing from before the Civil War to the 1960s. As described in the body and appendices of the court's previous Memorandurn, Texas instituted a poll tax and for many years maintained official barriers to prevent minorities from gaining access to the political process. As with other Texas cities during this period, AbiJ.en" adopied laws that discriminated against persons because oF their race. 0ne of the plaintiffst expert witnesses, Dr. Chandler Davidson of Riee University, recounted the history of official discrimination in Abilene based on his exarnination of newspaper articles and other historical sources. In 1919, the city passed an ordinance requiring separate water coolers for blacks and whites in railway stations and waiting rooms. Tr. 420. A 1942 ordinance prohibited sexual interc-ourse or cohabitation between blacks and whites within the corporate limits of the city. Tr.421. In 194r, an ordinance was passed segregating elevators, imposing a $50 fine if it was violated. }|. Blaeks were not allowed to use the city library, and both blacks and Mexican-Americans were forced to play in segregated parks Lhat were inferior to the parks used by whrites. jg. Cemeteries were segregated, and restrictive covenants concerning race were in widespread use. Tr. 4?1-??, The Abilene publie schools were adninistered by the city until 1957, and the evidence presented by the plaintiffs clearly shows that Abilene schools were separate, but certainly not equal, until they were integrated in the 1960s. The court agrees with the plaintiffs that there is a history of past ofFicial discrimination in Texas ard in Abilene itselF that affected minority access to the democratic process. -5- Z. Racially polarized voting The court approaches the evidence concerning polarized voting in Abilene with Lhe caution suggested by Judge Higginbotham in Jones v. City of Lubbock, 73O F.?d ?r, (5tn Cir . 1984) (Higginbotham, J. concurring). As one would expect, distinguished experts with experience in voting rights litigation testified on behalF of both the plaintiffls and defendants and reached opposite conclusions regarding the existence of polarized voting in Abilene. Testifying for the plaintiffs, Dr. Davidson stated that there are three techniques anployed by social scientists to identify polarized voting: bloc voting analysis, regression analysis, and sample survey analysis. Dr. Davidson by-passed the first two methods erd used a survey to study votirg patterns in Abilene. He explained that he did not perform a bloc voting or regression analysis for any period past 1970 because none of Abileners Voting precinets contained a large enough majority oF blacks or Mexican-Americans such that he could draw reliable conclusions usirq those methods. Tr.511. Based on its understanding of the statistical techniques available to study voting patterns, the court agrees that Abileners Fairly even distribution of blacks and Mexiean-Americans among the voting precincts, at least since 1970, makes Abilene a poor subject for bloc votirq or regression analysis. For the period before 1970, Dr. Davidson presented some evidence of polarized voting in Abilene. He based his conclusion that voting in the 1950s and 1960s was very polarized on examination of the overwhelmingly black Preeinct J box located at Woodson School and a precirrct identified as predominately populated by Mexican-Americans. Tr. 511. In the 1956 statewide refererdum election, he found polarized voting on the issues dealing with a proposed exemption from compulsory attendance at integrated schools, proposed enactment of stricter anti-miscegenation Iarvs, and the interposition of states -6- rights doctrine. Tr. 51r-16. He reached a similar conclusion concerning the 1961 statewide reFerendum on repeal of the poll tax. He also stated that there was polarized voting in the 196?r 1968, and 1970 school board elections. Tr. 517-19. The court agrees that Dr. Davidson's studies reveal some evidence of polarized voting in the 1950s and 1960s. Although, as discussed below, the court is skeptical as to the probative value of referendtrn eleetion results in a polarized voting analysis, the voting results fron the 1956 and 1963 referenda elections show that voters in the l{oodson School precinct disproportionately voted against exemption from mandatory attendarne, stricter anti-miscegenation laws, and interposition and voted for repeal of the poll tax as conpared to Taylor County voters as a whole. This fact is some evidence oF polarized voting in the 1956 and 1967 refererdum elections, but the court is not strongly persuaded that the plaintifFsr statistics are sound. Dr. Davidson's analysis compares one Abirene precinct with vote totals in Taylor County, not just the city of Abilene. This is not a fatal defeet, though, since Abilene constituted 90 percent of Taylor County during the period studied by Dr. Davidson. Tr. 510. However, his eonclusions are speculative since the plaintiffs presented no evidence oF voting results from a predominately white precinct in these same elections so that a complete bloc voting analysis could be accunplished. Instead, Dr. Davidson merely compared results frcrn Woodson School with Taylor County as a rhole without identifying the racial composition of the county or of its constituent precircts other than Woodson School. Neither did the plaintiffs present any figures representing the population of the Woodson Sehool precinct or any other Taylor County box, much less an identified precinct within Abilene itself. -7- Serious credibility problems also arise regarding the plaintiffs' evidence of polarized votirg in the 19621 1968, ard 1970 school board elections. First, the plaintiffs presented no evidence concerning the issues in those races, the qualifications oF the candidates, or any of the many other factors that may have influenced the election. Second, the plaintiffs failed to present any evidence oF voting results from predoninately white precincts so that a cornparison with predominately minority precincts could be made and a rigorous bloc voting analysis could be eompleted. Finally, the plaintiffs failed to translate percentage of votes cast into actual number of votes so that e cunparison of actual votes across the city could be made. Even assuming that Dr. Davidson's studies oF voting in the 1950s and 1960s demonstrates polarized voting, evidence of votirq patterns in the 1970s and beyond does not reveal polarization. Dr. Davidson based his conclusion that Abilene voting is polarized on the results of surveys corducted aFter the 1979 city council race and the 1981 referendum on single-member districts. Dr. Davidson employed surveys since there was rp precinct with sufficient minority population to substantiate the results of bloc voting or regression stud ies . The plaintiffs claim that Hs. Mary Lujan's race for the city council in 1979 clearly reflects polarized voting. The court strongly disagrees and finds to the contrary for several reasons. First, the survey employed by the plaintiffls was not random in the way it identified black voters. Dr. Davidson testified that a panel of persons selected blacks and Mexican-Americans oFf of lists of actual voters to be surveyed. Tr, 659. 0nly one person on the selection panel was someone other than a named plaintiff in this case, an employee of West Texas Legal Services, Inc., or Ms. Lujan's canpaign treasurer. Tr. 661. This hand-picking of minority survey subjects undermines the randorn nature of the survey and raises serious doubts concerning the -8- validity of its results. Second, as the defendantsr expert, Dr. Del Taebel of the University oF Texas at Arlirgton, testified, a post-election telephone survey of voters is inherently suspect since voters may be particularly secretive concerning their votes Following an election and may even Forget for whom they voted. Tr.1?48. Third, nevrspaper publicity of the survey may have skewed the results of the survey. Tr. 1251. Fourth, a survey eoncerning Ms. Lujanrs campaign would not constitute reliable evidence of polarized voting in Abilena, even assuming that it did exist, since she was not a serious candidate. The uncontradicted evidence reveals that Ms. Lujan made no campaign expenditures in her race, if eleeted would have been, at twenty-six years of age, the youngest council person ever elected in Abilene, and was only the seventh woman to ever run For the courrcil. Tr. 664-66. Furthermore, she held only one campaign reception, started her campaign two weeks before the eleotion, and even then did not actively seek election. Tr. 1?49-50.. It does not surprise the court that Ms. Lujan was defeated. In fact, it is remarkable that any relatively unkrpwn candidate who canpaigned as she did would receive nine or ten percent of the vote. Because of these important factors ignored in Dr. Davidson's survey, the court must wholly diseount any conclusion of racially polarized voting gleaned from a study of Ms. Lujanrs 1979 council race. The second survey presented by the plaintiffs to suggest racially polarized voting examined the 1981 referendum on single-member districts suhnitted to the voters after this suit was filed. In this survey, the plaintiffs identified 157 Spanish surnamed persons, 119 blacks, and 41111 Anglos who actually voted in the election. From this group, the plaintiffs obtained cornpleted surveys from 5f Spanish surnamed personsr 40 blacks, and -9- 129 Anglos. 0f theser 9l percent of the Spanish surnamed,77 percent of the blmks, and only 27 percent of the Anglos voted in fevor of single-member districts. Tr.5tr-t4. The plaintiffs argue that these results are conclusive indications of polarized voting, but the court disagrees. First, as Dr. Taebel stated, a referendtrn is rarely the proper subject for polarization analysis. Tr. 1?51. The court rkrpwledged above that the racial referenda issues presented to Texas voters Ln 1956 and 1967 nay be examples of the rare occasions in which referenda can be classified as pro-minority or anti-minority issues. However, the 1981 single-member district referendr,m does not appear to the court inherently to have appealed to the racial consciousness or prejudice oF any voter. Certainly there is no convincing evidence that the single-member district refererdum was a racial minority versus racial majority issue susceptible to polarization analysis. Second, there is a problem concerning the sample size of voters used in the survey. IF the courtts calculations are correct, the plaintiffs reached their conclusions of polarized voting oF whites based on 1.14 percent or 129 of 41111 Anglo voters identified. When compared with the results based on information from 11.76 percent or 53 of 157 Spanish surnamed voters identified and 28.78 percent or 40 of 119 black voters identified, the small sample used to classify the Anglo vote may have overstated the percentage of the Anglo vote against single-member districts. Third, Dr. Davidson's referendum survey suffers from problems similar to those present in his survey of Ms. Lujan's race discussed above. These shortcanings relate to the random nature of the survey, possible bias in questions asked over the telephone, and the impact of newspaper publicity. Tr. 1251. Added together, these weaknesses in Dr. Davidson's survey of the 1981 referendurn on single-member districts undermine his conclusions, ad the court finds that his studies do not support a finding of polarized voting on racial lines. -10- The defendants' expert witness, Dr. Taebel, testified that polarized voting along racial lines did not exist in Abilene. He based this conclusion on two main facts. First, he stated that the evidence presented by the plaintifFs did not demonstrate a pattern of polarized voting in Abilene elections. Tr. 1?54. He noted that the plaintiffsr studies of Ms. Lujan's 1979 courpil race and the 1981 referendum election do not support a conclusion oF polarized voting because of the fundamental failings of these surveys and their Irck of adjustment For factors other than race that may have affected the outcome of the elections. The court discussed Dr. Taebelrs criticism of the plaintiffsf studies when those studies were described above and must agree that the shortcomings he Iists undermine the persuasiveness of Dr. Davidsonts determinations. Second, Dr. TaebeI explained that white voters voted overr,fielmingly for minority candidates in four races. Tr. 1254. These cournil racea involved 'th" following minority candidates: ltr. Joe Alcorta, twice elected; Mr. Leo Scott; and Mr. Carlos Rodriguez. Tr.1254-55. He also concluded that plaintiffsf Exhibit No. 12, entitled'!Percentage of Total Vote Received by Minority Candidatesr" also demonstrates'rthat wlrites have voted in significant numbers for minority candidates in several cases.rr Tr. 1?56. This evidence of voting across racial lines directly contradicts the definition of polarized voting generally accepted by political scientists. In sum, there is evidence of racially polarized voting in Abilene's past, but the plaintiffs have failed to demonstrate that there was racially polarized voting in any election in the last fifteen years. The plaintiffsf statistical studies of Ms. Lujan's 1979 council race and 1981 referendum election suffer from the flaws Dr. Taebel noted, and the court must conelude that those studies are not reliable. Further, the defendants, through the testimony of Dr. Taebel, have proven a pattern of voting in Abilene revealing that whites voted in significant numbers for minority candidates on numerous -11- oecasions. Far from showing a pattern of polarized voting as needed to support the plaintiffsr claim, the evidence demonstrates m polarized voting in recent times. Contrary to the conclusion urged by the plaintiFfs, and based on consideration of a1l the substantial evidence, the court coneludes that there is no credible evidence of a pattern of racially polarized voting in Abilene. Discriminatory voting practices and procedures As stated in its previous Memorandum at 27-?8, the court recognizes the potentially discriminatory efFects on minority voting power of the size of Abilene, the majority vote requirement, numbered place system, and geographical residercy requirernent. Clearly, the existence of these procedures in Abilene's voting system makes this factor weigh in favor of the plaintiffs, although the court also recognizes that there is easy access to the campaign since there is no requirement for a petition in order for a eandidate to be placed on the ballot. Stipulation No. ]0. Slating and the Citizens for Better Government The court agrees with the plaintiffs that a slating process for city ofFicials can be used and manipulated in such a way that it would dilute the votes of minorities. PlaintifFs, through Dr. Davidson, and other witnesses, have presented evidence that the Citizens for Better Government (CBG) in Abilene has dominated city politics and elections of city councilmen and mayors for many years. The structure of the CBG is, as shown by the evidence, as FoIIows: A meeting, in which all interested citizens of Abilene were invited to attend, would be held on a weekday, usual.l.y at noon. The citizens of each election precinct would eLect a chairman, who in turn would automatically serve on the board of directors of the CBG. The board oF directors would designate a nominating cornmittee to solicit and select candidates, who rtould -12- be supported by the CBG at the next city electlon. The nominating committee would report its recormendations to the executive board of the CBG. This executive board could reject and change these nominations, and in fact did reject some of the norninations during the period of its dorninarne. It is this structure and method of endorsement t,hat plaintiffs assert to support their theory of dilution. The evidence is uncontradicted that 9?.5 percent or 17 of 40 council seats up for election between 1966 and 1982 were won by CBG-endorsed candidates. Tr. 5r9 Undoubtedly this process of CBG endorsement could be used to deny minorities or others a meanirgful participation in city government, but the question presented to this court is rrf,rether or not the CBG, through its structural processes, did in fact diseriminate against minorities, or by its acts, whether intentional or not, did dilute the votes of minorities. It must be adnitted that the CBG, and its officials and executive committee, used the structural processes to eliminate any candidates wtro did not agree with the CBGrs political beliefs and philosophies. However, the evidence refutes the theory that the CBG used these political structures as a barrier to the election of minorities to the city council or as a means to dilute the votes of minorities. Neither did the CBG operate in such a way as to have those effects on minority votirq. The evidence is unmistakable that during the 1970s, three members of minority races, two Mexican-Americans and one black, were elected and served on the Abilene City Couneil with the endorsement and support of the CBG. The court further finds that these three would not have been elected in any of these elections if the CBG had not endorsed and supported them. It appears to the court, therefore, that the CBG's actions have supported and increased the chances of blacks and Mexican-Americans to be elected in the City of Abilene rather than to thwart the efforts of minorities to be elected. -1t- If CBG had used its power over city elections in the past to deny its endorsement to a member of a minority race, srd had instead supported a non-minority candidate, a minority would not have been elected. It was because oF such CBG support that any minority has been elected to the city council in Abilene. The plaintiffs complain that the minorities selected were not to their Iiking, yet the plaintiff English adniLted that on several occasions he voted for the CBG-backed minority candidate. If these minority members of the city council, elected with the support of the CBG, did not vote or act, after their election, in accordance with the wishes of the plaintifFs or other minorities, this cannot be blamed on the slating process of the CBG. Plaintiffs' complaint in this case is not that minorities were discriminated against by the CBG or that it was the intent of the CBG to discriminate because of race or color. When examined closely, their complaint is that the CBG refused to endorse somebody of a minority race who had a political philosophy opposite to that of the CBG. In other words, it was discrimination against persons because oF their politieal beliefs rather than because of race. The Fourteenth and Fifteenth Amendments to the United States Constitution and the Voting Rights Act of 1965 as amended in 1982 prohibit discrimination because of race or color and do not in any way attempt to tell any group of citizens or individuals whom they must support, nor do they prohibit a group of citizens from endorsing someone of their own political belieF, rrfrether that person be Anglo, blak, or Mexican-American. -14- Minorities, as shown in the court's original Memorandun, were encouraged to attend the meetirgs of the CBG, and in fact did so, even servirg on the nominating committee. The fact that the CBG, through a majority of its executive board at times, did not do the bidding of the minorities is not proof of racial discrimination. The courtrs discussion of slating thus far has dealt with the CBG during its period oF dqninance over Abilene local elections. Although the CBG was extraordinarily successFul in slating candidates and electing them to ofFice between 1956 and 198?, CBG hegemony in Abilene ended abruptly in 1982. Since that time, the mood among the electorate in Abilene has been decidedly anti-CBG. Transcript of February 2111995 hearirg at 85 [hereinafter cited as Tr. Part II]. In 1981 and 1984, the CBG-endorsed candidate was the winner in only one of the five races conducted during that period. Tr. Part II 54. In 1984, the CBG did not slate candidates prior to their announcing for office, but endorsed several candidates afLer they anrnunced. Tr. Part II 58. In 1985 , the CBG did not hold an annual meeting, did not field a slate of carrdidates, and made no endorsements For city council. Stipulation No.93. Several witnesses testified that the CBG is dead in Abilene, and a strong mood toward electing independent candidates has replaced a tendercy built up over sixteen years to support the CBG candidate. After considering all of the evidence of slating in Abilene, the court concludes that the efflect of slating was not to discriminate against minorities or dilute their voting strength. During the period of CBG dominance, minorities had fair access to the slating process and could influence the selection of persons to be slated. Since the FaIl of the CBG, minorities are able to support independent candidates wlro are responsive to their needs. This too is an open process that does not offend either the Constitution or the Voting Rights Act. -15- EfFects of past discrimination As indicated previously in this opinion, official discrimination has existed in Abilene in the past. Also, as discussed in the court's previous Memorandum at 19, there is a disparity in Abilene in minority voting registration and turrput as cqnpared to whites. This condition exists even though there has been no statutory or constitutional impediments to minority participation in voting since 1968. Stipulation No. 9. The court further finds that the socio-eeonomic status of minorities in Abilene is lower than that of whites, with minorities having lower median number of years of schooling, lower percentage of high school and eollege graduates, and lower median income. In eddition, more minority families live below the poverty line,live with more persons per room, and inhabit less valuable houses than do their white counterparts. Finally, the unemployment rate for minorities is higher than that for whites. Admittedly, there is a disparity between the relative socio-economic statuses of whites and minorities in Abilene. However, there was no evidence presented to the court of lingering discrimination beyond the mere statistics concernirg Abilene's minorities or any facts presented linking this disparity to the eleetion system used in Abilene. The court finds that there is no persistent diserimination in Abilene concerning education, employment, and health wtrich prevents minority citizens from Full access to the political procegs. Racial appeals in political campaigns There was no evidence presented in the trial of this ease of any overt racial appeal in any election since the 1960s. The plaintiffs did present evidence of frustration of their involvement in the political process. One plaintiff filed for county office and was treated rudely by the clerk. Tr. 177. Another plaintiff testified that she was harassed rrfren she ran for -16- office , It. )25, and her husband stated that his property u,as repeatedly damaged when she campaigned for office. Tr. t61. Finally, there was evidence that several minority candidates received threatening telephone caIls. The court does not doubt that each ol these instances occurred, but there is evidence that other minorities may in part have been responsible for the threatening calls, Tr. Part lI 7r-74, and certainly it is possible that they took part in damaging property as well. There was no evidence in the record of actual instances oF prejudicial action other than these instances. There was no direct evidence thet this conduct was raeially motivated, and the court holds that these isolated events do not demonstrate a pattern of overt or subtle racial appeals in Abilene politics. Election oF minorities to office Between 1885 and 1971, no minorities were elected to the city council. From 1950 to 1970, no blrck or Mexican-American ran for the council. Stipulation No . 4r. Since 197r, two Mexican-Amerieans and one black have been elected. Lack of responsiveness In its previous Memorandtrm at 9-18, the court made detailed Findings that elected city officials in Abilene were responsive to the needs of the minority community. There is no need to elaborate further on the provision of governmental services to the minority community or the distribution of municipal jobs and appointments to various city boards. There is ample evidence in the record to show that the city government in Abilene is responsive to the concerns of minority citizens despite the subjective testimony of several plaintiffs and their witnesses that city services are unsatisfactory. In fact, in a survey conducted by the defendantsr expert, Dr. Taebel, minorities rated city servicestrmore than satisFactory" more so than did Anglos in all but two survey categories. It. 1242. -17 - One issue worthy of separate consideration concef,ns the responsiveness of CBG-endorsed cournil members to the minority conmunity. The plaintiffs argued that those members, Leo Scott, Joe Alcorta, and Carlos Rodriguez were mere token candidates and could not truly represent minority interests. They criticized Mr. Scott because he signed a letter in favor of limiting funding to West Texas Legal Services. They also suggested that Mr. Alcorta ard Mr. Rodriguez were not familiar with the problems of the Mexican-American cornmunity and were not sensitive to the needs of minorities. The court recognizes that the plaintiffs did not support the three CBG-endorsed minority candidates and that they would have endorsed other persons if they had possessed the CBG's slating power. However, the Voting Rights Act does not guarantee the election of the candidate of onets choice. Instead, it ensures that the election process does not discriminate against Persons because of their race and deprive them of the right to vote for the candidate of their choice. The court finds that the three minority candidates who were endorsed by the CBG and served on the city council were responsive to minority concerns and were eFfective council members. Each eandidate stated that he tmk his oath of office very seriously ard conscientiously attempted to represent all of the citizens of Abilene to the best of his ability. Tr. 1112, 11t+4-46, 1161. Mr. Rodriguez was particularly active in minority affairs, having served as chairman of the Abilene Chapter of the League of United Latin American Citizens (LULAC) Tr. 1?r4. While head of Abilene's LULAC chapter, Rodriguez eriticized the school district's attitude toward Mexican-Americans. Tr. '1165. The plaintiffs presented no evidence to prove that these men were mere tokens and failed to represent their constituencies. In fact the credible evidence is to the contrary. -1 8- fenuousness Despite the courtrs dicta in Jones v. City of Lubboekr T?7 F.2d tG4, ,8t (5th Cir.1984), that it "doubt[s] that the tenousness factor has any probative value for evaluating the rFairness' of the electoral systernts impact r'r the court is obliged to consider the motivations underlying Abilene's eldctoral system in an efFort to comply with the guidelines suggested in the Voting Rights Actrs legislative history. The plaintiffs' main attack under this topic concerns the 1962 revision of the city charter and its acccrnpanying modifications of the election system. The court finds that Abilene's election system is not based on a tenuous public policy. The plaintiffs concede that Texas law in Article 11, section 5 of the Constitution and Article 1175 of the Revised Statutes empowers a home rule city such as Abilene to select whichever form of government it wishes. Although the reasons underlying the 1962 revision are uncl.ear, it appears from the testimony of Judge Bryan Bra6ury, the revision cormission chairman, that the purpose was a sincere desire to make Abilene's city government more democratic. Discriminatory intent behind 1952 revision The parties to this suit strongly disagree as to the possibility of discriminatory intent in the adoption of the 1962 revision despite their stipulation thatrfnone of the approved amendments to the 1952 charter are germane to any issue in this case and no challenges are raised by any party to them." Stipulation No. ?6. But notwithstanding this stipulation, the United States Court of Appeals for the Fifth Circuit in its opinion very clearly directed this court to study this matter further. The plaintiffs argue that the 1962 revision was enacted based on a racially discriminatory intent. They note that 1962 was a year oF high racial tension and that it was well known at that time that the voting mechanisms enacted served to dilute minority voting -1 9- strength. The plaintiffs also note that all of the members of the revision corrmissionwerewhiteardarguethatthisinsomewaydemonstratesa discriminatoryintent.Theplaintiffsplaeespecialemphasisontwo statements made by members of the conmission to show discriminatory intent' First,theypointtoastatementmadebyMr.HudsonSmart,vieeehairmanof the conmission, who stated that the runoff provision was desirable since all elective county, state, and national officer elections provide for runoffs' Tr. 600. secord, they note a statement made by Judge Bryan Bradbury, chairman ofthecommission,thatthepurposeoftherunofFprovisionwastokeepa minority from gaininq control of city government' Tr' 605' Dr.Davidson,plaintiffs,expertwitness,citesheadlinesintheAbilene newspaper in 196O-1962 and the votes on referendum issues in 1960 as evidence that there was racial motivation behind these charter amendments and for preservirrgEheat-largesystemofelectingcitycouncilmembers.Defendants correcllypointoutthatthesenewsPaperarticleswerenotfrontpagebanner nheadlines'r, but were stories appearing in the first section of the papero Most of these headlines merely recount events during the civit Rights movement intheearlylg60s,aditdoesnotappearthattheyindieateracia}biasof any widesPread extent in Abilene' The testimony ofl Dr. Taebel directly refutes the plaintiffs' contention that reforms such as those enacted by the revision cormission in 1962 were widelyknowntobediscriminatoryatthattime.Hestatedthatthiseffect was not even krpwn to political scientists and goverrment scholars until after a 1965 study of the impact of place-voting requirements by Professor Roy Young. Tr.1226. He alsO stated that most revision cormission members he had workedwithwerefairlynaiveintheirselectionofelectionsystemssothata discriminatory PurPose was unlikely' Tr' 123'' -?o- Thereisabso}utelynoevidencelinkingthefactthatalloftherevision cormission members were white to any discriminatory PUrPose behind the revision.Thecourt,therefore,dismissesthiscontention. The court finds that Mr. smert's statement concerning local, state' and national election runoff provisions does not show discriminatory intent' It is true that runoffs are not required in general elections' However, they are generally required in primary elections in Texas, and it is possible that i'lr' smart was reFerring to these when he made the statement' Regardless of this fact, the plaintiffs made no showing that his statement was a deliberate falsehood designed to hide a discriminatory intent behind the proposed charter rev ision . while it is true that Judge Bryan Bradbury, the chairman of the charter revision conmission, made the statement that the revision would ensure that a minority would not be elected, the court finds that this statement did not : refer to racial minorities but rather to political minorities' T'here was a desire, as shown by Judge Bradbury's testimonyt that any Person elected to the : Abilene City Courcil would have received a majority of the votesrat some city election, either in the primary or in the runoff, and would ensure that a city council member would not take his seat until ard unless such a majority was received. Two other important pieces of evidence sullgest that racial discrimination was not a factor behind the revision. First, the proposed revised charter included Section 1}6, a provision that prohibited discrimination in city employment because of race. Accordirq to Dr. Taebel, the Abilene charter is the only one out of over one hundred charters that he had studied that contained such an equal employment provision. Tr ' 1221 ' The adoption of Section 1f5 as part of eleet,ion system revisions strongly suggests t'he lack oF a discriminatory motivation for the revision. secord, the revision also -21- increased the number of council seats from four to six' making the election ot aminoritymore}ikelythanwhenthecouncilwasgnaller.Tr.lL?a.This supports the conclusion that the revisions were not improperly motivated' The testimony tendered by the deFendants in this case concernirg Lhe 1962 charteramendmentelectionismorereasonableandbelievablethanthe testimony of plaintiffs in this respect. For that reason, the court finds that the charter commission and the voters of Abilene in 196? ' in voting 0n thecitycharteramendnents,werenotmotivatedbyanydiscriminatoryintent against blacks or Mexican-Americans, and that the effect of the enendments are not discriminatorY at this time' Conclusion The court has carefully considered all of the evidence presented in this ease as weII as the briefs and arguments subrnitted by the parties' Based on carefu}studyofthismaterialinlightoFal}ofthecircumstances surroundirg the system of city elections in Abilene' the court determines that there has been no violation of the Fourteenth and Fifteenth Amendments or the Voting Rights Act of 1965 ' ThereisnoeasychecklistofFactorsorothercalculusthatatrial court ctrl use in determinirg whether a challenged voting system discriminates against persons because of their race' The legislative history of the voting Rights Act suggests certain factors which the court has here employed, but in theendrthecourtmustconcluder'rlrethervotedilutionhasoccurredbasedon an extensive examination of the social, historical' and political forces surrounding the challenged electoral system' The court has made such an exhaustive study in the case of city elections in Abilene, Texas and concrudes that the at-large system does not discriminate against minority voters in Abilene because of their race' As discussed in the previous Memorandum and in the section dealing with the 1962 charter revision -22- in the present Memorandum, the court concludes that there was no discri- minatory intent behind the adoption or continuation of Abilene's system of electing city council members and the mayor. Further, Abilene's eleetion system does not have the effect of discriminating against minorities. The plaintifFs in this case and the cl.ass they represent had and continue to have an equal opportunity to elect persons whon they believe will best represent their interests. The plaintiffs conplain that past members of the Abilene City Council, both Anglo and minority, were not to their liking. However, neither the Constitution of the United States nor the Voting Rights Act guarantees any voter that the candidate of his choice will be elected. The law requires that all persons have an equal opportunity to vote for the candidate of their choice and to not have their vote illegally diluted. Abilenets system of erections provides this opportunity to arl of its citizens, minority and norpminority alike, and is therefore constitutionally and statutorily permissible. A judgment will be entered in accordance with the above. The clerk wirl furni,sh a copy hereof to each attorney. ENTERED Lhi, AbY^y of April , 1e85. i:.';l=I:::.f 0 . li30}l?Ats.i Chief Judge Northern District of Texas -2t-