League of United Latin American Citizens (LULAC), Council No 4434 v. Mattox Opinion

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT U. S. COURT OF APPEALS

FILED
JAN 2 7 1953No. 90-8014

--------------------------------------------------  RICHARD E. WINDHORST, JR.
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, CLERK
COUNCIL NO. 4434,

Plaintiffs-Appellees,
and

JESSIE OLIVER, ET AL.,
Intervening Plaintiffs-Appellees,

v.
WILLIAM P. CLEMENTS, ETC., ET AL.,

Defendants,
JIM MATTOX, ET AL.,

Defendants-Appellees, Appellants,
v.
JUDGE F. HAROLD ENTZ, ETC.,
JUDGE SHAROLYN WOOD, ETC.,
and GEORGE S. BAYOUD, JR., ETC.,

Defendants-Appellants,
and

TOM RICKHOFF, SUSAN D. REED, JOHN 
J. SPECIA, JR., SID L. HARLE, SHARON 
MACRAE and MICHAEL P. PEDAN, Bexar County, 
Texas State District Judges,

Appellants.

On Remand from the United States Supreme Court 
Appeals from the United States District Court for the Western District of Texas

(January 27, 1993)



I. BACKGROUND............................................ 14
A. Texas' Method of Electing District Court Judges . . 14
B. Procedural History ..............................  16

II. THE ACCEPTED FRAMEWORK FOR ANALYZING SECTION 2
VOTE DILUTION CLAIMS............... 20

A. The Threshold Inquiry: The Gingles Factors . . . .  22
1. Size and Geographical Compactness of the

Minority Group ..............................  23
2. Political Cohesiveness of the Minority Group . 24
3. Legally Significant White Bloc Voting . . . .  27B. The Broader Inquiry: The Totality of the
Circumstances ....................................  32
1. The Senate Report Factors ..................... 33

a. History of discrimination touching the
rights of minorities to participate in
the political process................. 33

b. Extent of racially polarized voting . . .  34
c. Use of voting practices that enhance the

opportunity for discrimination........ 3 8
d. Minority access to the slating process . . 40
e. Lingering socioeconomic effects of

discrimination ........................  41
f. Use of racial appeals in campaigns . . . .  41
g. Extent to which minority candidates have

been elected to public office.......... 42
h. Responsiveness of elected officials to

particular needs of the minority group . 4 6
i. Tenuousness of the policy underlying the

challenged practice.................... 4 7
2. Other Relevant Factors, Including Racial

Animus in the Electorate.................... 48
C. The Ultimate Inquiry: Unequal Opportunity to

Participate on Account of Race or Color.......... 51
III. THE PROPOSED BALANCING FRAMEWORK FOR ANALYZING

SECTION 2 VOTE DILUTION CLAIMS ..........  55
A. The Accepted Role of State Interests in Section 2Analysis........................................ 55
B. The Proposed Role for State Interests in Section 2Analysis........................................ 56
C. Problems with the Proposed Balancing Framework . . 59

1. The Legal P r o b l e m .............................59
a. Congressional intent ....................  59
b. Federalism principles.....................61
c. The Supreme Court's decision in Houston

Lawyers' Association ..................  67
2. The Practical P r o b l e m ......................... 73
3 . Summation..................................... 76

D. Applying the Proposed Balancing Framework in this
Case: Evaluating Texas' Asserted Interests . . . .  76

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1. Identifying the Threatened State Interests . . 77
2. Scrutinizing the Threatened State Interests . 80

a. Texas' interest in preserving the
administrative advantages of the current
at-large system...........................81

b. Texas' interest in allowing judges to
specialize...............................82

c. Texas' linkage interest ................  83
d. Texas' interest in preserving the 

function of district court judges as
sole decision-makers.................. 9 0

3. Assigning a Weight to the Threatened StateInterests..................................... 96
IV. REVIEW OF THE DISTRICT COURT'S SECTION 2 LIABILITY

FINDINGS........................ ......................98
A. Standard of Appellate Review ....................  99
B. Review of the District Court's Vote Dilution

Findings Under the Accepted Section 2 Framework . . 101
1- Statistical Methodology ....................  101
2. Review of District Court's Vote Dilution

Findings......................................108
a. Bexar County........................... 109

(i) Gingles f a c t o r s .....................110
(ii) Totality of circumstances factors . 112
(iii) Ultimate vote dilution finding . . 117b. Dallas C o u n t y ......................... 118
(i) Gingles f a c t o r s .....................118
(ii) Totality of circumstances factors . 120
(iii) Ultimate vote dilution finding . .13 0

c. Ector County........................... 131
(i) Gingles f a c t o r s .....................132
(ii) Totality of circumstances factors . 134
(iii) Ultimate vote dilution finding . . 137d. Harris C o u n t y ......................... 13 8
(i) Gingles f a c t o r s .....................138
(ii) Totality of circumstances factors . 142
(iii) Ultimate vote dilution finding . . 147e. Jefferson County....................... 148
(i) Gingles f a c t o r s .....................148
(ii) Totality of circumstances factors . 151
(iii) Ultimate vote dilution finding . . 154

f. Lubbock County......................... 155
(i) Gingles f a c t o r s .....................155
(ii) Totality of circumstances factors . 158
(iii) Ultimate vote dilution inquiry . . 161g. Midland County......................... 162
(i) Gingles f a c t o r s .....................162
(ii) Totality of circumstances factors . 165
(iii) Ultimate vote dilution finding . . 167h. Taurrant County......................... 168
(i) Gingles f a c t o r s .....................168

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(ii) Totality of circumstances factors . 170
(iii) Ultimate vote dilution finding . . 173

i. Travis C o u n t y .............. 174
3. Effect of District Court's Refusal to

Consider Partisan Voting Evidence ..........  177
a. The Partisanship Evidence............. 178

(i) History of partisan politics in
T e x a s ........................... 179

(ii) How partisan politics operate in
Texas district court elections . . . 180

(iii) The limitations of the
partisanship evidence........... 184

(iv) Summation of partisanship
evidence......................... 185b. The District Court's Treatment of the

Evidence............................. 186
c. The District Court's Error............. 188
d. The Effect of the Error; Whitcomb

Considered........................... 1904. Summation................................. 204
C. Review of the District Court's Vote Dilution

Findings Under the Proposed Balancing Framework . .205
V. R E M E D Y ............................................... 207
VI. CONCLUSION........................................... 210

DISSENT OF PATRICK E. HIGGINBOTHAM, Circuit Judge ............ 1
APPENDIX A TO JUDGE HIGGINBOTHAM'S DISSENT ................  57

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Before KING, JOHNSON and HIGGINBOTHAM, Circuit Judges.
KING, Circuit Judge:

This case is before us on remand from the Supreme Court's 
decision in Houston Lawyers' Association v. Attorney General of 
Texas. Ill S. Ct. 2376 (1991), in which the Court held that 
Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, applies to 
all Texas judicial elections. We must now address a question 
that is undoubtedly easier to frame than to answer. In 
particular, we must decide whether the district court erred in 
concluding that the method by which Texas elects district court 
judges--as that method operates in nine counties--violates 
Section 2 of the Voting Rights Act. After a careful review of 
the record, we hold (1) that the district court correctly 
concluded, in eight of the counties at issue, that Texas' method 
of electing district court judges violates Section 2, but (2) 
that the district court erred in finding a Section 2 violation in 
Travis County. We therefore affirm the district court's decision 
in part, reverse the decision in part, and remand the case to the 
district court for consideration and imposition of an appropriate 
remedy.

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In view of the length of this opinion,1 a summary of the 
pertinent facts and major legal conclusions may be helpful to the 
reader:

As with all cases under the Voting Rights Act, this one is 
driven by the facts. In this case, certain key facts are best 
summarized by the following table which sets forth, with respect 
to each of the nine Texas counties at issue, the population of 
the relevant minority group, the total number of district court 
judges elected in the county, the number of judges who are 
members of the relevant minority group and the percentage of the 
total number of district judges who are members of the relevant 
minority group.

' An explanation for the length of this opinion is in order. This case was tried and decided in 1989. Since then, it has 
taken an unexpected detour to the Supreme Court and back. We 
recognize that this panel may well not have the last appellate 
word. The parties and amici have filed briefs totalling nearly 
1200 pages and have raised an extraordinarily large number of 
issues in what is, in reality, nine separate Voting Rights Act 
cases. This opinion attempts to address all the issues raised, 
with the hope of facilitating the ultimate resolution of the case 
and minimizing the need for further consideration at our level of issues already briefed.

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Number of Percentage of
judges who judges who are
are members members of

Relevant Total of the relevant
minority no. of relevant minority

County population* district judgesb minority group' group

Bexar 46.6% Hispanic 19 5 26.3%
Dallas 18.5% Black ~ 36 2d 5.5%

^Pctor 26.0% Black & 
Hispanic

4 0 0.0%

Harris 19.7% Black 59 3 5.1%
Jefferson 28.2% Black 8 0 0.0%
Lubbock 27.0% Black & 

Hispanic 5 0 0.0%

Midland 23.5% Black & 
Hispanic

3 0 0.0%

Tarrant 11.8% Black 23 2e 8.7%

Travis 17.2% Hispanic 13 0 0.0%

* This data was taken from the 1980 Census
b These numbers reflect the total number of district judges elected in 

the county as of 1989.
c These figures represent the number of judges who were on the bench 

in 1989.
d These two Black judges were elected with virtually no support from 

Dallas County's Black community.
c One of these Black judges was elected with very little support from 

the Black community in Tarrant County, and the other judge obtained her 
seat through appointment.

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The table portrays graphically what is inescapable from the 
record in this case--that in Texas district court elections, 
minority voters have less opportunity than white voters to 
participate in the political process and to elect representatives 
of their choice. The powerlessness of Texas minority voters in 
state district court elections stands in marked contrast to the 
increasing ability of those voters to participate in the 
political process and to elect representatives of their choice in 
the context of federal and state legislative elections and in 
local city council and school board elections. The strides that 
minority voters have made in the latter elections are due in no 
small part to the Voting Rights Act. In the years following the 
passage of the Act, minority plaintiffs throughout the state 
mounted successful challenges under Section 2 to at-large 
election schemes for the federal and state legislative branches 
and for local city councils and school boards. Thus, the face of 
this state's legislative branch and of local government more and 
more reflects the face of this state's people. By contrast, the 
face of the judicial branch in Texas continues to be--as it has 
always been-- overwhelmingly white.

The state of Texas and the other defendants argue that the 
Voting Rights Act, so helpful to minorities in these other 
contexts, affords minorities no relief in the context of the 
election of state district judges. This is so, we are told, 
because the state has a compelling interest in the maintenance of 
the present electoral system--an interest which outweighs the

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interest of minorities in having an opportunity equal to that of 
the state's white citizens to elect district judges of their 
choice. Specifically, we are told by the state that electing 
district judges from an area no smaller than a county is 
necessary to ensure that district judges are independent or 
accountable to all litigants equally and that no particular group 
will have undue influence over the decisions that must be made 
alone by the district judge. We are told further that the 
mechanism by which that interest is implemented is the state's 
venue rules which operate to ensure the accountability of a state 
district judge to all the citizens of the county in which he is 
elected. Upon close inspection, we find, not surprisingly, that 
the venue rules in Texas, like the venue rules in the federal 
courts and in the courts of other states, are predicated on 
considerations of convenience for the litigants and the 
witnesses; in general, they afford a defendant some protection 
from being forced to defend an action in a district court remote 
from his residence in this vast state, or remote from the place 
where the events underlying the controversy occurred and the 
place where evidence is mos't likely available. In short, here as 
elsewhere, the venue rules were not designed to ensure judicial 
accountability.

What does ensure that state district judges are independent 
and accountable to all litigants equally and that no particular 
group will have undue influence over the decisions that must be 
made are--first, the Texas Code of Judicial Conduct and second,

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the integrity of the individual judges. The Texas Code of 
Judicial Conduct charges judges with applying the law and states 
that an honorable judiciary separated from the influence of 
others is "indispensable to justice in our society." The Code 
also stresses that "[a] judge should be unswayed by partisan 
interest, public clamor, or fear of criticism." There is no 
evidence in this record that judges elected with the support of 
minorities will be any less obedient to the commands of the Texas 
Code of Judicial Conduct than are state district judges who are 
currently elected with the support of many other interest groups, 
such as the personal injury bar and the defense bar. Nor is 
there any support in this record for the proposition that persons 
elected with the support of minorities would somehow be lacking 
in the same high level of integrity that has in the past 
characterized the Texas bench.

In summary, the compelling interest proffered by the state 
and the other defendants for the maintenance of the current 
system is, at best, little more than tenuous. Arrayed against it 
is the Texas Constitution, which was amended by the Texas 
legislature and by the voters of this state in 1985 to permit the 
election of state district judges from areas smaller than a 
county. The voters of this state have made provision for one of 
the remedies available to the district court in this case-- 
namely, the remedy of subdistricting. Surely, the legitimate 
state interests in this case can permissibly be defined, in part, 
by this provision of its Constitution.

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We turn finally to a brief summary of certain other 
important legal issues involved in the decision of this case. In 
particular, we have been asked by the state of Texas and several 
state district judges to decide what Congress meant in the Voting 
Rights Act when it prohibited voting practices that result in a 
denial or abridgement of the right to vote "on account of race or 
color."

With respect to the significance of Congress' use of the 
phrase "on account of race" in Section 2, our holdings may be 
summarized as follows: First, we hold that, under the plain
language of Section 2, minority plaintiffs must demonstrate that 
the challenged election practice, under the totality of the 
circumstances, results in the denial or abridgement of the right 
to vote "on account of," or based on, race or color. See Chisom 
v. Roemer. Ill S. Ct. 2345, 2363 (1991). The phrase "on account 
of race or color" has been broadly defined by the Supreme Court 
and by Congress. Specifically, the totality of circumstances 
factors listed by Congress as relevant to a determination of 
Section 2 liability, as well as the threshold factors for proving 
vote dilution set forth in Thornburg v. Gingles. 478 U.S. 30 
(1986), point to minority voters' unequal opportunity to 
participate in the political process on the basis of race or 
color. Thus, minority plaintiffs seeking to satisfy the "on 
account of race or color" requirement --which is indisputably 
their burden--may present evidence of the existence of racially 
polarized voting, racial campaign appeals, a history of official

11



discrimination, the lingering socioeconomic effects of 
discrimination, and other features of the current or past racial 
climate of the community in question. Proof of some or all of 
these factors raises an inference that racial discrimination is 
responsible for minority plaintiffs' unequal opportunity to 
participate in the political process.

Therefore, we reject the argument that "on account of race 
or color" is a narrowly-defined phrase. In particular, we reject 
the contention that Congress has defined the phrase "on account 
of race or color" to require minority plaintiffs to present proof 
that their unequal opportunity to participate in the electoral 
process and elect representatives of their choice is "caused by 
racial animus in the electorate." We also reject the related 
argument that, to prove legally significant white bloc voting in 
the context of partisan elections, as well as racially polarized 
voting in such elections, minority plaintiffs must prove that 
such voting patterns are caused by racial animus in the 
electorate. While proof of the presence of racial animus in the 
electorate would be a significant factor indicating that race or 
color is in some way responsible for minority plaintiffs' unequal 
opportunity to participate in the electoral process, the absence 
of proof of racial animus in the electorate simply will not, by 
itself, preclude a finding that minority plaintiffs have an 
unequal opportunity to participate in the electoral process on 
account of race or color.

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We have also been asked to decide whether evidence of a 
strong statistical correlation between the electoral success and 
the party affiliation of a candidate can override or negate other 
factors which Congress has indicated point towards vote dilution. 
With respect to the evidence in several of the counties at issue 
showing a strong statistical correlation between a candidate's 
electoral success and his or her party affiliation, we hold that 
the district court erred in refusing to consider the evidence.
The evidence is unquestionably relevant as an important feature 
of the political landscape. And, to the extent the evidence 
purported to demonstrate the absence of current racial animus in 
the electorate, it was also relevant to the question of whether 
race or color is responsible for the minority plaintiffs' unequal 
opportunity to participate in the political process.

We further hold, however, that the district court's failure 
to consider the particular evidence adduced in this case amounts 
to harmless error. The so-called "partisanship evidence" in this 
case was offered to demonstrate only that voters in elections in 
large Texas counties, not knowing the race or names of district 
court candidates, vote without specific racial animus toward 
those candidates. The evidence did not purport to explain why 
voters voted the way they did, but simply purported to rule out 
specific racial animus towards candidates. Moreover, to the 
extent that minority candidates find it harder, because of their 
lack of financial resources, to mount a county-wide campaign on a 
scale necessary to gain name recognition, the partisanship

13



evidence of straight-ticket voting reinforces rather than negates 
minorities' unequal opportunity to participate in the political 
process. Accordingly, we hold that, although it should not have 
been excluded from consideration as legally irrelevant, the 
partisanship evidence adduced here does not undercut the district 
court's ultimate conclusion that minorities have an unequal 
opportunity to participate in the political process, an unequal 
opportunity that is tied to race or color.

I. BACKGROUND
This lawsuit, which is before this panel for a second time, 

encompasses nine different voting rights cases. It concerns the 
method by which Texas elects its district court judges in Bexar, 
Dallas, Ector, Harris, Jefferson, Lubbock, Midland, Tarrant, and 
Travis counties ("target counties"). Before we recount the 
procedural history of this lawsuit, it will be helpful to outline 
Texas' method of electing district court judges and to describe 
how this method operates in the larger counties of the state.

A. Texas' Method of Electing District Court Judges
Texas elects its 386 state district judges in partisan 

elections, which are conducted at the same time and in a 
substantially similar fashion as other state partisan races. 
Political parties nominate judicial candidates in general 
primaries and runoffs, and a candidate must receive a majority of 
the vote to qualify as the party's nominee. See Tex. Elec. Code

14



Ann § 172.003 (Vernon 1986). At the general election, judicial 
candidates must run for a specifically numbered district court, 
and their party affiliation is indicated on the ballot. To win 
the general election, a judicial candidate needs only a plurality 
of votes. Id. § 2.001.

One feature of Texas' method of electing state district 
judges is unique--the size of the various judicial districts from 
which such judges are elected. Since 1985, the Texas 
Constitution has provided that judicial districts may not be 
smaller than a county unless a majority of the voters of the 
county authorizes smaller districts, see Tex. Const, art. V, §
7a(i), and to date, no district smaller than one county has been 
authorized by voters from any Texas county.2 In addition, 
although the Texas Constitution permits the creation of more than 
one judgeship per judicial district, see Tex. Const, art V, § 7, 
the legislature has seldom invoked this provision. Consequently, 
as a general rule only one district judge is elected per judicial 
district, and the judicial districts, although no smaller than a 
county, vary in size from one county to six counties and in 
population from approximately 1 3 , 0 0 0  to 2 . 5  million. See 
generally The American Bench 2 1 3 8 - 5 4  (6th ed. 199 1)  (breaking down 
judicial districts in Texas according to the counties they 
cover).

2 Stated another way, the Texas Constitution was amended in 
1985 to provide for the first time that a county may subdivide 
itself into smaller judicial districts than the full extent of 
the county; such action requires a majority vote of the county.

15



Thus, Texas' method of electing district court judges 
operates as an at-large system in the larger counties--including 
the nine target counties--but not in the smaller counties- For 
example, in Harris County, which according to the 1980 Census has 
a population of some 2,409,544, there are fifty-nine (59) 
overlapping, single-judge, county-wide judicial districts. The 
persons running for those 59 positions may be voted on by all 
1,685,024 registered voters in Harris County. By contrast, in 
Milam County, which according to the 1980 Census has a population 
of 22,732, there is only one judicial district. The registered 
voters in that county cast their ballots for only one district 
judge. See id.

B. Procedural History
On July 11, 1988, ten individuals, along with local and 

state chapters of the League of United Latin American Citizens 
(collectively, "Plaintiffs"), filed suit in federal district 
court, seeking declaratory and injunctive relief. Plaintiffs 
asserted that Texas' method of electing district court judges, as 
that method operates in larger counties, (1) dilutes minority 
voting strength in violation of Section 2 of the Voting Rights 
Act, and (2) violates the Fourteenth and Fifteenth Amendments of 
the United States Constitution. The named defendants in the 
original lawsuit were: William P. Clements, the Governor of
Texas; Jim Mattox, the Attorney General of Texas, who is charged 
with enforcing the laws of the state; George Bayoud, the

16



Secretary of State of Texas, who is charged with administering 
the elections laws of the state; and members of the Judicial 
Districts Board of Texas, which is charged with reapportioning 
the districts from which Texas district court judges are elected 
(collectively, "State Defendants").

Several months later, in March 1989, the district court 
permitted several parties to intervene in the lawsuit. The 
Houston Lawyers Association and the Texas Black Legislative 
Caucus intervened on behalf of Plaintiffs, as did certain 
individuals residing in Dallas County. Two Texas district court 
judges--Sharolyn Wood, 127th District Court in Harris County, and 
Harold Entz, 194 th District Court in Dallas County-- intervened in 
their personal capacities on behalf of the State Defendants.

Plaintiffs originally challenged Texas' election method in 
forty-four counties. By the time of trial, however, they had 
narrowed their challenged to the nine target counties.
Plaintiffs proceeded on behalf of Black voters in Harris, Dallas, 
Tarrant, and Jefferson counties, on behalf of Hispanic voters in 
Bexar and Travis counties, and on behalf of Black and Hispanic 
voters combined in Lubbock, Ector, and Midland counties.

The lawsuit was tried to the district court the week of 
September 18, 1989. After considering all the evidence, 
including much expert testimony, the district court rendered its 
liability decision and made findings of fact and conclusions of 
law. In its 94-page memorandum opinion of November 8, 1989, the 
district court rejected the Plaintiffs' constitutional claims but

17



found their statutory claim meritorious. The district court 
concluded that the Plaintiffs, on behalf of specified minority 
voters in each of the nine target counties, demonstrated a 
violation of Section 2 of the Voting Rights Act. The district 
court based its conclusion on its finding that Texas' current 
method of electing district court judges in the nine target 
counties "interacts with social and historical conditions" to 
cause the minority voters in each of the nine counties to have 
less opportunity than white voters "to elect their preferred 
candidates."

On appeal, a divided panel of this court held that the 
district court erred in concluding that Texas' method of electing 
district court judges violates Section 2 of the Voting Rights Act 
in the nine target counties. See League of United Latin American 
Citizens v. Clements. 902 F.2d 293 (5th Cir.), opinion on 
rehearing en banc. 914 F.2d 620 (1990), rev'd and remanded. Ill 
S. Ct. 2367 (1991). We reasoned that, although Section 2 applies 
to some state judicial elections, it does not apply to elections 
of state district judges. Id. at 308. In reaching this 
decision, we focused specifically on the legislative history of 
the Voting Rights Act, as amended in 1982, and the nature of 
Texas district court judgeships. We noted that, unlike a judge 
of a multi-member body, "the district judge in Texas does his 
judging alone." Id. Because we concluded that "there can be no 
share of such a single member office," we held that county-wide 
elections of district judges "[do] not violate the Voting Rights

18



Act." Id. Accordingly, we reversed the judgment of the district 
court.

On its own initiative, the members of this court decided to 
rehear the case en banc. Over Judge Johnson's dissent, a 
majority of this court concluded that Section 2 of the Voting 
Rights Act does not apply to any judicial elections. See League 
of United Latin American Citizens. 914 F.2d 620, 631 (5th Cir. 
1990) (en banc), rev'd and remanded. Ill S. Ct. 2367 (1991). In 
reaching this conclusion, the majority relied primarily on 
Congress' use of the word "representative" in Section 2. It 
reasoned that Congress did not intend the term "representative" 
to include state judges. The majority stated: "Should Congress
seek to install [the results] test for judicial elections, it 
must say so plainly. Instead, it has thus far plainly said the 
contrary." Id.

The Supreme Court granted certiorari for the limited purpose 
of considering the scope of Section 2's coverage. See Houston 
Lawyers' Ass'n v. Attorney General of Texas. Ill S. Ct. 2376,
2380 (1991). Relying on its decision in Chisom v, Roemer. Ill S. 
Ct. 2354 (1991), which was issued the same day, the Court 
concluded that Section 2 of the Voting Rights Act applies to 
Texas' method of electing district court judges. Id. at 2381.
The Court specifically held that " [i]f a State decides to elect 
its trial judges, as Texas did in 1861, those elections must be 
conducted in compliance with the Voting Rights Act." Id. at

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2380. Accordingly, the Court reversed this circuit's en banc 
decision and remanded the case for further proceedings.

II. THE ACCEPTED FRAMEWORK FOR ANALYZING SECTION 2
VOTE DILUTION CLAIMS

When Congress amended Section 2 of the Voting Rights Act in
1982, it sought "to clearly establish the standards . . . for
proving a violation of that section." S. Rep. No . 417, 97th
Cong., 2d Sess. 6, at 2 (1982), reprinted in 1982 U.S.C.C.A.N.
177, 178 [hereinafter S. Rep.].3 Congress specifically intended
to "make clear that proof of discriminatory intent is not
required to establish a violation of Section 2." S. Rep. at 2.
Congress also intended to restore "the legal standards under the
results test by codifying" the vote dilution framework embraced
in White v. Regester. 412 U.S. 755 (1973). Id. at 2.

As amended, Section 2 establishes the basic framework for
analyzing vote dilution claims. It provides:

(a) No voting qualification or prerequisite to voting 
or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a 
manner which results in a denial or abridgement of the 
right of any citizen of the United States to vote on 
account of race or color, or in contravention of the

3 The Senate Report is the authoritative expression of 
Congress' intent in amending Section 2 of the Voting Rights Act. 
The House of Representatives did not draft its own report, nor 
did it negotiate a conference committee report. The House 
instead adopted the language of the Senate Report. Therefore, 
the Senate Report serves in place of a conference committee 
report and should be considered, next to the statute itself, the 
most persuasive evidence of congressional intent. See generally Thornburg v. Gingles. 478 U.S. 30, 43-46 (1986).

20



guarantees set forth in section 1973b(f)(2) of this title, 
as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is 
established if, based on the totality of the 
circumstances, it is shown that the political processes 
leading to nomination or election in the State or 
political subdivision are not equally open to 
participation by members of a class of citizens protected by subsection (a) of this section in that its 
members have less opportunity than other members of the 
electorate to participate in the political process and 
to elect representatives of their choice. The extent 
to which members of a protected class have been elected 
to office in the State or political subdivision is one 
circumstance which may be considered: Provided. That
nothing in this section establishes a right to have 
members of a protected class elected in numbers equal 
to their proportion in the population.

42 U.S.C. § 1973. Subsection (a) makes clear that Congress
intended to codify a results test, and subsection (b) provides
guidance about how the results test is to be applied. See
Chisom. Ill S. Ct. at 2364. Under this framework, then, a
plaintiff can prevail "by showing that a challenged election law
or procedure, in the context of the total circumstances of the
local electoral process, ha[s] the result of denying a racial or
language minority an equal chance to participate in the electoral
process." S. Rep. at 16.

The basic framework set forth in the language of Section 2, 
although it appears straightforward, has become increasingly 
complex. Both the Supreme Court and Congress have elaborated on 
this basic structure, and the product of their elaborations is a 
two-part framework for analyzing vote dilution claims brought by 
minority voters. Under the first part of this accepted Section 2 
framework, a court must determine whether the minority voters

21



have satisfied a threshold test enunciated by the Supreme Court. 
If minority voters satisfy the threshold test and demonstrate 
that their ability to elect representatives of their choice is 
being hindered by the challenged practice, a court must then ask 
whether the minority voters have demonstrated certain factors 
that Congress deemed relevant to the Section 2 inquiry--factors 
that raise an inference of vote dilution. Ultimately, a court 
must inquire whether minority voters have demonstrated an unequal 
opportunity to participate in the political process on account of 
race or color.

A. The Threshold Inquiry: The Gingles Factors
The Supreme Court first elaborated on the basic analytical 

framework established by Section 2 in Thornburg v. Ginales. 478 
U.S. 30 (1986), a case in which Black voters successfully 
challenged North Carolina's multimember legislative redistricting 
plan. Although the case produced a "complicated web of dissents, 
concurrences, and plurality opinions,"4 a majority of the Court 
agreed that at-large election procedures do not automatically 
violate Section 2. Id. at 46. A majority of the Court also 
agreed with the formulation of a three-part, threshold test for 
analyzing claims that an at-large election scheme dilutes 
minority voting strength. Under this threshold test, the 
minority group challenging an at-large election scheme must

4 Sushma Soni, Note, Defining the Minority-Preferred 
Candidate Under Section 2. 99 Yale L.J. 1651, 1653 (1990) .

22



demonstrate that (1) it is sufficiently large and geographically 
compact to constitute a majority in a single member district, (2) 
it is politically cohesive, and (3) the white majority votes 
sufficiently as a bloc to enable it--in the absence of special 
circumstances--usually to defeat the minority's preferred 
candidate. Id. at 48-51. Failure to establish any one of the 
Ginales factors precludes a finding of vote dilution, because 
"[t]hese circumstances are necessary preconditions for 
multimember districts to operate to impair minority voters' 
ability to elect representatives of their choice. . . . "  Id. at 
50; see also Overton v. City of Austin. 871 F.2d 529, 538 (5th 
Cir. 1989) (failure to establish any one of the Ginales factors 
is fatal to plaintiffs' vote dilution claim).

1. Size and Geographical Compactness of the Minority Group
As stated above, to pass the Ginales threshold inquiry, the 

minority group challenging an at-large election scheme must first 
demonstrate that it is sufficiently large and geographically 
compact to constitute a majority in a single-member district. To 
satisfy this first Ginales factor, the minority group must 
ordinarily be able to draw a single member district in which a 
majority of the voting age population is minority. See Westweao 
Citizens for Better Government v. City of Westweao. 946 F.2d 
1109, 1117 n.7 (5th Cir. 1991) (Westweao III): Overton. 871 F.2d 
at 536; see also Westweao Citizens for Better Gov't v. Westweao. 
872 F.2d 1201, 1205 n.4 (5th Cir. 1989) (Westweao I) (noting that 
evidence of size of "voting age" population is critical to a vote

23



dilution claim); Romero v. City of Pomona. 883 F.2d 1418, 1426
(9th Cir. 1989) ("eligible minority voter population, rather than 
total minority population, is the appropriate measure of 
geographical compactness"). This requirement, according to the 
majority in Gingles, ensures that, in the absence of the 
multimember district and at-large voting scheme, "minority voters 
possess the potential to elect representatives. . . . "  Gingles. 
478 U.S. at 50 n.17 (emphasis in original). In other words, if 
the minority group is not sufficiently large and geographically 
compact, "the multimember form of the district cannot be 
responsible for [minority] voters' inability to elect [their] 
candidates." Id. at 50 (emphasis in original) (footnote 
omitted).

2. Political Cohesiveness of the Minority Group
The minority group must also demonstrate that it is 

"politically cohesive" to pass the Gingles threshold inquiry.
Id. at 51. One way of proving political cohesiveness, according 
to the Gingles majority, is to show "that a significant number of 
minority group members usually vote for the same candidates. . .
." Id. at 56; see also Citizens for a Better Gretna v. City of 
Gretna. 834 F.2d 496, 501-02 (5th Cir. 1987), cert, denied. 492 
U.S. 905 (1989). If the minority group is not politically 
cohesive, or does not engage in significant bloc voting, "it 
cannot be said that the selection of a multimember structure 
thwarts distinctive minority group interests." Gingles. 478 U.S. 
at 51 (citation omitted).

24



Although statistical evidence of racially polarized voting, 
see infra Part II.B.l.b., is frequently employed to demonstrate a 
minority group's political cohesiveness, other evidence may also 
establish this second Ginales factor. We have on several 
occasions indicated that Ginales allows minority voters to prove 
their political cohesiveness even in the absence of statistical 
evidence of racial polarization. See Westweao III. 946 F.2d at 
1118 n .12; Brewer v. Ham. 876 F.2d 448, 453 (5th Cir. 1989). In 
particular, political cohesiveness also may be demonstrated by 
testimony from persons familiar with the community in question, 
provided that such testimony is reinforced with other evidence or 
is not otherwise rebutted. See Brewer. 876 F.2d at 453-54; see 
also Overton. 871 F.2d at 536.

Political cohesiveness is related to, but distinct from, the 
concept of racially polarized voting. The notion of political 
cohesiveness contemplates that a specified group of voters shares 
common beliefs, ideals, principles, agendas, concerns, and the 
like such that they generally unite behind or coalesce around 
particular candidates and issues. See Monroe v. City of 
Woodville. 881 F.2d 1327, 1331 (5th Cir. 1989), modified. 897 
F.2d 763, cert, denied. Ill S. Ct. 71 (1990). The term racially 
polarized voting, on the other hand, describes an electorate in 
which white voters favor and vote for certain candidates or 
propositions, and minority voters vote for other candidates or 
propositions. See Ginales. 478 U.S. at 53 n.21. (racial 
polarization exists where there is a consistent relationship

25



between the race of the voter and the way in which the voter 
votes or where minority voters and white voters vote 
differently). Thus, while a showing of racially polarized voting 
will frequently demonstrate that minority voters are politically 
cohesive,5 a showing that minority voters are politically 
cohesive will not, by itself, establish racially polarized 
voting.

Finally, according to a majority of the Justices in Gingles. 
to satisfy the second threshold factor minority voters need not 
prove that the reason they vote for the same candidates is linked 
to race or color. Justice Brennan, writing for three other 
Justices, would have held that "the reasons [minority] and white 
voters vote differently have no relevance to the central inquiry 
of § 2." Gingles. 478 U.S. at 63 (Brennan, J., joined by 
Marshall, Blackmun, and Stevens, JJ.). Although not entirely 
agreeing with Justice Brennan, Justice O'Connor, writing on 
behalf of three other Justices, agreed that defendants cannot 
rebut statistical evidence of a minority group's political 
cohesiveness by "offering evidence that the divergent racial 
voting patterns may be explained in part by causes other than 
race." Gingles, 478 U.S. at 100 (O'Connor, J., joined by 
Burger, C.J., Powell and Rehnquist, JJ., concurring in the

5 Evidence of racially polarized voting does not, however, 
automatically establish minority political cohesiveness. If, in 
a certain community, white citizens vote only for candidates of 
type A, while minority citizens are split in voting for 
candidates of types X, Y, and Z, then there would be evidence of 
racially polarized voting--minority and white voters voting 
differently--but no evidence of minority political cohesiveness.

26



judgment). Justice O'Connor specifically stated that statistical 
evidence of divergent racial voting offered solely to establish 
the minority group's political cohesiveness may not be rebutted 
by evidence indicating that there is "an underlying divergence in 
the interests of minority and white voters." Id.

3. Legally Significant White Bloc Voting
Under the third Gingles factor, the minority group "must be 

able to demonstrate that the white majority votes sufficiently as 
a bloc to enable it--in the absence of special circumstances, 
such as the minority candidate running unopposed--usually to 
defeat the minority's preferred candidate." Gingles. 478 U.S. at 
51 (internal references omitted). "In establishing this last 
circumstance, the minority group demonstrates that submergence in 
a white multimember district impedes its ability to elect its 
chosen representatives." Id. As with demonstrating political 
cohesiveness, a minority group can demonstrate white bloc voting 
by introducing statistical evidence of racially polarized voting. 
See Westwego III. 946 F.2d at 1118. Moreover, where statistical 
evidence of racially polarized voting is used to establish white 
bloc voting, the elections that will usually be most probative 
are those in which the minority-preferred candidate is a member 
of the minority group. See Westwego I. 872 F.2d at 1208 n.7.

The determinative question for this third Gingles factor "is 
not whether whites generally vote as a bloc, but rather, whether 
such bloc voting is legally significant." Monroe. 881 F.2d at 
1332. Legally significant white bloc voting means white bloc

27



voting that usually defeats the minority group's preferred
candidate. Id. at 1333. As the Court recognized in Ginqles. "a 
white bloc vote that normally will defeat the combined strength 
of minority support plus white 'crossover' votes rises to the 
level of legally significant white bloc voting." Ginqles. 478 
U.S. at 56. It is "the usual predictability of the majority's 
success," the Court continued, that "distinguishes structural 
dilution from the mere loss of an occasional election." Id. at 
51.

The amount of white bloc voting that rises to the level of 
legal significance will vary from location to location. That is, 
in determining whether white voting strength can generally 
"minimize or cancel" minority voters' ability to elect 
representatives of their choice, courts must look at a number of 
factors. Id. at 56 (quoting S. Rep. at 28) . Among the factors 
affecting the level of legally significant white bloc voting are: 
(1) the nature of the allegedly dilutive electoral mechanism; (2) 
the presence or absence of other potentially dilutive electoral 
devices, such as majority vote requirements, designated posts, 
and prohibitions against bullet voting; (3) the percentage of 
registered voters in the district who are members of the minority 
group; (4) the size of the district; and (5) in multimember 
districts, the number of seats open and the number of candidates 
in the field. Ginqles. 478 U.S. at 56.

Contrary to the arguments advanced by the State Defendants, 
Judge Wood, and Judge Entz, a minority group is not required to

28



demonstrate that racial animus is responsible for a white bloc 
voting pattern. A requirement of demonstrating racial animus 
would, in the words of the Senate Report, be "unnecessarily 
divisive because it [would] involve charges of racism on the part 
of . . . entire communities." S. Rep. at 36. And, one of the 
reasons Congress decided to amend Section 2 was to obviate the 
need for such charges of racism. Id.* 6

6 Judge Higginbotham contends that five Justices in Gingles expressly held that the extent to which voting patterns are 
attributable to causes other than racial political considerations 
is an integral part of the racial bloc voting inquiry.
Dissenting Op. at 30-31. Indeed, in Judge Higginbotham's view, 
the failure to demonstrate racial political considerations, or racial animus, in the electorate automatically defeats a vote 
dilution claim, because the minority group will not be able to 
demonstrate either legally significant white bloc voting or 
racially polarized voting. After a careful reading of Gingles, we respectfully disagree.

We recognize that Justice O'Connor, in her Gingles 
concurrence, disagreed with Justice Brennan's position that 
explanations of divergent racial voting patterns are "irrelevant" 
to the Section 2 inquiry. Gingles, 478 U.S. at 100 (O'Connor,
J-, joined by three Justices, concurring in the judgment). In 
expressing her views on the use of statistical evidence to demonstrate racially polarized voting, however, she never 
"expressly held" that racial political considerations are an 
"integral part," much less a prerequisite, to a finding of racial bloc voting. Rather, she stated:

Insofar as statistical evidence of divergent racial 
patterns is admitted solely to establish that the 
minority group is politically cohesive and to assess 
its prospects for electoral success. I agree that 
defendants cannot rebut this showing by offering 
evidence that the divergent racial voting patterns may 
be explained in part by causes other than race, such as 
an underlying divergence in the interests of minority 
and white voters. I do not agree, however, that such 
evidence can never affect the overall vote dilution 
inquiry. Evidence that a candidate preferred by the 
minority group in a particular election was rejected by 
white voters for reasons other than those which made 
that candidate the preferred choice of the minority 
group would seem clearly relevant in answering the

29



question whether bloc voting by white voters will 
consistently defeat minority candidates. Such evidence 
would suggest that another candidate, equally preferred 
by the minority group, might be able to attract greater 
white support in future elections.

I believe Congress also intended that explanations 
of the reasons why voters rejected minority candidates 
would be probative of the likelihood that candidates 
elected without decisive minority support would be 
willing to take the minority's interests into account.
In a community that is polarized along racial lines, 
racial hostility may bar these and other indirect 
avenues of political influence to a much greater extent 
than in a community where racial animosity is absent 
although the interests of the racial groups diverge.
Indeed, the Senate Report clearly stated that one 
factor that could have probative value in § 2 cases was 
"whether there is a significant lack of responsiveness 
on the part of elected officials to the particularized 
needs of the members of the minority group. S. Rep., 
at 29. The overall vote dilution inquiry neither 
requires nor permits an arbitrary rule against 
consideration of all evidence concerning voting 
preferences other than statistical evidence of racial 
voting patterns. Such a rule would give no effect 
whatever to the Senate Report's repeated emphasis on "intensive racial politics," on "racial political 
considerations," and on whether "racial politics . . . 
dominate the electoral process" as one aspect of "the 
racial bloc voting" that Congress deemed relevant to 
showing a § 2 violation. Id. at 33-34. Similarly, I 
agree with Justice White that Justice Brennan's 
conclusion that the race of the candidate is always 
irrelevant in identifying racially polarized voting 
conflicts with Whitcomb and is not necessary to the disposition of this case.

478 U.S. at 100-01 (emphasis added).
How this passage amounts to, as Judge Higginbotham states, 

an "express holding" that racial political considerations are an 
integral part of, or a prerequisite to, a finding of racially 
polarized voting is not clear. A straightforward reading of this 
passage, in our view, suggests that Justice O'Connor would 
consider relevant anecdotal testimony indicating that, "in a 
particular election," white voters rejected a minority-preferred 
candidate for "reasons other than those which made that candidate 
the preferred choice of the minority group." Such anecdotal 
testimony would be relevant, in Justice O'Connor's words, to 
"suggest that another candidate, equally preferred by the 
minority group," might be able to attract greater white support

30



in the future. By making this statement, Justice O'Connor 
recognized that the phenomenon of white bloc voting, as well as 
racially polarized voting, is only significant if it persists 
over time. Moreover, she also indicated that "explanations of 
the reasons why voters rejected minority candidates" would be 
probative of the totality of circumstances factor relating to the 
"responsiveness of elected officials." See infra Part II.B.l.h. 
Finally, Justice O'Connor recognizes that in a community 
"polarized along racial lines," the added circumstance of "racial 
hostility" may bar even "indirect avenues of political influence 
to a much greater extentf than in a community where racial 
animosity is absent although the interests of racial groups 
diverge." Thus, when read in context, Justice O'Connor's Ginales 
opinion is much more consistent with our treatment of racial 
political considerations, or racial animus in the electorate, as 
an "other factor" that is relevant to the "overall vote dilution 
inquiry." rather than as a prerequisite to a finding of legally 
significant white bloc voting. 478 U.S. at 101-02 (emphasis 
added).

Finally, we note that Judge Higginbotham in another portion 
of his dissent appears to reject the idea that a minority group 
must demonstrate that racial animus is responsible for a white 
bloc voting pattern. Judge Higginbotham concedes that it would 
be unworkable to require plaintiffs to prove the absence of all 
non-racial causes of voting behavior in order to demonstrate 
legally significant white bloc voting. However, he clings to the 
idea that evidence of partisan voting is somehow different from 
other evidence suggesting the presence or absence of racial 
political considerations or of racial animus in the electorate. 
This differentiation between partisanship evidence and other 
evidence is patently illogical. First, this approach would 
appear to prevent an inquiry into the many reasons why people 
vote for the candidates of one party or another. Second, if 
evidence of partisan voting is sufficient to defeat a finding of 
white block voting, why not other evidence suggesting the absence 
of racial political considerations? If, as Justice O'Connor 
suggests, the reasons why people vote the way they do are 
relevant to the overall vote dilution inquiry, how can one stop 
that inquiry at statistical correlations between the party 
affiliations of the candidates and electoral success? Indeed, 
why would such a rule not amount to an "arbitrary rule" against 
consideration of all evidence concerning voting preferences 
similar to the rule condemned by Justice O'Connor? Ultimately, 
Judge Higginbotham's approach would needlessly confuse the narrow 
Gingles factors with the broader inquiry into the totality of the 
circumstances. The logical solution is to follow the approach 
mandated by Congress and adopted by Justice O'Connor, i.e., to 
consider evidence suggesting that divergent voting patterns are 
not the result of racial political considerations in the totality of circumstances inquiry.

31



In sum, a minority group can satisfy the third Gingles 
factor by showing that a substantial majority of white voters 
consistently vote against the candidates preferred by minority 
voters, such that the candidates preferred by the minority group 
usually lose. It has never been the case, however, that for 
white bloc voting to be legally significant, it must be shown to 
be motivated by racial animus. See e.g.. Westwego III. 946 F.2d 
at 1118-20 (concluding, without inquiring as to the cause of 
voting patterns, that the record "unmistakably" demonstrated 
legally significant white bloc voting). We decline to hold so 
now.

B. The Broader Inquiry: The Totality of the Circumstances
Satisfaction of the Gingles factors, at least in this 

circuit, does not by itself establish a violation of Section 2. 
See Westwego III, 946 F.2d at 1116. The minority group must 
further demonstrate that, under the totality of the 
circumstances, "its members have less opportunity than other 
members of the electorate to participate in the political process 
and to elect representatives of their choice." 42 U.S.C. §
1973(b). Unlike the Gingles threshold inquiry, the totality of 
circumstances inquiry is broad. It requires courts to make a 
"searching practical evaluation of the 'past and present 
reality'" of the community and to take a "'functional' view of 
the political process." Gingles. 478 U.S. at 45. Although 
courts typically should be guided by the factors mentioned in the

32



Senate Report accompanying the 1982 amendments to Section 2, 
other factors may also be relevant. See Westwego III. 946 F.2d 
at 1120.

1. The Senate Report Factors
The Senate Report accompanying the 1982 amendments to 

Section 2 identifies seven "typical" factors and two "additional" 
factors that may be relevant to an analysis of the totality of 
the circumstances. These factors, which were derived from the 
analytical framework used by the Supreme Court in White v. 
Regester. 412 U.S. 755 (1973), as articulated by this court in 
Zimmer v. McKeithen. 485 F.2d 1297, 1305 (5th Cir. 1973), af f * d 
sub nom. East Carroll Parish School Bd. v. Marshall. 424 U.S. 636 
(1976), are meant to aid a court in assessing whether "the 
challenged system or practice, in the context of all the 
circumstances in the jurisdiction in question, results in 
minorities being denied equal access to the political process."
S. Rep. at 27. According to the Senate Report, a court must 
"assess the impact of the challenged structure or practice on the 
basis of objective factors, rather than making a determination 
about the motivations which lay behind its adoption or 
maintenance." Id. at 27 (emphasis added).

a. History of discrimination touching the rights of 
minorities to participate in the political process. The first 
factor mentioned in the Senate Report is "the extent of any 
history of official discrimination in the state or political 
subdivision that touched the right of the members of the minority

33



group to register, to vote, or otherwise to participate in the
democratic process." S. Rep. at 28. In listing this factor, 
Congress made clear that it "was concerned not only with present 
discrimination, but with the vestiges of discrimination which may 
interact with present political structures to perpetuate a 
historical lack of access to the political system." Westwego I. 
872 F.2d at 1211-12. Evidence that is relevant under this factor 
includes the use of poll taxes and literacy tests, as well as the 
existence of racially segregated schools and public facilities. 
See White. 412 U.S. at 768; Zimmer. 485 F.2d at 1306; see also 
Andrew P. Miller and Mark A. Packman, Amended Section 2 of the 
Voting Rights Act: What is the Intent of the Results Test?. 36
Emory L.J. 1, 28 (19 87) .

b. Extent of racially polarized voting. The second factor 
that Congress deemed relevant to an analysis of the totality of 
the circumstances is "the extent to which voting in the elections 
of the state or political subdivision is racially polarized." S. 
Rep. at 29. This factor is one of the two most important in the 
inquiry into the past and present reality of the challenged 
electoral structure. Westwego III. 946 F.2d at 1120. It is, we 
have stated, "the linchpin of a § 2 vote dilution claim. . . . "  
Gretna. 834 F.2d at 499; see also Samuel Issacharoff, Polarized 
Voting and the Political Process: The Transformation of Voting
Rights Jurisprudence. 90 Mich. L. Re v. 1833, 1848-49 (1990) 
(opining that the inclusion of the racially polarized voting 
inquiry in the Senate Report marked "a major shift in voting

34



rights law" and pointed to an "emerging doctrinal coherence for 
claims of minority vote dilution").

As previously discussed, see supra Part II.A.2, racially 
polarized voting "exists where there is a 'consistent 
relationship between [the] race of the voter and the way in which 
the voter votes,' . . . or to put it differently, where 
'[minority] voters and white voters vote differently.'" Gingles, 
478 U.S. at 53 n.21. Racially polarized voting is not, as Judge 
Wood, Judge Entz, and the State Defendants suggest, racially 
motivated voting, or voting caused by racial animus.7 See

7 Although the ultimate inquiry in a Section 2 case is 
whether minority voters have an unequal opportunity to 
participate in the political process on account of race or color. 
see infra Part II.C., we decline to redefine the concept of 
racially polarized voting to include a causation element. To 
establish racially polarized voting, a minority group need not 
prove that divergent racial voting patterns are motivated or 
caused by racial animus in the electorate. Moreover, we decline 
to hold that a multivariate analysis--i.e., an analysis that 
investigates more variables than the race of the voters--is necessary to show racially polarized voting. In our view, such a 
definition would be inconsistent with Congress' intent in 
amending Section 2 and directing courts to "assess the impact of 
the challenged structure or practice on the basis of objective 
factors. rather than making a determination about the motivations 
which lay behind its adoption or maintenance." S. Rep. at 27 
(emphasis added). See generally. Richard L. Engstrom, The 
Reincarnation of the Intent Standard: Federal Judges and At-
Large Election Cases. 28 How. L.J. 495, 498 (1985) (disapproving 
the recent trend in federal courts to give a "second life" to the 
intent requirement); cf. Kirksev v. City of Jackson. 663 F.2d 
659, 662 (5th Cir. Unit A Dec. 1981) (holding that, because of 
First Amendment concerns, the motivations of voters are not 
subject to searching scrutiny by plaintiffs in a voting rights 
case), clarified. 669 F.2d 316 (1982).

In refusing to redefine the concept of racially polarized 
voting, however, we do not mean to say that evidence of the 
presence or absence of racial animus in the electorate is 
irrelevant to the totality of circumstances inquiry. See infra Part II.B.2.

35



Collins v. City of Norfolk. 816 F.2d 932, 935 (4th Cir. 1987)
("The legal standard for the existence of racially polarized 
voting looks only to the difference between how majority votes 
and minority votes were cast; it does not ask why those votes 
were cast the way they were. . . Nor is racially polarized
voting simply "the tendency of citizens to vote for candidates of 
their own race." Miller & Packman, supra. at 16. Rather, 
racially polarized voting is an objective factor, which is 
established by evidence demonstrating that "voters vote along 
racial lines." Westwego III. 946 F.2d at 1122.

To say that racial polarization does not simply measure the 
tendency of citizens to vote for candidates of their own race, 
however, does not mean that evidence of such tendencies are 
unimportant to the racial polarization inquiry. We recognized in- 
Gretna that, in determining the existence of racial bloc voting, 
"the race of the candidate is in general of less significance 
than the race of the voter--but only within the context of an 
election that offers voters the choice of supporting a viable 
minority candidate." 834 F.2d at 503. Furthermore, we have 
noted that "the evidence most probative of racially polarized 
voting must be drawn from elections including both [minority] and 
white candidates." Westwego I. 872 F.2d at 1208 n.7.*

* In his dissent, Judge Higginbotham, citing our opinion in 
Gretna. suggests that the reason elections with a minority 
candidate are most probative of racially polarized voting is 
because we are trying to determine whether such voting is caused 
by racial animus in the electorate. See Dissenting Op. at 33.
We disagree. Our decision in Gretna indicates that the reason 
for focusing on these elections is --generally-- to ensure that we

36



Accordingly, in ascertaining whether a community's elections are 
characterized by racially polarized voting, a court may properly 
give more weight to elections in which the minority-preferred 
candidate is a member of the minority group.

The Senate Report recognizes that racially polarized voting 
is a relative concept by instructing courts to assess not only 
the existence of racially polarized voting, but the extent of 
such voting. Indeed, the existence of racially polarized voting 
will frequently, if not always, be established by satisfying of 
the second and third Gingles factors. See supra Parts II.A.2.,
II.A.3; see also Romero v. City of Pomona. 883 F.2d 1418, 1423 
(9th Cir. 1989) (suggesting that the second and third Gingles 
factors, political cohesiveness and white bloc voting, are the 
"component parts" of racially polarized voting). Under the 
totality of circumstances inquiry, the focus is on the degree of 
racially polarized voting. When the pattern of racially 
polarized voting is severe--that is, when minority and white 
voters rarely engage in cross-over voting--an at-large election 
scheme is more likely to dilute minority voting strength in 
violation of Section 2. Conversely, when the pattern of racially 
polarized voting is slight, and there is substantial cross-over 
voting between minority and with voters, an at-large election

are considering elections "that offer[] voters the choice of 
supporting a viable minority candidate," 834 F.2d at 503, or more 
specifically, a minority candidate that is preferred by the minority group.

37



scheme is less likely to dilute minority voting strength in 
violation of Section 2.

c. Use of voting practices that enhance the opportunity for 
discrimination. The Senate Report also directs courts to 
consider other voting practices that may interact with the 
challenged election scheme to dilute minority voting strength.
In particular, courts are to consider "the extent to which the 
state or political subdivision has used unusually large election 
districts, majority vote requirements, anti-single shot 
provisions, or other voting practices or procedures that may 
enhance the opportunity for discrimination against the minority 
group." S. Rep. at 29. Courts may also consider, at least in 
the context of at-large elections, whether the state or political 
subdivision employs what amounts to a numbered-post system and 
whether the system lacks a district residency requirement. See 
White v. Regester. 412 U.S. 755, 766 (1973) (discussing Texas' 
"place" rule). The potential of such features to dilute minority 
voting strength is well-documented. See generally Chandler 
Davidson, Overview, in Minority Vote Dilution 5-8 (Chandler 
Davidson ed. 1984).

Unusually large election districts may enhance vote dilution 
in a least two ways: First, such districts may make it more
difficult for minorities to successfully campaign for office.
See Rogers v. Lodge. 458 U.S. 613, 627 (1982); see also Whitcomb
31=_Chavis. 403 U.S. 124, 143 (1971) (recognizing that, when
large, multimember districts have an enhanced tendency to

38



minimize or cancel out minority voting strength). Such districts 
may also create the problem of overly long ballots, making "an 
intelligent choice among candidates . . . quite difficult."
Lucas v. Colorado Gen. Assembly. 377 U.S. 713, 731 (1964).

The other features discussed above similarly enhance the 
possibility of vote dilution. Majority vote requirements can 
obstruct the election of minority candidates by giving white 
voting majorities a "second shot" at minority candidates who have 
only mustered a plurality of the votes in the first election.
See Hearings Before the Subcomm. on Constitutional Rights of the 
Senate Comm, on the Judiciary. 94th Cong., 1st Sess. 491 (1975) 
(testimony of Dr. Charles Cotrell); see also Jones v. City of 
Lubbock. 727 F.2d 364, 383 (5th Cir. 1984); Manor v. Treen. 574 
F. Supp. 325, 351 n.32 (E.D. La. 1983) (three-judge court).
Anti-single shot provisions prohibit voters from casting fewer 
than all of their votes and effectively force minority voters to 
cast votes for white candidates who may not be favored by 
minority voters. Westwego III. 946 F.2d at 1113 n.3. Under a 
numbered post system, candidates are required to run for a 
designated seat. See White. 412 U.S. at 766. This requirement, 
the Supreme Court has recognized, "enhances [the minority 
group's] lack of access because it prevents a cohesive political 
group from concentrating on a single candidate." Rogers. 458 
U.S. at 627. Finally, where there is no requirement that 
candidates reside in subdistricts of a multimember district, "all

39



candidates may be selected from outside [a minority group's] 
residential area." White, 412 U.S. at 766 n.10.

d. Minority access to the slating process. The fourth 
totality factor listed in the Senate Report is "whether members 
of the minority group have been denied access" to any candidate 
slating process. S. Rep. at 29. Slating has been defined as 
"the creation of a package or slate of candidates, before filing 
for office, by an organization with sufficient strength to make 
the election merely a stamp of approval of the pre-ordained 
candidate group." Overton. 871 F.2d at 534. The core inquiry as 
to slating, we have stated, "is the ability of [minorities] to 
get on the ballot." Hendrix v. Joseph, 559 F.2d 1265, 1268 (5th
Cir. 1977).

Where a slating organization exists, "the ability of 
minorities to participate in that slating organization and to 
receive its endorsement may be of paramount importance." United 
States v. Marenao Countv Comm'n, 731 F.2d 1546, 1569 (11th Cir.)
(Wisdom, J., sitting by designation), cert, denied, 469 U.S. 976 
(1984). We have indicated, however, that a slating 
organization's endorsement of a few minority candidates will not 
preclude a finding that the minority group lacks access to the 
slating process, at least where those candidates are not 
preferred by the minority group. Seg Velasquez v_.— City of 
Abilene. 725 F.2d 1017, 1022 & n.l (5th Cir. 1984) (referring to 
the Senate Report). Moreover, we have recognized that the 
absence of a slating organization will not mitigate evidence of

40



an unequal opportunity to participate in the political process. 
See McMillan v . Escambia Countv. 638 F.2d 1239, 1245 (5th Cir.), 
cert, dismissed. 453 U.S. 946 (1981).

e. Lingering socioeconomic effects of discrimination. 
Congress also has directed courts to consider "the extent to 
which members of the minority group in the state or political 
subdivision bear the effects of discrimination in such areas as 
education, employment and health . . . ." S. Rep. at 29. In 
doing so, Congress recognized that the lingering socioeconomic 
effects of discrimination may hinder a minority group's "ability 
to participate effectively in the political process." Id. Where 
the minority group presents evidence that its members are 
socioeconomically disadvantaged and that their level of 
participation in politics is depressed, the group "need not prove 
any further causal nexus between [its members') disparate 
socioeconomic status and the depressed level of political 
participation." Id. at 29 n.114.

f. Use of racial appeals in campaigns. The Senate Report 
further directs courts, when looking at the present reality of 
the community's political process, to consider "whether political 
campaigns have been characterized by overt or subtle racial 
appeals." S. Rep. at 29. The presence of this factor, Congress 
undoubtedly recognized, could provide evidence that racial 
politics dominate the political process. See id. at 33. The 
absence of racial appeals, however, is not fatal to a minority 
group's vote dilution claim under Section 2. As Judge Wisdom

41



recognized in Marengo Countv. overt political racism has 
decreased over time. 731 F.2d at 1571. Therefore, while 
"[e]vidence of racism can be very significant if it is presentt,]
. . . . its absence should not weigh heavily against a plaintiff 
proceeding under the results test of [S]ection 2." Id.

g. Extent to which minority candidates have been elected to 
public office. The "extent to which members of the minority 
group have been elected to public office in the jurisdiction," S. 
Rep. at 29, along with the extent of racially polarized voting, 
are the two most important factors that the district court must 
consider its analysis of the totality of the circumstances. See 
Gingles. 478 U.S. at 48 n.15; Westwego III. 946 F.2d at 1120. 
Indeed, minority candidate success is the only factor that is 
mentioned in the language of Section 2 itself.9 Subsection (b), 
which sets forth the totality of the circumstances standard,

9 Judge Higginbotham suggests that, because Congress 
explicitly mentioned the extent to which minorities have been 
elected as a totality of circumstances factor in the statute 
itself, it should somehow take precedence over the extent to 
which minorities have been able to elect candidates "of their 
choice." Judge Higginbotham suggests that "it is quite possible" 
that minority plaintiffs will not be able to demonstrate a lack 
of electoral success," an element that is crucial to their claim, 
"where black Republicans win and white Democrats lose."
Dissenting Op. at 20-21. Judge Higginbotham further states that 
the Senate Report precludes courts from considering-- through a 
filter--whether particular minorities who have won elections have 
been the minority-preferred candidate. Dissenting Op. at 23-24. 
We disagree. The Senate Report directs courts to consider the 
"totality of the circumstances," and where a minority candidate 
is elected with virtually no support from the minority community, 
a court may reasonably take that fact into account in resolving 
the ultimate question under Section 2 of whether minorities have 
an equal opportunity to elect "representatives of their choice." 42 U.S.C. § 1973(b).

42



expressly provides: "The extent to which members of a protected
class have been elected to office in the State or political 
subdivision is one circumstance which may be considered:
Provided. That nothing in this section establishes a right to 
have members of a protected class elected in numbers equal to 
their proportion in the population." 42 U.S.C. § 1973(b).

In the Senate Report, Congress indicated that the analysis 
of minority candidate success should be a cautious, relative 
inquiry. On the one hand, Congress recognized that, where "no 
members of a minority group have been elected to office over an 
extended period of time," the lack of success "is probative." S. 
Rep. at 29 n.115. Congress cautioned, however, against giving 
too much weight to the isolated instances of minority candidate 
success. Citing our decision in Zimmer. Congress noted that "the 
election of a few minority candidates does not 'necessarily 
foreclose the possibility of dilution of the [minority] vote' in 
violation of this section." S. Rep. at 29 n.115. If such 
isolated successes were allowed to foreclose a Section 2 claim, 
Congress continued, "the possibility exists that the majority 
citizens might evade the section[, for example,] by manipulating 
the election of a 'safe' minority candidate." Id.10

10 In his dissent, Judge Higginbotham recognizes that 
"[e]vidence of the electoral success of minority candidates 
should not, of course, be accepted uncritically." Dissenting Op. 
at 22. He then asks us, however, to hold that where "several" 
Republican minority candidates have been elected--as opposed to a 
"few"--such successes must be accepted uncritically as evidence 
that white voters are not motivated by racial animus. Dissenting 
Op. at 24. We think such a distinction would be unwise and 
inconsistent with Supreme Court precedent.

43



Congress did not, however, clearly establish a reference 
point for measuring the success of minority candidates. One 
possibility is to measure the success of minority candidates by 
reference to the proportion of minorities in the local 
population. Another way in which to measure the success of 
minority candidates is to focus on their success rate by

First, it is not clear, and Judge Higginbotham does not tell us, what the difference is between a "few" and "several" 
Republican minority candidates. Moreover, he does not even set 
forth the number of minority Republican district court candidates 
that were elected in the eight years studied by the experts in 
this case, and for good reason. Our review of the record leaves 
us uncertain about that number. As best we can tell from the 
record, from 1980 to 1988 it appears that: (1) in Harris County,
one Black Republican district court candidate won a contested 
general election; (2) in Dallas County, two Black Republican 
district court candidates won contested general elections; (3) in 
Bexar County, one Hispanic Republican won a contested general election; and (4) in Tarrant County, one Black Republican won a contested general election.

Based on our review of the record, we can only surmise that 
Judge Higginbotham reaches the conclusion that "several" minority 
Republican candidates have been elected by aggregating elections 
from the various counties. This case should not turn on whether 
the election of five minority Republican district court judges 
Qualifies as "several" or "few." Besides, such aggregation is contrary to Girigles. which in this case requires that vote 
dilution inquiries be county-specific. And, focusing on the 
county-by-county analysis mandated by Gingles. we think it would be splitting hairs to hold that the election of two Black 
Republican district judges in Dallas County precludes a 
successful vote dilution claim--whereas the election of one such judge would not foreclose a claim.

Finally, while all members of the Court in Gingles agreed 
that consistent and virtually proportional minority candidate 
success would foreclose a Section 2 claim, see 478 U.S. at 77, 
104-05, "proportional" success by minority candidates is a far 
cry from the success of "several" minority Republican candidates. At bottom, Judge Higginbotham urges that the election of 
"several" (perhaps five in the nine counties at issue here) 
Republican minority candidates, candidates who were not even 
supported by the minority community, indicates as a matter of law that minorities have an equal opportunity to elect 
representatives of their choice. This result is simply contrary to the plain language of Section 2.

44



comparing the number of minority candidates who have won with the 
number of minority candidates who have lost. And finally, as a 
third way of gauging minority success, a court could compare the 
number of minorities elected with the "qualified applicant pool," 
as is currently done with employment discrimination claims 
brought under Title VII of the Civil Rights Act of 1965.

In our view, both of the first two methods discussed above 
are relevant to the inquiry of minority candidate success. 
Measuring the success of minority candidates by referring to the 
proportion of minorities in the local population is supported by 
the language of Section 2. See 42 U.S.C. § 1973(b). The method 
was also embraced by a majority of the Justices in Gingles. See 
Gingles. 478 U.S. at 77 (Brennan J., joined by White, J.)
(finding that "persistent proportional representation" of 
minority voters in a multimember district precluded their vote 
dilution claim); id. at 104-05 (O'Connor, J., joined by Burger,
C.J., Powell and Rehnquist, JJ., concurring in the judgment) 
(stating that "consistent and virtually proportional minority 
electoral success" is entitled to great weight in totality of 
circumstances analysis). The Senate Report provides support for 
relying on the success rate of minority candidates in determining 
the extent to which minorities have been elected. It 
specifically notes the probative value of "[t]he fact that no 
members of a minority group have been elected to office over an 
extended period of time. . . . "  S. Rep. at 29 n.115 (emphasis 
added).

45



We have serious reservations about the relevance of the
third, "qualified applicant pool" approach. Such an approach 
seems inconsistent with our "refusal to preclude vote dilution 
claims where few or no [minority] candidates have sought offices 
in the challenged electoral system." Westwego I. 872 F.2d at 
1209 n.9. It would, in our view, "allow voting rights cases to 
be defeated at the outset by the very barriers to political 
participation that Congress has sought to remove." Id. Indeed, 
it seems perverse to measure the success of minority candidates 
by referring to the pool of qualified minority candidates, when 
the paucity of qualified minority candidates "is a likely result 
of a racially discriminatory system." McMillan v . Escambia 
County. 748 F.2d 1037, 1045 (11th Cir. 1984). But see Southern
Christian Leadership Conference of Alabama v. Evans. 785 F. Supp. 
1469, 1476-77 (M.D. Ala. 1992) (measuring success of minority 
candidates under "qualified applicant pool" standard).

h. Responsiveness of elected officials to particular needs 
of the minority group. An "additional factor" that in some cases 
has probative value in the totality of circumstances inquiry is 
"whether there is a significant lack of responsiveness on the 
part of elected officials to the particularized needs of the 
members of the minority group." S. Rep. at 29. The Senate 
Report makes clear, however, that "[u]nresponsiveness is not an 
essential part" of a vote dilution claim. Id. at 29 n.116. 
"Therefore, defendants' proof of some responsiveness [does] not 
negate [a minority group's] showing by other, more objective

46



factors . . . that minority voters nevertheless [are] shut out of
equal access to the political process." Id.; see Campos v ._City
of Bavtown. 840 F.2d at 1250.

i. Tenuousness of the policy underlying the challenged 
practice. A second "additional factor" that is sometimes 
relevant to totality of circumstances analysis is "whether the 
policy underlying the state or political subdivision's use of 
[the challenged] voting qualification, prerequisite to voting, or 
standard, practice or procedure is tenuous." S. Rep. at 29. The 
tenuousness of the policy underlying the challenged practice, 
although less important under the "results test" embodied in 
Section 2, is nonetheless relevant. See Marengo County. 731 F.2d 
at 1571. Evidence of a tenuous underlying state policy, which is 
circumstantial evidence that the practice or procedure was 
motivated by an intent to discriminate, may also indicate that 
the practice or procedure produces a discriminatory result. See 
id. Moreover, "the tenuousness of the justification for a state 
policy may indicate that the policy is unfair." Id. (citation 
omitted); see also S. Rep. at 29 n.117 ("If the [challenged] 
procedure markedly departs from past practice or from practice 
elsewhere in the jurisdiction, that bears on the fairness of its 
impact."). The existence of a legitimate state policy underlying 
the challenged practice or procedure does not, however, preclude 
a finding of vote dilution. As noted in the Senate Report:
"[E]ven a consistently applied practice premised on a racially 
neutral policy [does] not negate a plaintiff's showing through

47



other factors that the challenged practice denies minorities fair 
access to the process." S. Rep. at 29 n.117.

2. Other Relevant Factors. Including Racial Animus in the 
Electorate

The list of relevant factors in the Senate Report is not 
exclusive. The Senate Report specifically states that, while the 
nine "enumerated factors will often be the most relevant ones, in 
some cases other factors will be indicative of the alleged 
dilution." S. Rep. at 29. The report also instructs courts to 
consider "the challenged election law or procedure, in the 
context of the total circumstances of the local electoral 
process." See id. at 16 (emphasis added). As we stated in 
Westwego III, "other factors may be relevant" under the totality 
of circumstances inquiry. 946 F.2d at 1120.

In determining whether a factor not expressly mentioned in 
the Senate Report is relevant for purposes of the totality of 
circumstances inquiry, courts should be mindful of Justice 
O'Connor's admonition in Gingles to avoid arbitrary rules that 
prevent "consideration of all evidence concerning voting 
preferences other than statistical evidence of racial voting 
patterns." 478 U.S. at 101 (O'Connor, J., concurring). Courts 
should also remember that the totality of circumstances inquiry 
is expansive and requires a "searching practical evaluation of 
the 'past and present reality.'" S. Rep. at 30 (quoting White v. 
Regester) (emphasis added). Finally, courts should determine 
whether the particular factor being advanced as relevant under

48



the totality of circumstances inquiry is probative of the 
ultimate vote dilution inquiry. See infra Part II.C.

The State Defendants, Judge Wood, and Judge Entz argue that, 
under these principles, the presence or absence of racial animus 
in the electorate must be relevant to the totality of 
circumstances inquiry. We agree and accordingly hold that racial 
animus in the electorate is an "other factor" that is relevant to 
the totality of circumstances inquiry. After all, as Justice 
O'Connor recognized in her Ginales concurrence, the Senate Report 
accompanying the amendment to Section 2 repeatedly emphasizes the 
relevance of "racial politics" and "racial political 
considerations" to the vote dilution inquiry. See Gincrles. 478 
U.S. at 101 (O'Connor, J., concurring) (citing S. Rep. at 33-34). 
Moreover, by listing the presence of racial campaign appeals as a 
relevant factor in the totality of circumstances inquiry,
Congress has already instructed courts to consider, at least in a 
limited fashion, whether racial politics are a part of the local 
political landscape.

The presence of racial animus in the electorate may be a 
signal of vote dilution. Indeed, like the presence of racial 
campaign appeals, racial animus in the electorate "can be very 
significant if it is present." Marengo. 731 F.2d at 1571. Where 
white voters are motivated by racial animus, minority voters are 
not only likely to be prevented from electing representatives of 
their choice, but they are also likely to be unable to influence 
the representatives who are elected. See Gingles. 478 U.S. 100-

49



01 (O'Connor, J., concurring). In addition, the presence of 
racial animus in the electorate makes it substantially more 
likely that an election practice with the potential to dilute 
minority voting strength is in fact operating to dilute minority 
voting strength.

The absence of racial animus in the electorate, however, 
like the absence of racial campaign appeals, "should not weigh 
heavily against a plaintiff proceeding under the results test of 
[Sjection 2." Marengo. 731 F.2d at 1571. The limited relevance 
of the absence of racial animus is mandated by two 
considerations. The first is the nature of racial animus as a 
subjective rather than an objective factor pointing toward vote 
dilution. In the Senate Report accompanying the amended Section 
2, Congress expressed a preference for objective rather than 
subjective indicators of vote dilution. See, e.g.. S. Rep. at 
27. Placing great weight on the absence of racial animus in the 
electorate would, in our view, be contrary to congressional 
intent. The second consideration mandating that little weight be 
accorded to the absence of this factor is the problem of proving 
the existence of racial animus in the electorate. As Judge 
Wisdom has recognized, because overt political racism has 
decreased over time, racial animus in the electorate may be 
difficult, if not impossible, to detect. See Marengo, 731 F.2d 
at 1571. Anecdotal testimony to the effect that voters are pure 
of heart, by its very nature, will not bear much weight.
Moreover, as the experts in this case admitted, see infra Part

50



IV.B.3.a.(iii), there are inordinate difficulties in using 
statistical analyses to explain why voters vote for or against 
certain candidates. One expert, on whom the State Defendants 
placed heavy reliance, testified that it would be impossible to 
use a multivariate analysis to account for the various factors 
that might influence voters' decisions. See id.

Thus, racial animus in the electorate, like other factors in 
the totality of circumstances inquiry, is neither necessary nor 
dispositive. We reiterate that a plaintiff proceeding under 
Section 2 need not establish racial animus in the electorate to 
demonstrate minority political cohesiveness, legally significant 
white bloc voting, or racially polarized voting. Moreover, 
because racial animus in the electorate is not an essential 
element of a vote dilution claim, evidence suggesting the absence 
of racial animus cannot, by itself, defeat a vote dilution 
claim."

C. The Ultimate Inquiry: Unequal Opportunity to Participate on
Account of Race or Color
In the end, the Ginoles threshold inquiry and the expansive, 

totality of circumstances inquiry provide only guidance for 
answering the ultimate Section 2 inquiry: whether it has been 11

11 Judge Higginbotham would hold that evidence merely 
suggesting the absence of specific racial animus in the 
electorate--namely, evidence that "several" minority Republicans 
have won elections--by itself defeats a vote dilution claim.
For the reasons we have already stated, see supra notes 6 and 10, 
we reject this argument as being inconsistent with Gingles and 
congressional intent.

51



shown "that the political processes leading to nomination or 
election in the State or political subdivision are not equally 
open to participation by members of a [racial or language 
minority] in that its members have less opportunity than other 
members of the electorate to participate in the political process 
and to elect representatives of their choice." 42 U.S.C. §
1973(b). As the Senate Report accompanying the amended Section 2 
cautions, courts should not become bogged down in "mechanical 
'point counting.' " S. Rep. at 29 n.118. No one of the factors 
is dispositive, and the minority group need not prove a majority 
of the factors mentioned in the Senate Report. Westwego III. 946 
F.2d at 1120. Rather, based on "the totality of circumstances 
and guided by those relevant factors in the particular case," a 
court is required to make an overall judgment of "whether the 
voting strength of minority voters is . . . 'minimized or 
canceled out.'" S. Rep. at 29 n.118; see also Ginales. 478 U.S. 
at 47 ("The essence of a § 2 claim is that a certain electoral 
law, practice, or structure interacts with social and historical 
conditions to cause an inequality in the opportunities enjoyed by 
[minority] and white voters to elect their preferred 
representatives.").

The focus of the ultimate Section 2 inquiry is on minority 
voters' unequal opportunity to participate in the electoral 
process on account race or color. The factors that must be 
considered in both the Gingles and the totality of circumstances 
inquiries point to minority voters' unequal opportunity to

52



participate in the political process. Those factors also point 
to an unequal opportunity to participate on the basis of race or 
color. That is, to prevail under Section 2, a minority group has 
the burden to demonstrate (1) that, because of the challenged 
scheme or practice, its members are unable to fully participate 
in the political process and (2) that their inability to 
participate is tied to race or color. The framework set forth by 
the Supreme Court in Gingles and by Congress in the Senate Report 
is only the means through which a minority group meets this 
burden.

By framing the ultimate vote dilution inquiry in terms of 
whether the minority group has demonstrated an unequal 
opportunity to participate in the political process that is tied 
to race or color, we give effect to Congress' intent in amending 
Section 2. The language of Section 2, as well as the .Senate 
Report accompanying the amendment of that section, indicate that 
Congress was concerned with minority groups having an unequal 
opportunity to participate in the political process. See 42 
U.S.C. § 1973(b) (violation established if minority group has 
"less opportunity" to participate in the political process under 
the totality of circumstances); S. Rep. at 27 (violation 
established if minority group demonstrates under totality of 
circumstances that, because of the challenged practice, its 
members are being "denied equal access to the political 
process"); S. Rep. at 30 (ultimate question is whether the 
political processes are "equally open" to minority candidates).

53



The language of Section 2 also indicates that Congress was 
concerned with voting practices resulting in an unequal 
opportunity to participate that is linked to race or color. By 
prohibiting only election procedures that result "in a denial or 
abridgment of the right . . .  to vote on account of race or 
color. . . ."42 U.S.C. § 1973(a) (emphasis added), Congress 
expressed its intent that the minority group's unequal 
opportunity be tied to race or color. See also Chisom v. Roemer. 
Ill S. Ct. 2354, 2363 (1991) ("Now plaintiffs can prevail under §
2 by demonstrating that a challenged election practice has 
resulted in the denial or abridgement of the right to vote based 
on color or race.") (emphasis added).

To show that an at-large election scheme results in an 
unequal opportunity to participate in the political process on 
account of race or color, however, a minority group need not 
demonstrate current racial animus in the electorate. See S. Rep. 
at 28 n.109 ("[I]t is patently clear that Congress has used the 
words 'on account of race or color' in the Act to mean 'with 
respect to' race or color, and not to connote any required 
purpose of racial discrimination."). Rather, the minority group 
may, by demonstrating some mix of factors under the totality of 
the circumstances--such as the existence of racially polarized 
voting, racial campaign appeals, a history of official 
discrimination, the lingering socioeconomic effects of 
discrimination, and other features of the current or past racial 
climate--raise an inference that their unequal opportunity to

54



participate is linked to race or color. In short, members of a 
minority group seeking relief may satisfy the ultimate vote 
dilution inquiry by offering circumstantial evidence that racial 
discrimination is responsible for their unequal opportunity to 
participate in the political process.

III. THE PROPOSED BALANCING FRAMEWORK FOR ANALYZING 
SECTION 2 VOTE DILUTION CLAIMS

The State Defendants, as well as Judge Wood and Judge Entz, 
argue that the analytical framework set forth in Part II of this 
opinion is incomplete. Specifically, they argue that the Ginales 
inquiry, the totality of circumstances inquiry, and the ultimate 
vote dilution inquiry fail to adequately take into account Texas' 
asserted interests in maintaining its current method of electing 
district court judges. Thus, they propose a balancing framework 
for analyzing Section 2 vote dilution claims--a framework in 
which a court would be required to weigh the extent of proven 
vote dilution, as established by the factors set forth in Part II 
of this opinion, against the magnitude of the state's asserted 
interests in the election scheme or practice.

A. The Accepted Role of State Interests in Section 2 Analysis
All parties concede that the state interests underlying an 

allegedly dilutive election practice are relevant to Section 2 
analysis in two ways. First, as discussed above, see supra Part 
II.B.l.i., a state's interests in the challenged election 
practice may be relevant in the totality of circumstances

55



inquiry. The district court may consider as an "additional 
factor" whether the state policies underlying the challenged 
practice are tenuous. See S. Rep. at 29. Second, a state's 
interests in the challenged practice must be taken into account 
during the remedial phase of a vote dilution lawsuit. In 
Whitcomb v. Chavis. 403 U.S. 124, 160-61 (1971), the Supreme 
Court held that the district court may not "broadly brush[] aside 
state apportionment policy" when remedying an allegedly dilutive 
electoral mechanism. Instead, when choosing among remedial plans 
or fashioning one of its own, the district court must honor state 
policies and intrude on those policies only to the extent 
necessary. See Uoham v . Seamon. 456 U.S. 37, 40-42 (1982); White 
v. Weiser. 412 U.S. 783, 795 (1973); see also United States v. 
Dallas County Comm'n. 850 F.2d 1430, 1432 (11th Cir. 1988)
("[W]hen devising election plans, federal courts should defer to 
state legislative policy and modify the state's plan only to the 
extent necessary to cure statutory or constitutional defects."), 
cert, denied. 490 U.S. 1030 (1989).

B. The Proposed Role for State Interests in Section 2 Analysis
The State Defendants, Judge Wood, and Judge Entz propose a 

new role for state interests in Section 2 analysis. Although the 
details for their proposals are different, all the proposals have 
one thing in common. Under each of the proposals, state 
interests in an underlying election scheme would have to be

56



weighed against proven vote dilution before a Section 2 violation 
could be found.

Judge Wood proposes a three-step balancing framework. Under 
her framework a court would first be required, "[i]n each vote 
dilution case, [to] separately determine the existence and 
severity of vote dilution." Judge Wood's Brief on Remand at 29. 
The court would then be required to separately "assess the state 
interests that would be affected." Id. Finally, the court would 
have to "balance the severity of the dilution against the 
intrusion on state interests necessary to cure it to determine if 
a remediable violation of § 2 exists under the totality of the 
circumstances." Id. If the state interests outweighed the 
severity of the dilution, then there would be no violation of 
Section 2.

The balancing framework proposed by Judge Entz is somewhat 
more complex. Under his proposed framework, the minority group 
would first have to satisfy the Gingles threshold inquiry. Once 
the minority group did so, the court would then have to consider 
whether the state interests are legally compelling-- that is, (1) 
whether they relate to a central aspect of state sovereignty, and
(2) whether tampering with them would result in undue federal 
entanglement with the operations of state government. If the 
state interests were compelling, they would "prevent a section 2 
violation." Judge Entz's Brief on Remand at 9. If the state 
interests were not legally compelling, the district court would 
still be required to weigh the state interests in the challenged

57



practice, "along with all other factors . . .  to determine 
whether the [minority group] proved dilution by clear and 
convincing evidence." Id.

Although similar to the framework proposed by Judge Entz, 
the framework proposed by the State Defendants is yet a third 
version of the balancing framework. Under this proposal, the 
district court would first, before inquiring into any alleged 
vote dilution, ascertain whether the challenged election 
procedure is necessary to achieve a compelling state interest.
If this Fourteenth Amendment strict scrutiny standard were 
satisfied, the State Defendants argue, the state interest would 
be "sufficiently strong to outweigh as a matter of law the other 
elements in the totality of the circumstances. . . . "  State 
Defendants' Brief on Remand at 21. If the strict scrutiny 
standard were not satisfied, then, under the State Defendants' 
proposal, the district court would still be required engage in 
some kind of weighing: The plaintiffs would have to set forth
facts to satisfy the Gingles inquiry. The burden would then 
"shift to the state to produce evidence of its interests in the 
maintenance of the system and the non-discriminatory reasons for 
retaining the system." Id. at 24. And finally, if the state met 
its shifting burden, the plaintiffs would have to prove their 
vote dilution case by clear and convincing evidence. Id. at 24- 
25 .

58



C. Problems with the Proposed Balancing Framework
In evaluating the appropriateness of balancing state 

interests against proven vote dilution under Section 2 analysis, 
we discover two problems. The first problem is that the proposed 
balancing framework may not be grounded in law. The second is 
that the proposed balancing framework appears to unnecessarily 
complicate an already complex analysis. Although both of these 
problems call into question the appropriateness of the proposed 
balancing framework, we ultimately need not decide whether such a 
framework is required in this case.

1. The Legal Problem
The proposed balancing framework may be grounded in law in 

one of several ways. First, in amending Section 2 and providing 
for a totality of circumstances analysis, Congress may have 
expressly intended for courts to balance the "total 
circumstances" pointing toward vote dilution against the state's 
asserted interests in the challenged election practice. Second, 
even if Congress did not expressly intend to provide for a 
balancing framework, constitutionally-rooted federalism 
principles may nonetheless require such a framework. Or finally, 
the Supreme Court may have erected a balancing framework when it 
remanded this case to us in Houston Lawyers' Association v. 
Attorney General of Texas. Ill S. Ct. 2376 (1991).

a. Congressional intent. Before addressing any 
constitutional concerns, we first ask whether Congress 
demonstrably intended for state interests to be balanced against

59



proven vote dilution before finding a violation of Section 2. If 
Congress expressed an intent that courts should use a balancing 
framework in analyzing vote dilution claims, we are undoubtedly 
bound by that intent. Of course, in discerning congressional 
intent, we apply the traditional tools of statutory construction, 
looking first to the language of Section 2 and then to the 
legislative history if the language of the statute is ambiguous. 
See Blum v. Stenson. 465 U.S. 886, 896 (1984).

Our inquiry necessarily begins with the language of Section
2. On its face, Section 2 does not allow a state to defeat proof 
of vote dilution by showing that it has a good reason for 
maintaining the challenged electoral practice. It provides, in 
absolute terms, that a violation is established if, "based on the 
totality of the circumstances, it is shown that the political 
processes leading to nomination or election in the State or 
political subdivision are not equally open to participation by 
members [of a racial or language minority]. . . ." 42 U.S.C. §
1973(b). It makes no exceptions.

The Senate Report accompanying the amendment of Section 2 
speaks in similarly absolute terms. The report states: "If as a
result of the challenged practice or structure plaintiffs do not 
have an equal opportunity to participate in the political 
processes and to elect candidates of their choice, there is a 
violation of this section." S. Rep. at 28 (emphasis added). It 
does not make an exception for election practices or structures 
that are justified by strong or compelling state interests. And,

60



although the Senate Report allows courts to consider whether the 
state interests underlying the challenged procedure are tenuous, 
this consideration is qualitatively different from balancing 
state interests against proven vote dilution. Moreover, Congress 
emphasized that "even a consistently applied practice premised on 
a racially neutral policy would not negate a plaintiff's showing 
through other factors that the challenged practice denies 
minorities fair access to the process." Id. at 29 n.117. Thus, 
the Senate Report, like the language of Section 2 itself, appears 
inconsistent with the balancing framework proposed in this case.

b. Federalism principles. The State Defendants, Judge 
Wood, and Judge Entz argue that, even if Congress did not 
expressly intend for courts to employ a balancing framework under 
Section 2, federalism principles nonetheless require us to 
construe Section 2 to allow for such an approach. Relying 
primarily on the Supreme Court's decision in Gregory v. Ashcroft. 
Ill S. Ct. 2395 (1991), they argue that we should employ a plain 
statement rule of statutory construction. In particular, they 
argue that we should construe Section 2 to require a balancing 
framework unless Congress has unmistakably indicated its intent 
to upset the usual constitutional balance of federal and state 
powers.

In Gregory. the Supreme Court granted certiorari to decide 
whether the mandatory retirement provision for state judges in 
the Missouri Constitution violated the federal Age Discrimination 
in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. See 111

61



S. Ct. at 2398. The ADEA prohibits any employer, including state 
employers, from discharging an employee who is at least 40 years 
old because of such individual's age. 29 U.S.C. § 630(b)(2).
The definition of "employee" under the ADEA, however, excludes 
all elected and most high-ranking government officials. See 29 
U.S.C. § 630(f). The crucial question in Gregory thus became 
whether state judges, who are appointed by the Governor of 
Missouri and thereafter subject to retention elections, were 
"employees" within the meaning of the ADEA. Ill S. Ct. at 2403.

In order to avoid potential constitutional problems, the 
Court in Gregory applied a "plain statement" rule of statutory 
construction, requiring Congress to unmistakably express its 
intention to alter the usual constitutional balance between the 
states and the federal government. Because Congress did not 
plainly express its intent to include appointed state judges 
within the terms of the ADEA, the Court held that such judges 
were not covered. Ill S. Ct. at 2404. The Court reasoned that 
it "would not read the ADEA to cover state judges unless Congress 
has made it clear that judges are included." Id. (emphasis in 
original).

The Court's application of the plain statement rule in 
Gregory rested on two concerns. The first was the nature of the 
state interest involved. The Court emphasized that the Missouri 
constitutional provision was not just "an area traditionally 
regulated by the States, [but] a decision of the most fundamental 
sort for a sovereign entity." Ill S. Ct. at 2400. According to

62



the Court, "the authority of the people of the States to 
determine the qualifications of their most important government 
officials. . . lies at 'the heart of representative government.'" 
Id. at 2402. The second concern was the nature of the power 
being exercised by Congress under the ADEA. Although there was 
some argument that Congress acted pursuant to its enforcement 
powers under the Fourteenth Amendment in passing the ADEA, the 
Court in Gregory ultimately concluded that Congress had acted 
only pursuant to its Commerce Clause powers. See id. at 2404-06. 
The Court thus expressed its rationale for applying the plain 
statement rule when it said: "As against Congress' powers '[t]o
regulate Commerce . . . amojig the several States,' U.S. Const. 
Art. I, § 8, cl. 3, the authority of the people of the States to 
determine the qualifications of their government may be 
inviolate." Id. at 2402-03.

The concerns underlying the Court's application of the plain 
statement rule in Gregory do not, in our view, exist in this 
case. Section 2 of the Voting Rights Act does not impinge on the 
authority of the states to set qualifications for their elected 
officials. Rather, by its terms, Section 2 only impinges on the 
authority of states to employ certain election practices--namely, 
those which result in a denial or abridgment of the right to vote 
on account of race. Furthermore, it is clear that, when Congress 
amended Section 2, it was acting pursuant to its enforcement 
powers under the Fourteenth and Fifteenth Amendments. Congress 
specifically concluded that, "to enforce fully the Fourteenth and

63



Fifteenth Amendments, it is necessary that Section 2 ban election 
procedures and practices that result in a denial or abridgment of 
the right to vote." S. Rep. at 40 (emphasis added).

Moreover, even if we were to apply the plain statement rule 
in determining whether Section 2 provides for the balancing of 
state interests against proven vote dilution, we would be 
inclined to hold that Congress plainly intended that no such 
balancing should occur.12 After all, as previously discussed, 
Congress has indicated in the Senate Report accompanying the

12 As Judge Higginbotham persuasively explained in his 
concurring opinion in League of United Latin American Citizens v. Clements:

We have insisted in other contexts that Congress 
clearly state its intent to supplant traditional state 
prerogatives. Judicial insistence upon clear statement 
is an important interpretative tool vindicating concern 
for separation of powers and federalism. See 
Atascadero State Hospital v. Scanlon, 473 U.S. 234
(1985); Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89 (Pennhurst II). This insistence 
upon "an unequivocal expression of congressional 
intent," Pennhurst II, 463 U.S. at 99, is based upon the fundamental nature of the interests at stake,
Atascadero, 105 S. Ct. at 3147 ("The 'constitutionally 
mandated balance of power' between the states and the 
Federal Government was adopted by the Framers to ensure 
the protection of 'our fundamental liberties.'")
(quoting Garcia v. San Antonio Metropolitan Transit 
Authority, 469 U.S. 528, 572 (Powell, J., dissenting)).
These mighty principles do not carry us very far here. 
Congress has clearly expressed the [Voting Rights]
Act's application to the states, and has clearly 
expressed its intent that violations of the Act be 
determined by a results test rather than an intent 
standard. By these actions, the Act, with all of its 
intrusive effect, has been made to apply to the states.

914 F.2d 620, 641-42 (5th Cir. 1990) (Higginbotham, J., 
concurring in the judgment) (emphasis in original) (parallel 
citations omitted), rev'd and remanded. Ill S. Ct. 2367 (1991).

64



amended Section 2 that even if the challenged election procedure 
is consistently applied and premised on a racially neutral 
policy, such proof does "not negate a plaintiff's showing through 
other factors that the challenged practice denies minorities fair 
access to the [political] process." S. Rep. at 29 n.117. Along 
the same lines, the Senate Report further notes that the failure 
to prove that the state's interests are tenuous "is not rebuttal 
evidence of non-dilution." Id. at 29 n.118. Finally, after 
carefully considering Congress' primary purpose in amending 
Section 2, we believe that examining a state's motives beyond the 
limited inquiry into tenuousness would be inconsistent with that 
purpose. Congress has indicated that, when a plaintiff proceeds 
under the "results test" of Section 2, the court should "assess 
the impact of the challenged structure or practice on the basis 
of objective factors, rather than making a determination about 
the motivations which lay behind its adoption or maintenance."
S. Re p . a t  27 .

Nor are we prepared to hold, as Judge Entz would have us do, 
that Congress' failure to provide for a balancing of state 
interests against proven vote dilution renders Section 2 
unconstitutional.13 In Mississippi Republican Executive

13 Judge Entz makes four arguments in this regard. First, he 
argues that applying the accepted Section 2 framework to state 
trial judges would violate Tenth Amendment federalism principles. 
He further argues, citing The Federalist No . 48 (J. Madison) (J. 
Cooke ed. 1961) and the Texas Constitution, that an application 
of the accepted Section 2 framework would violate separation of 
powers principles. Third, he argues that the 1982 amendments to 
Section 2 were not a valid exercise of Congress' authority under 
the Fourteenth and Fifteenth Amendments. And finally, he argues

65



Committee v. Brooks. 469 U.S. 1002 (1984), the Supreme Court 
summarily rejected the argument that Section 2, "if construed to 
prohibit anything other than intentional discrimination on the 
basis of race in registration and voting, exceeds the power 
vested in Congress by the Fifteenth Amendment." Id. at 1003. We 
have similarly rejected a broad challenge to Congress' power to 
amend Section 2 and prohibit election practices that produce 
discriminatory results. In Jones v. City of Lubbock. 727 F.2d 
364, 373 (5th Cir. 1984), we stated that "Congressional power to 
adopt prophylactic measures to vindicate the purposes of the 
fourteenth and fifteenth amendments is unquestioned." We noted 
that Congress did not lightly interfere with state and municipal 
self-governance. Id. at 374 n.5. Instead, we found that, in 
light of the legislative fact-finding accompanying the amendment 
and the limited nature of the intrusion into state and municipal 
self-determination, Congress had not offended any other provision 
of the Constitution. Id.: see also City of Rome v. United 
States. 446 U.S. 156, 173-75 (1980); South Carolina v.
Katzenbach. 383 U.S. 301, 334 (1966). But see Chisom v. Roemer. 
Ill S. Ct. 2354, 2376 (1991) (Kennedy, J., dissenting)
(clarifying that the Court was not addressing the constitutional 
validity of Section 2).

We recognize that in Gregory the Court indicated that "the 
Fourteenth Amendment does not override all principles of

that Section 2, if applied without balancing state interests, is 
unconstitutionally vague. For the reasons discussed in the text, we reject all of these arguments.

66



federalism." ill S. Ct. at 2405. The Court noted, however,
"that the principles of federalism that constrain Congress' 
exercise of its Commerce Clause powers are attenuated when 
Congress acts pursuant to its powers to enforce the Civil War 
Amendments." Id. The reason federalism principles are 
attenuated in this context, the Court explained, "is because 
those 'Amendments were specifically designed as an expansion of 
federal power and an intrusion on state sovereignty.'" Id. 
(quoting City of Rome. 446 U.S. at 179). Thus, although Congress 
may not act to enforce the Civil Rights Amendments "in complete 
disregard of" the powers retained by the states, Gregory. Ill S. 
Ct. at 2405, concerns of federalism must not be allowed to 
emasculate Congress' power to adopt prophylactic measures to 
vindicate the purposes of those Amendments.

c. The Supreme Court's decision in Houston Lawyers' 
Association. Were it not for isolated passages in the Supreme 
Court's decision in this case, we would likely conclude that the 
proposed balancing framework is not grounded in law. However, 
when the Supreme Court held that Section 2 applies to the 
election of state district court judges in Houston Lawyers' 
A s s o c i a t i o n , it also used language suggesting that state 
interests might have to be balanced against proven vote dilution. 
Relying on the Court's suggestions, the State Defendants, Judge 
Wood, and Judge Entz argue that state interests must be balanced 
against proven vote dilution.

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There are two passages in the Court's opinion in Houston
Lawyers' Association that provide support for the proposed
balancing framework. The first one reads as follows:

Even if we assume, arguendo, that the State's interest 
in electing judges on a district-wide basis may 
preclude a remedy that involves redrawing boundaries or subdividing districts, or may even preclude a finding 
that vote dilution has occurred under the "totality of 
the circumstances" in a particular case, that interest 
does not justify excluding elections for single-member 
offices from the coverage of the § 2 results test.
Rather, such a state interest is a factor to be 
considered by the court in evaluating whether the 
evidence in a particular case supports a finding of a 
vote dilution violation in an election for a single­member office.

Ill S. Ct. at 2380-81 (emphasis added). In the second such
passage, which follows the Court's rejection of the argument that
"the 'single-member office' theory automatically exempts certain
elections from the coverage of § 2," the Court states:

Rather, we believe that the State's interest in 
maintaining an electoral system--in this case, Texas' 
interest in maintaining the link between a district 
judge's jurisdiction and the area of residency of his 
or her voters--is a legitimate factor to be considered 
by courts among the "totality of circumstances" in 
determining whether a 5 2 violation has occurred. A 
State's justification for its electoral system is a 
proper factor for the courts to assess in a racial vote dilution inquiry, and the Fifth Circuit has expressly 
approved the use of this particular factor in the 
balance of considerations. See Zimmer v. McKeithen,
485 F. 2d 1297, 1305 (CA5 1973), aff'd sub nom. East 
Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 
S. Ct. 1083, 47 L. Ed. 296 (1976). Because the State's 
interest in maintaining an at-large, district-wide 
electoral scheme for single-member offices is merely 
one factor to be considered in evaluation the "totality 
of the circumstances," that interest does not 
automatically, and in every case, outweigh proof of racial vote dilution.

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Id. at 2381 (emphasis in original and emphasis added) (internal 
citations omitted). In both of these passages, the underscored 
language suggests that courts should balance state interests 
against proven vote dilution.

Other parts of the Court's opinion in Houston Lawyers' 
Association suggest that the Court was not substituting a new 
balancing framework for the one set forth in Section 2.
Initially, the Court stated that it granted certiorari "for the 
limited purpose of considering the scope of the coverage of § 2." 
111 S. Ct. at 2380. The Court focused' specifically on whether 
judicial elections are subject to Section 2, and its narrow 
holding was: "If a State decides to elect its trial judges, as
Texas did in 1861, those elections must be conducted in 
compliance with the Voting Rights Act." Id. In addition, before 
the Court made any statement suggesting that balancing of state 
interests might be required, it stated that it was "deliberately 
avoid[ing] any evaluation" of the state interest arguments made 
by Judge Higginbotham in his concurrence below. Id. Such 
matters, the Court continued, "are relevant either to an analysis 
of the totality of the circumstances that must be considered in 
an application of the results test embodied in § 2, as amended, 
or to a consideration of possible remedies in the event a 
violation is proved, but not to the threshold question of the 
Act's coverage." Id. (emphasis added).

Further, in the second passage (quoted above) relied on to 
support a balancing framework, the Court begins by recognizing

69



that the state interest in maintaining an electoral system is "a 
legitimate factor to be considered by courts among the 'totality 
of circumstances' in determining whether a § 2 violation has 
occurred." Id. at 2381 (emphasis added). The Court then notes 
that this court "has expressly approved the use of this 
particular factor in the balance of consideration[s]" and cites 
our opinion in Zimmer. 4B5 F.2d at 1305, which formed the basis 
for the treatment of state interests in the Senate Report. The 
inquiry into state interests in the Senate Report is limited to 
an inquiry into whether the state interest is tenuous, and if so, 
it is a factor supporting a finding of dilution. This reference 
to Zimmer, in our view, suggests that the Court did not intend to 
substitute a balancing framework.14

14 Judge Higginbotham interprets the Court's reference to Zimmer in another way and suggests, by quoting an isolated 
passage from our decision in Zimmer, that we held that "a strong 
state policy divorced from the maintenance of racial 
discrimination, " could by itself preclude a holding of vote 
dilution. Dissenting Op. at 46-47. A careful reading of our 
Zimmer decision reveals that Judge Higginbotham's partial quotation is flawed. In Zimmer. we stated:

The Supreme Court has identified a panoply of factors, any number of which may contribute to the 
existence of dilution. Clearly, it is not enough to 
prove a mere disparity between the number of minority 
residents and the number of minority representatives.
Where it is apparent that a minority is afforded the 
opportunity to participate in the slating of candidates 
to represent its area, that the representatives slated 
and elected provide representation responsive to 
minority's needs, and that the use of a multimember 
districting scheme is rooted in a strong state policy 
divorced from the maintenance of racial discrimination, 
Whitcomb v. Chavis, supra, would require a holding of 
no dilution. Whitcomb, would not be controlling, 
however, where the state policy favoring multi-member 
or at-large districting schemes is rooted in racial

70



That the Court in Houston Lawyers' Association did not mean 
to substitute a balancing framework is further supported by what 
is absent from the Court's opinion. The Court's decision does 
not mention, much less discuss, either the Senate Report or 
Thornburg v. Ginales. We question whether the Court would alter 
the Section 2 framework without reference to either of these 
authorities. Nor does the Court's decision indicate why such a 
balancing framework would be required. There is no discussion in 
Houston Lawyers' Association of congressional intent or of 
federalism principles. The absence of such a discussion, in our

discrimination. Conversely, where a minority can 
demonstrate a lack of access to the process of slating 
candidates, the unresponsiveness of legislators to 
their particularized interests, a tenuous state policy underlying the preference for multi-member or at-large 
districting, or that the existence of past 
discrimination in general precludes the effective 
participation in the election system, a strong case is 
made. Such proof is enhanced by a showing of the 
existence of large districts, majority vote 
requirements, anti-single shot voting provisions and 
the lack of provision for at-large candidates running 
from particular geographical subdistricts. The fact of 
dilution is established upon proof of the existence of 
an aggregate of these factors. The Supreme Court's 
recent pronouncement in White v. Regester, supra, 
demonstrates, however, that all these factors need not 
be proved in order to obtain relief.

485 F.2d at 305 (emphasis added). When this passage is read in 
its context, then, it becomes clear that our treatment of state 
interests in Zimmer. rather than supporting the balancing 
framework advocated by Judge Higginbotham, is consistent with 
Congress' treatment of state interests in the Senate Report-- 
namely, that the inquiry is whether the asserted state interests 
are tenuous. We have never held, in Zimmer or otherwise, that a 
"strong state policy divorced from the maintenance of racial 
discrimination, " could by itself "outweigh" other factors 
pointing towards vote dilution.

71



view, suggests that the Court did not mean to require courts to 
balance state interests against proven vote dilution.

Also, in Chisom v . Roemer. decided the same day as Houston 
Lawyers' Association, the Court expressly disavowed any intention 
to alter or amend the elements of a vote dilution claim. The 
Court stated that it was not addressing "any question concerning 
the elements that must be proved to establish a violation of the 
[Voting Rights] Act or the remedy that might be appropriate to 
redress a violation if proved." Id. at 2361. It is difficult to 
believe that the Supreme Court would issue one opinion expressly 
disavowing any intention to alter the elements of a Section 2 
claim, and on the same day issue another opinion which, sub 
silentio, recasts the elements of such a claim.

Finally, prior to Houston Lawyers' Association, the Supreme 
Court has on several occasions rejected the argument that state 
interests may preclude relief from an election scheme violating 
federal law. In Mahan v. Howell. 410 U.S. 315, modified. 411 
U.S. 922 (1973), which involved a challenge to the apportionment 
plan for the Virginia legislature, the Court rejected the state's 
argument that its interest in drawing legislative districts to 
conform to county and city boundaries justified some population 
deviation between districts. Then-Justice Rehnquist wrote for 
the Court that "a State's policy urged in justification of 
disparity in district population, however rational, cannot 
constitutionally be permitted to emasculate the goal of 
substantial equality." Id. at 326. The Court rejected a similar

72



argument in White v. Weiser. 412 U.S. 783 (1973). In White. the 
State of Texas defended its congressional reapportionment plan on 
the ground that it had an interest in preserving the 
relationships between incumbent legislators and their 
constituents. Id. at 791. While the Court did not "disparage 
this interest," it held that district courts should defer to 
state policy "only where that policy is consistent with 
constitutional norms and is not itself vulnerable to legal 
challenge." Id. at 791, 797.

Accordingly, we conclude that Houston Lawyers' Association 
is, at best, ambiguous about the proper role of evidence 
regarding state interests in Section 2 analysis. The passages 
relied on by the State Defendants, Judge Wood, and Judge Entz 
suggest that state interests may be relevant in determining 
whether there is a violation of Section 2. And, in at least one 
of those passages, the Court uses language suggesting that state 
interests might have to be balanced against proven vote dilution. 
In the same breath, however, the Court (1) emphasizes the limited 
scope of its holding, (2) refuses to address Judge Higginbotham's 
concurring opinion regarding the importance of state interests, 
and (3) notes that it is appropriate to consider state interests 
when imposing a remedy for a Section 2 violation. Given this 
ambiguity, we cannot say that the proposed balancing framework is 
wholly unsupported by the law.

2. The Practical Problem

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Section 2 demands a great deal from district courts. They 
must "consider the totality of the circumstances and . . . 
determine, based upon a searching practical evaluation of the 
past and present reality, whether the political process is 
equally open to minority voters." Gingles. 478 U.S. at 79 
(internal quotation marks and citations omitted). "This 
determination is peculiarly dependent on the facts of each case, 
and requires an intensely local appraisal of the design and 
impact of the contested electoral mechanisms." Id. (internal 
quotation marks and citation omitted). Moreover, because Section 
2 cases require close analysis of "extraordinarily fact-oriented 
issues[,]" we have held that, under Rule 52(a) of the Federal 
Rules of Civil Procedure, a district court is "required to 
discuss all the substantial evidence contrary to its opinion." 
Velasquez v. City of Abilene. 725 F.2d 1017, 1020 (5th Cir.
1984) .

The balancing framework possibly suggested in Houston 
Lawyers' Association would further complicate this already 
complex undertaking. Because the state interests would not be a 
signal of dilution like the other Section 2 factors (including 
the tenuousness of the state interests), a court analyzing a 
Section 2 claim under the proposed balancing framework would no 
longer ask only whether, under the totality of the circumstances, 
there is an unequal opportunity to participate in the political 
process. The court would also ask whether, in light of the state 
interests, the unequal opportunity to participate is sufficiently

74



unequal to support a finding of liability under Section 2. In 
other words, the state interests would have to be weighed against 
proven vote dilution. See Houston Lawyers' Association. Ill S. 
Ct. at 2381. The problem with such a framework, from a district 
court's perspective, is the lack of standards for such an 
approach. Neither the Supreme Court's decision in Houston 
Lawyers' Association nor Section 2 provides any guidance for 
determining whether the state interests are substantial enough-- 
or whether the proof of vote dilution is insubstantial enough--to 
excuse the state from Section 2 liability.

The proposed balancing framework becomes even more 
complicated when we consider the number of state interests and 
the possible remedies that might be implicated in any case. 
Although state election schemes generally embody several state 
policy choices, see, e.g.. infra Part III.D.l., the only state 
interests threatened in a Section 2 case are those that would be 
trammeled by a proposed remedy. Thus, the only way to identify 
the threatened state interests would be to identify a remedy.
This difficulty in identifying the threatened state interests is 
not present in the non-balancing framework described in Part II, 
where a court must only ask whether the state interest is 
tenuous. The proposed balancing framework, on the other hand, 
would apparently require a district court to assess the potential 
damage to each of the various state interests during the 
liability phase of a Section 2 case, before the need for a remedy 
has been absolutely determined. In short, a district court would

75



have to weigh, against a showing of minority vote dilution, each 
of the state interests, as that interest is affected by each of 
the possible remedies. Such a complicated balancing act would be 
required, because it is the only way to fairly assess the 
strength of the asserted state interests.

3. Summation
In sum, although there are legal and practical problems with 

the proposed balancing framework, we need not decide whether such 
a framework is required in this case. After a careful review of 
the state interests asserted in this case, see infra Part III.D, 
we conclude that even if Houston Lawyers* Association were read 
to require courts to balance state interests against proven vote 
dilution, the Plaintiffs in this case would still prevail in the 
eight counties in which they have demonstrated vote dilution 
under Section 2, see infra Part IV. Their evidence establishes 
substantial vote dilution in each of the eight counties, and as 
discussed below, the interests asserted by the state are little 
more than tenuous. Moreover, there are several potential 
remedies that could cure the proven vote dilution while 
simultaneously protecting the asserted state interests.

D. Applying the Proposed Balancing Framework in this Case:
Evaluating Texas' Asserted Interests
Before we can weigh the asserted state interests against 

proven vote dilution, see infra Part IV.C., we must evaluate 
Texas' asserted interests. Our evaluation proceeds in three 
steps. First, we identify the threatened state interests.

76



Second, we scrutinize those threatened state interests. And 
finally, we assign a weight to the threatened state interests.

1. Identifying the Threatened State Interests
In evaluating the state interests in a challenged election 

scheme, a court must first, as a matter of law, identify those 
interests that would be threatened by possible remedies. To 
identify state interests in an election scheme or practice, a 
court may look to state statutes and constitutions. See White v. 
Weiser. 412 U.S. 783, 795 (1973) (in the context of legislative 
reapportionment, a federal court "should follow the policies and 
preferences of the State, as expressed in statutory and 
constitutional provisions or in the reapportionment plans 
proposed by the state legislature." to the extent possible under 
federal law) (emphasis added). A court may also look to evidence 
introduced at trial. To identify the subset of state interests 
that are threatened by a finding of vote dilution, however, a 
court must consider all possible remedies. As discussed above, 
only the interests that are threatened by a proposed remedy need 
be considered under the proposed balancing framework.

Texas has various interests in the current method of 
electing district court judges. Among those expressed in the 
state statutes and constitution are the following: an interest
in an elected judiciary;15 an interest in partisan judicial

15 The Texas Constitution requires that each district judge 
be elected. See Tex. Const, art. V, § 6.

77



elections;16 an interest in a qualified judiciary;17 an interest 
in having district judges reside in the district in which they 
serve;18 and an interest in requiring judicial candidates to 
refrain from certain kinds of political activity.19 Based on 
testimony and evidence at trial, the district court identified 
other state interests in Texas' current scheme of electing 
district judges. These include: an interest in an electorate
informed about the qualifications of candidates for district 
court judgeships; an interest in preserving the administrative 
advantages of at-large elections; an interest in allowing judges 
to specialize in areas like family law; a "linkage" interest in 
electing district judges from the area over which they have 
"primary jurisdiction"; and finally, an interest in preserving

16 See generally Tex. Elec. Code Ann. §§ 161.001-182.007 (Vernon 1986) .
17 Under the Texas Constitution, all district judges must be 

licensed to practice law in the state and must have practiced law 
for at least four years prior to their election. See Tex. Const. art. V, § 6.

18 The Texas Constitution requires that all district judges 
reside in the district during the term of office. See Tex. Const. 
art. V, § 6. Further, a district judge candidate must have 
resided in the district for two years prior to the election. See id.

19 The Texas Code of Judicial Conduct prohibits judicial 
candidates from making statements that indicate an opinion on an 
issue that might be subject to judicial interpretation. See 
Texas Supreme Court, Code of Judicial Conduct, Canon 7 (Vernon Supp. 
1992) [hereinafter Tex. Code of Judicial Conduct] . The Code further 
prohibits district judge candidates from making pledges or promises of conduct in office. See id.

78



the function of the district court judge as a sole decision­
maker.20

Most of the interests listed above are not threatened by any 
of the possible remedies in this case. Neither subdistricting, 
cumulative voting, nor limited voting would threaten Texas' 
asserted interests in having an elected and qualified judiciary 
or in having partisan judicial elections. Moreover, none of the 
possible remedies would threaten Texas' interests in requiring 
that judges reside in the district in which they serve and 
refrain from certain forms of political activity. Finally, the 
state interest in an informed electorate would be enhanced by at 
least some of the proposed remedies and threatened by none of 
them.

Four of the interests listed above, however, appear to be 
threatened to some extent by some or all of the proposed 
remedies. Texas' interest in preserving the administrative 
advantages of the current at-large election system is threatened 
to some extent by all of the possible remedies. Texas' interest 
in allowing judges to specialize may also be threatened to a

20 On appeal, Judge Entz raises other state interests that he 
asserts are advanced by Texas' current method of electing 
district court judges. According to Judge Entz, Texas' current 
method of electing district judges also (1) reflects Texas' 
citizens' expression of self-government, (2) protects litigants 
from disenfranchisement, (3) protects the rights of criminal 
defendants, (4) allows judges to specialize, and (5) protects 
minority representation. We do not separately address these 
asserted interests, because they are either components of the 
"linkage" or "sole decision-maker" interests being asserted by 
the State Defendants, were not presented to the district court, 
or are not threatened by any of the proposed remedies.

79



minimal degree, but only by a strict subdistricting remedial 
scheme. Texas' linkage interest may also be threatened by a 
subdistricting remedy. Finally, we are told that Texas' interest 
in preserving the fact and appearance of independence in district 
court judges--that is, in preserving the function of district 
court judges as sole decision-makers-- is threatened by a 
subdistricting remedy.

2. Scrutinizing the Threatened State Interests
Having identified the interests asserted by Texas that would 

arguably be threatened by possible remedies, we now proceed to 
scrutinize those interests. It is not enough to evaluate the 
state interests as a matter of legal or political theory. See 
Gingles. 478 U.S. at 45 (in Section 2 case, court must ground its 
analysis in "a searching practical evaluation of the past and 
present reality" of the community and its politics, and must take 
a "functional view of the political process") (quoting S. Rep. at 
30 & n.120). A court must also examine the practical realities 
of the challenged election scheme to determine the strength of 
the asserted interest. See White v. Weiser. 412 U.S. at 796 (in 
deciding whether district court erred in choosing one of two 
apportionment plan options, an appellate court considers the 
impact of each plan on state apportionment policy); see also 
Westwego III. 946 F.2d at 1123 (concluding, after scrutinizing 
district court's finding that at-large system was justified by 
concerns of administrative efficiency, that such a finding was no 
longer supported by the evidence because of a change in

80



underlying state law). In addition, a court must determine 
whether the challenged election scheme "does in fact advance" the 
asserted state interests. See Mahan v. Howell. 410 U.S. 315, 329 
(emphasis added), modified. 411 U.S. 922 (1973); see also id. at 
326 ("The inquiry . . . [is] whether it can reasonably be said
that the state policy urged . . .is, indeed, furthered by the 
plan adopted by the legislature. . . ."). Finally, in
scrutinizing the asserted state interests, a court must determine 
whether any of the proposed remedies will serve the asserted 
state interests as well as the challenged election scheme. See 
White v, Weiser. 412 U.S. at 791-92 (refusing to decide whether 
state interest was sufficient to justify legislative 
apportionment plan, where another proposed plan served the state 
interest just as well).

The first two state interests that are threatened in this 
case--namely, Texas' interests in preserving the administrative 
advantages of the current system and allowing judges to 
specialize--have received little attention in the parties' 
briefs. This is because the third and fourth threatened state 
interests --Texas' interest in "linking the jurisdictional base of 
district judges directly to the electoral base" and Texas' 
interest in preserving the function of district court judges-- 
have threatened to assume a larger than life role in this 
lawsuit. We scrutinize each of these interests in turn.

a. Texas' interest in preserving the administrative 
advantages of the current at-large system. As a practical

81



matter, we can agree that any of the proposed remedies will 
result in Texas losing some administrative advantages of its 
current method of electing judges. We can also agree that 
maintenance of the current method of electing Texas district 
court judges does to a considerable extent further the state's 
administrative interest. We note, however, that elevating Texas' 
administrative interest~in the liability phase of a Section 2 
case to a dispositive position would be contrary to our decision 
in Westwego I. where we held that the district court should not 
consider the potential disruption of reorganizing an 
administrative structure in determining whether an at-large 
electoral system violates Section 2. 872 F.2d at 1211. More
importantly, however, it must be acknowledged that, in passing 
the 1985 constitutional amendment permitting the creation of 
judicial districts smaller than a county, see Tex. Const, art. V,
§ 7a(i), the Texas legislature and the voters considered the 
potential loss of administrative advantages and concluded that 
the advantages in such smaller districts outweighed any loss of 
administrative advantages under the current system. The voters 
have spoken to this issue.

b. Texas' interest in allowing judges to specialize. Our 
scrutiny of Texas' interest in allowing judges to specialize 
reveals one major weakness in this interest: Several of the
proposed remedies would advance the interest just as well as the 
current election scheme. Under a cumulative voting scheme, for 
example, judges could still specialize. Voters would not be

82



required to cast a vote for specialized judges, but would
nonetheless have the opportunity to cast one or more of their
votes for such judges. Moreover, a subdistricting remedy could
also protect the interest in allowing judges to specialize.
Under a flexible subdistricting remedy, specialized judges would
not necessarily have to be elected from districts the same size
as district court judges who do not specialize. And, if a
subdistricting election scheme for a specialized judge could not
be devised--e.g., if there were only one family law judge per
county--that judge could still be elected on a county-wide basis.

c. Texas' linkage interest. As we have previously noted,
the so-called "linkage interest"--Texas' interest in linking the
elective base of district judges to the area in which they
exercise "primary jurisdiction--has threatened to take on a life
of its own in this litigation. The genesis of this interest, it
appears, is the testimony of Chief Justice Thomas Phillips of the
Texas Supreme Court. At trial, in response to a question asking
him whether "it is a good idea to require at least county-wide
elections" for district court races, Chief Justice Phillips
testified that, in his view, such a requirement was a good idea.
In explaining his answer, Chief Justice Phillips stated:

In my opinion, the district judge should not be 
responsible to the voters over an area that is smaller 
than that area in which the district judge exercises 
primary jurisdiction. If we wanted to go to a system 
where the judge had primary venue responsibility over 
an area smaller than the county, I don't know that I 
would have any objection to electing judges from [an 
area] smaller than a county. And our Justices of the 
Peace do ordinarily have jurisdiction primarily over a 
portion of the county, but as long as we are going to

83



elect judges, as long as judges are going to be 
responsible for all the cases in the county and are 
going to exercise that kind of power and authority over 
persons['] lives and as long as they are going to be 
responsible to the voters, I believe they should be 
responsible to all the voters of the county, or a 
multi-county district.

In this somewhat conflicting testimony, the so-called linkage 
interest was bom.

Although Chief Justice Phillips first uses the phrase 
"primary jurisdiction, "21 it becomes clear that what he was 
attempting to describe was two-fold: first, a judge's elective
base, and second, a judge's "primary venue responsibility."
Thus, although the State Defendants repeatedly speak of the 
state's interest in terms of "linking the -jurisdictional base of 
district judges directly to the electoral base," it is really 
only the district court's venue that has any link to its 
electoral base. The terms "jurisdiction" and "venue" are not 
synonymous under Texas law. See State v. Pounds. 525 S.W.2d 547, 
550 (Tex. Civ. App.--Amarillo 1975, writ ref'd n.r.e.). 
Jurisdiction "is the power of the court to decide a controversy 
between parties and to render and enforce a judgment with respect 
thereto. . . . "  Id. In Texas, district courts have general, 
statewide jurisdiction-- that is, they have the power to hear any 
case that may be filed in the state of Texas. See Tex. Const. 
art. V, § 8 (district courts have jurisdiction of all actions and 
proceedings except where jurisdiction is conferred on another

51 Our search of Texas constitutional, statutory, and 
decisional law reveals no concept or definition of the phrase "primary jurisdiction."

84



court or tribunal by the Texas Constitution or by statute). 
Moreover, a district court's order is effective throughout the 
state. Venue, on the other hand, "is the proper place where [a 
court's] power [to decide a specific controversy] is exercised." 
Pounds. 525 S.W.2d at 550. It concerns the propriety of 
"prosecuting a suit involving a given subject matter and specific 
parties in a particular county. Jeter-Millar Co. v. Kasch Bros, 
Inc.. 466 S.W.2d 598, 600 (Tex. Civ. App.--Eastland 1971, no 
writ). Thus, because all but one of the district judges in this 
case are elected from county-wide judicial districts, their 
elective base can only be linked--if it is linked at all--with 
venue, not jurisdiction.22 23

Moreover, whatever link may have existed between a district 
judge's elective base and venue disappeared in 1985. In that 
year, as we have seen, the state amended its constitutional 
provision tying a district judge to the county in which he or she 
was elected. Specifically, the Texas Constitution now permits 
district judges to be elected from areas smaller than a county 
when a majority of the voters in such a county approve of such an 
election scheme. See Tex. Const, art. V, §§ 7, 7a(i).B

22 Moreover, it bears noting that 27% of Texas' district 
judges are elected from judicial districts that are larger than a 
county. See The American Bench 2 1 3 8 - 5 4  (6th ed. 1991 )  . With 
regard to these district courts, the link between elective base 
and venue becomes more tenuous.

23 In his dissent, Judge Higginbotham places great weight on 
the fact that no county has voted to elect district judges from 
areas smaller than a county. Dissenting Op. at 50. This does 
not change our conclusion that the so-called "required link" 
between elective base and venue is non-existent. The fact is

85



The Texas legislature has also weakened the ties between
district court judges and the counties which elect them by 
establishing a mechanism by which district judges can be 
compelled to periodically sit in other counties. The state of 
Texas is divided into nine administrative judicial regions, the 
smallest of which consists of eleven counties. See Tex. Gov't 
Code Ann. § 74.042 (Vernon 1988). The presiding judge of each 
region may assign judges within the region "to hold special or 
regular terms of court in any county of the administrative region 
to try cases and dispose of accumulated business." Id. § 
74.056(a). The presiding judge of an administrative region may 
further "request the presiding judge of another administrative 
region to furnish judges" to aid in the disposition of 
litigation. Id. § 74.056(b). A judge assigned to sit in another 
county under these provisions "has all the powers of the judge of 
the court to which he is assigned." Id. § 74.059(a). Texas also 
makes widespread use of retired judges, who are assigned across 
administrative region lines. See id. § 75.002. In view of these 
provisions, it is simply not possible to conclude that Texas * * *

that the Texas Constitution does not presently require that 
district judges be elected from areas no smaller than a county. 
Thus, the state has taken a neutral position regarding the 
elective base of district judges: district judges may be elected
from county-wide election districts or they may be elected from
districts smaller than a county.

86



insists on tying its district judges to the counties in which 
they are elected.24

Texas' interest in linking district judges' elective base to 
the respective areas in which they have venue is further weakened 
by the operation of the state's venue rules. The Texas venue 
rules have not been drafted to insure that parties appear before 
judges for whom they have had an opportunity to vote. Instead, 
the venue rules for lawsuits involving living persons--including 
the general venue rule,23 the mandatory venue exceptions,24 and 
the permissive venue exceptions27-- "were, in the main, manifestly

24 For example, under these provisions, any of the fifty-nine 
district court judges elected in Harris County may be assigned, at any time, to hear and decide cases in any of the thirty-four 
other counties in the second administrative judicial region.
Tex. Gov't Code Ann. § 74.042(c) (Vernon 1988). Those same judges 
may as well be assigned to counties in other administrative 
judicial regions throughout the entire state. Any judge can be 
assigned to any county in any region of the state.

23 The general venue provision in Texas provides: "Except as
o t h e r w i s e  p r o v i d e d  b y  [ t h e  mandatory venue rules] or [the 
p e r m i s s i v e  ve n u e  rules], all lawsuits shall be brought in the 
c o u n t y  i n  w h ich  all o r  part of the cause of action accrued or in 
t h e  c o u n t y  of defendant's residence if defendant is a natural 
p e r s o n . "  Tex. Civ. Prac. & Rem. Code Ann. § 1 5 . 0 0 1  (Vernon 1 9 8 6 ) .

26 T h e re  a r e  m a n d a t o r y  v e n u e  p r o v i s i o n s  f o r  t h e  f o l l o w i n g
t y p e s  o f  l a w s u i t s :  (1) a c t i o n s  i n v o l v i n g  r e a l  p r o p e r t y ,  s e e
Te x . Civ. Prac. & Rem. Code Ann. § 1 5 . 0 1 1  (V e rn o n  1 9 8 6 ) ;  (2)
a c t i o n s  t o  s t a y  p r o c e e d i n g s  i n  an a l r e a d y - p e n d i n g  l a w s u i t ,  s e e  
i d . § 15.012; (3) a c t i o n s  t o  r e s t r a i n  e x e c u t i o n  o f  a ju d g m e n t ,  
s e e  i d . § 1 5 . 0 1 3 ;  (4) a c t i o n s  f o r  mandamus a g a i n s t  t h e  h e a d  o f  a 
d e p a r t m e n t  o f  s t a t e  g o v e r n m e n t ,  s e e  i d .  § 1 5 . 0 1 4 ;  (5)  a c t i o n s
a g a i n s t  a c o u n t y ,  s e e  i d . § 1 5 . 0 1 5 ;  and (6) a c t i o n s  i n v o l v i n g  
l i b e l ,  s l a n d e r ,  o r  i n v a s i o n  o f  p r i v a c y ,  s e e  i d . § 1 5 . 0 1 7 .

27 T h e re  a r e  p e r m i s s i v e  v e n u e  r u l e s  f o r  t h e  f o l l o w i n g  t y p e s
o f  a c t i o n s :  (1)  s u i t s  a g a i n s t  an  e x e c u t o r ,  a d m i n i s t r a t o r ,  o r
g u a r d i a n ,  s e e  Tex. Civ. Prac. & Rem. Code Ann . § 1 5 . 0 3 1  (V e r n o n  
1986); (2) s u i t s  a g a i n s t  i n s u r a n c e  c o m p a n i e s ,  s e e  i d .  § 1 5 . 0 3 2 ;
(3) s u i t s  f o r  b r e a c h  o f  w a r r a n t y  b y  a m a n u f a c t u r e r  o f  c o n s u m e r

87



adopted to prevent serious inconveniences and probable injury to
defendants. . . . "  Snyder v. Pitts. 241 S.W.2d 136, 142 (Tex. 
1951). Nor do the Texas venue rules operate evenly. When 
someone who fears being hailed into court as a defendant files an 
action under Texas' Declaratory Judgment Act, the action will be 
"subject to the general venue rule and its . . . exceptions." 
Bracewell v. Fair. 638 S~.W.2d 612, 613 (Tex. App.--Houston [1st 
Dist.] 1982, no writ). There is no mechanism under Texas' venue 
rules, it appears, for piercing the form of the lawsuit. See 
Charles T. Frazier, Jr., Note, Venue Procedure in Texas: An
Analysis of the 1983 Amendments to the Rules of Civil Procedure 
Governing Venue Practice Under the New Venue Statute. 36 Baylor 
L. Rev. 241, 260 (1984) (recognizing that, under the current 
Texas venue rules, a party who anticipates being sued may 
"capture" venue by filing suit first).

The operation of Texas' venue rules suggests that these 
rules have not been developed to promote the accountability of 
judges to the litigants appearing before them. Put differently, 
Texas' venue rules, like the venue rules in the federal courts 
and in the courts of other states, are not designed to foster 
judicial accountability. The most that can be said for the so- 
called "linkage interest" is that there may be some rough 
correlation--a loose link indeed--between a district court's

goods, see id. § 15.033; (4) actions involving certain written
contracts, see id. § 15.035; (5) suits against corporations and
associations, see id. § 15.036; (6) suits against foreign
corporations doing business in Texas, see id. § 15.037.

88



elective base and venue. Perhaps it simply comes down, as 
Justice Phillips candidly put it, to a "good idea."28

Finally, Texas' asserted linkage interest is weakened by the 
availability of several remedies that could cure the dilution 
caused by the use of at-large elections while simultaneously 
protecting Texas' linkage interest. For instance, a system of 
limited voting, in which each voter casts fewer votes than the 
total number of places to be filled, would allow Texas to 
continue to select its district judges through county-wide 
elections --and thereby preserve the "linkage interest-while 
also giving minority voters a meaningful opportunity to elect 
candidates of their choice. See Sen. Gene Green, The Future of 
Judicial Selection in Texas: Election Methods. 55 Tex. B.J. 294,
295 (1992); Daniel R. Ortiz, Note, Alternative Voting Systems as

28 Judge Higginbotham suggests that we understate the local 
nature of district courts by overlooking how venue operates in criminal law. Dissenting Op. at 52-53. A review of Texas' 
criminal venue rules, however, belies Judge Higginbotham's claim 
that they are somehow designed to foster judicial accountability 
and independence. First, it is important to note that Texas 
district courts have "jurisdiction" over any felony committed in 
whole or part anywhere in Texas. See Ex Parte Watson. 601 S.W.2d 
350, 351 (Tex. Crim. App. 1980). Second, there are over ten 
separate criminal venue rules in Texas, each depending on the 
particular offense committed. See Tex. Code. Crim. P. art. 1301 
et seq. And, although criminal venue may be "quasi- 
jurisdictional" in nature, venue can be acquired by "consent" of 
the parties. See id. art. 13.20. Moreover, criminal venue can 
be waived by a defendant's failure to object at trial. See Ex 
Parte Watson. 610 S.W.2d at 351. Finally, the Texas Code of 
Criminal Procedure provides various methods for obtaining a 
change of venue, some of which are meant to protect the rights of 
a criminal defendant. See id. art. 31.01, 31.02, 31.03. Thus, 
we fail to see how Texas' criminal venue rules operate to ensure 
that district judges remain accountable to the people who form 
their elective base.

89



Remedies for Unlawful At-Large Systems. 92 Yale L.J. 144, 148-50
(1982). A system of cumulative voting, in which each voter is 
entitled to cast as many votes as seats to be filled and to give 
her preferred candidate more than one vote, would also protect 
Texas' "linkage interest." See Green, supra. at 295; Note, 
supra. at 153-60.

In sum, our scrutiny of Texas' asserted linkage interest 
reveals several substantial weaknesses in the interest. The 
first is Texas' refusal to insist that judges in fact be elected 
from districts no smaller than a county. The second is Texas' 
willingness to direct judges elected from one county to preside 
periodically over lawsuits filed in other counties. The third 
weakness arises from the uneven operation of Texas' venue rules, 
which do not ensure, even as a general matter, that parties will 
appear before a judge for whom they have had the opportunity to 
vote. And fourth, the strength of Texas' linkage interest is 
weakened by the availability of remedies that will protect it.

d. Texas' interest in preserving the function of district 
court judges as sole decision-makers. Texas maintains that, even 
if it does not consistently link a district court's elective base 
with venue, it nonetheless has a distinct, compelling state 
interest in the function of the district court judge as a sole 
decision-maker. The argument is essentially as follows:
Although in any one county there may be more than one district 
judge with county-wide, overlapping jurisdiction, each district 
judge acts alone in wielding power. That is, "[b]efore any suits

90



are filed, before any cases are assigned, there is a group of
judges with concurrent jurisdiction. . . . "  League of United 
Latin Am. Citizens Council No. 4434 v. Clements. 914 F.2d 621,
649 (5th Cir. 1990) (en banc) (Higginbotham, J., concurring)
(LULAC II). Once a case is assigned, however, "it is decided by 
only one judge. The other judges have absolutely no say over the 
disposition of that case, and no influence over the deciding 
judge." Id. Thus, the district court judge in Texas is not a 
member of a multi-member body like a city council or even an 
appellate court that engages in collegial decision-making.
Rather, the district court judge in Texas is charged with making 
his or her decision alone and with exercising exclusively the 
full authority of the office.

The current method of electing judges, we are told, is 
necessary to preserve the function of the district court as a 
sole decision-maker. Electing district judges from an area no 
smaller than a county ensures that district judges are responsive 
to all litigants equally and that no particular group will have 
undue influence over the decisions that must be made alone by the 
judge. Moreover, under the current method of electing district 
court judges, minorities can participate in all judicial 
elections in each county. This opportunity to participate, the 
argument continues, gives minority voters the opportunity to 
influence all elections.

A subdistricting remedy, it is argued, poses two threats to 
Texas' interest in preserving the function of the district court

91



judge as sole decision-maker. First, such a remedy would 
destroy the appearance if not the fact of independence and 
responsiveness to all. Said another way: if elected from a
subdistrict, a district judge would be prevented from acting 
alone, or making his or her decisions independently, because the 
judge would be beholden to the particular racial group who 
elected him or her. Second, a subdistricting remedy--perversely 
--would disenfranchise minority voters, because they would no 
longer be able to influence the outcome of every district court 
election, but only a few. Such a remedy, the argument goes, 
makes it probable that a minority litigant would appear "before a 
judge who has little direct political interest in being 
responsive to minority concerns." LULAC II. 914 F.2d at 650. We 
address each of these contentions in turn.

Certain parties have suggested on remand that, if minorities 
are given greater voting strength in district court elections, 
the function of district court judges as sole decision-makers 
will be destroyed. Judge Wood argues that the subdistricting 
remedy sought by the Plaintiffs runs "directly counter to the 
historical preference of the citizens of Texas for an elected 
judiciary in which each judge is accountable to each voter and 
independent from special interest groups." Judge Wood's Brief on 
Remand at 31. Judge Wood further suggests that increasing 
minority voters' ability to sponsor and elect district court 
candidates of their choice from single member districts would 
serve no "purpose other than to provide [minority] role models,"

92



role models who would apparently serve "specialized interests
different from those served by Texas' majority judges." Id. at 
29. Judge Entz makes similar suggestions. He argues that, under 
a subdistricting remedy, a trial judge would still be required to 
exercise his or her authority alone, but the authority, which 
would necessarily be "derived from voters representing only a 
fraction of the judge's [current] electoral base," would somehow 
be tainted. Judge Entz's Brief on Remand at 16.

The argument that any proposed subdistricting remedy would 
destroy the district judge's ability to act alone or 
independently is premised on two flawed assumptions. The first 
flawed assumption is that district judges elected from smaller 
election districts will not abide by their oaths. The Texas Code 
of Judicial Conduct charges judges with applying the law and 
states that an honorable judiciary separated from the influence 
of others is "indispensable to justice in our society." Tex.
Code of Judicial Conduct, Canon 1. The Code also stresses that "[a] 
judge should be unswayed by partisan interests, public clamor, or 
fear of criticism." Id. Canon 3 pt. A(l). These directives, by 
which we must assume judges will abide, effectively negate any 
concern about a judge's ability, even one elected from a 
subdistrict, to continue making his or her decisions alone.”

” At trial, several parties contended that judges elected 
from smaller election districts would be more susceptible to 
undue influence from organized crime. In view of the vast 
differences in the size of Texas' current judicial districts, 
such a contention is without merit. Texas has created numerous 
judicial districts with relatively small populations. In two 
districts, less than 12,000 people constitute the electorate. In

93



The second flawed assumption is a more disturbing one.
Underlying the argument that a subdistricting remedy would 
destroy a district judge's ability to act independently is the 
following assumption: while district judges who are currently
elected by white majorities in each of the counties at issue are 
responsive to the needs of all voters in the county-- including 
minority voters--a judge who would be elected by minorities in a 
single-member district would be unresponsive to the current white 
majority. The flaw in this assumption being clear, we will not 
address it further.

More important, this argument has been implicitly rejected 
by the Texas legislature and Texas voters in 1985. By amending 
the Texas Constitution to allow for the election of district 
judges from an area smaller than a county, see Tex. Const, art. V, 
§7a(i), the Texas legislature and Texas voters must have 
concluded that district judges who are elected from an area 
smaller than a county could continue to make their decisions 
alone and independently. In short, the voters have spoken to 
this concern.

six more districts, less than 20,000 constitute the electorate. 
Finally, in thirty-one judicial districts, less than 40,000 
constitute the electorate. See Appendix I (table of judicial 
districts with fewer than 40,000 people in the electorate).

Even if a single-judge subdistricting remedy were imposed in 
this case, the resulting subdistricts would have populations 
ranging from 27,545 to 52,042. See Appendix II (table of 
potential subdistricts). Given that every single-judge 
subdistrict would thus be larger than several existing districts, 
it is not possible to conclude that a single-judge subdistricting 
remedy would increase the risk of undue influence from organized crime.

94



The second contention raised by the parties in connection 
with the single-member office theory is that, because there is no 
share of district court judgeships, creating safe minority 
district court positions would disenfranchise minorities. Judge 
Entz argues that, under the current method of electing district 
court judges, voters of all races are permitted to influence 
every judicial election in the county. Judge Entz's Brief on 
Remand at 17. An alternative system would, in Judge Entz's view, 
"fix geographical and racial power and influence over judicial 
elections for all time--and actually limit the numbers of 
judicial benches possible for a growing minority population."
Id. According to Judge Wood, the subdistricting remedy sought by 
the Plaintiffs in this case would disenfranchise all the voters 
in each of the counties at issue, "thereby greatly decreasing 
minority voting power." Judge Wood's Brief on Remand at 31.

Again, the argument about the disastrous results of 
subdistricting is flawed. The argument that in subdistricting 
judicial positions, "[minority] voters will . . .  be sacrificing 
[an] extremely valuable political right--the right to vote for 
all of the judges who will be serving as judges in the [county] 
wherein they live," see Southern Christian Leadership Conference 
of Alabama. 785 F. Supp. at 1478--smacks of paternalism. It 
essentially tells minority voters in each of the target counties 
in this case that they must somehow be saved from themselves. In 
our view, it is not difficult to understand why minority voters 
would willingly "sacrifice" their ability to vote for all judges

95



and elect none for the ability to vote for and elect a few 
judges. Indeed, Congress amended Section 2, at least in part, to 
allow minority voters to make such a sacrifice.

In sum, after scrutinizing Texas' interest in preserving the 
function of district court judges as sole decision-makers, we 
conclude that this interest is not actually threatened by any of 
the proposed remedies--including subdistricting. There is no 
evidence in this record suggesting that judges elected from 
smaller districts, or judges elected from districts in which 
minority voters constitute a majority, would be any less 
independent in deciding cases. Nor is there any evidence 
suggesting that judges elected from such districts would be any 
less sensitive to the diverse interests of the litigants than the 
judges who are currently elected from larger districts.

3. Assigning a Weight to the Threatened State Interests
Assuming that courts are required to apply a new balancing 

framework to Section 2 claims, we think that the weight assigned 
to any state interests is probably a question of law.30 We note

In analogous areas of the law-- including substantive due process, equal protection, and first amendment law--the 
weight of an asserted state interest has always been resolved by 
the court as a legal question. For example, in Posadas de Puerto 
Rico Association v. Tourism Co. of Puerto Rico. 478 U.S. 328, 341
(1986), the Court had "no difficulty in concluding that the 
Puerto Rico Legislature's interests in the health, safety, and 
welfare of its citizens constitutes a 'substantial' governmental 
interest." In reaching this conclusion, the Court did not refer 
to the clearly erroneous rule, but instead made its own, de novo 
determination of the weight of the state interest. See also 
Midnight Sessions, Ltd, v. City of Philadelphia. 945 F.2d 667,
682 (3rd Cir. 1991) (holding that determination of whether a 
legislative scheme is rationally related to a legitimate 
government interest is a question of law for the court to

96



that, to a limited extent, the inquiry into the weight of the 
state interests is not novel. That is, from the beginning, vote 
dilution cases have focused on the tenuousness of the state 
interests. See. e.g .. Cross v. Baxter. 604 F.2d 875, 878, 884 
(5th Cir. 1979); Zimmer. 485 F.2d at 1305, 1307. District courts 
deciding these cases have assigned tenuous or non-tenuous weights 
to the various interests asserted by the affected jurisdictions. 
See. e.g.. Canton Branch. NAACP v. City of Canton. 472 F. Supp. 
859, 876 (S.D. Miss. 1978). Appellate courts appear to have 
looked at the weight of the state interests afresh without 
deference to the district courts' decisions. See. e.g.. Zimmer. 
485 F.2d at 1307. In all cases, courts addressing the tenuous or 
non-tenuousness of the state interests have done so without 
explaining whether the decision is a question of law or fact. 
Given the legal sources that underlie the determination, we think 
that the strength of the state interests may be a legal question. 
But, in candor, we are not certain that it has made any 
difference what kind of a question it is. It is important, 
however, that the inquiry about the weight of a state interest, 
at least to the extent of determining whether it is tenuous, is a 
familiar question.

decide), cert, denied. 112 S. Ct. 1668 (1992); Magill v. Lynch. 
560 F.2d 22, 27 (1st Cir. 1977) (reviewing de novo the district 
court's determination that municipality's interests were not 
sufficiently compelling to justify prohibiting city employees 
from engaging in a broad range of political activities), cert. denied. 434 U.S. 1063 (1978).

97



Even though the weight of Texas' threatened interests may be
a legal question which we could determine de novo. we find 
ourselves in agreement with much of what the district court had 
to say about Texas' asserted interests. In particular, we agree 
with the district court that, while the threatened state 
interests underlying Texas' current method of electing district 
judges are not tenuous, they are not compelling either. On the 
basis of our scrutiny of those interests, we conclude that Texas' 
interests in (1) preserving the administrative advantages of the 
current at-large system, (2) allowing judges to specialize, (3) 
linking the elective base of district court judges with venue, 
and (4) preserving the function of district court judges are at 
best "legitimate state interests." They are not, based on our 
review of Texas law and the practical realities of the Texas 
judicial system, compelling or substantial state interests. 
Accordingly, in any proposed balancing framework, they would be 
entitled to little weight.

IV. REVIEW OF THE DISTRICT COURT'S SECTION 2 LIABILITY FINDINGS 
Having set forth the analytical framework (or frameworks) 

for analyzing Section 2 claims, we now proceed to the question 
framed at outset of this opinion: Did the district court err in
concluding that the method by which Texas elects district court 
judges--as that method operates in the nine target counties-- 
violates Section 2 of the Voting Rights Act? Because of the 
uncertainty about the relevance of state interests in Section 2

98



analysis, we think it prudent, in answering this question, to 
evaluate the district court's findings under both the accepted 
analytical framework and the proposed balancing framework.
Before reviewing the district court's findings under the two 
frameworks, however, we explain the standard of appellate review.

A. Standard of Appellate Review
The standard of appellate review for findings made in a 

Section 2 case is the clearly erroneous standard set forth in 
Rule 52(a) of the Federal Rules of Civil Procedure. The Supreme 
Court made this clear in Gingles by "reaffirm[ing]" that the 
ultimate Section 2 liability or vote dilution finding is reviewed 
for clear error. See 478 U.S. at 79. We have also recognized 
that the district court's subsidiary findings under the Gingles 
threshold inquiry and the totality of circumstances inquiry--with 
the possible exception of the tenuousness of the state interests, 
see supra Part III.D.3--are also reviewed under the clearly 
erroneous standard. See Westwego I. 872 F.2d at 1203; Campos v. 
City of Bavtown. 840 F.2d 1240, 1243 (5th Cir. 1988), cert. 
denied. 492 U.S. 905 (1989).

The reason we apply such a standard of review is due to the 
nature of the vote dilution inquiry. As the Supreme Court in 
Gingles recognized, the vote dilution determination under Section 
2 is "peculiarly dependent upon the facts of each case" and 
requires "an intensely local appraisal of the design and impact 
of the contested electoral mechanisms." Gingles. 478 U.S. at 79.

99



. citations omitted). Moreover, "the 
(internal quotations and ext

f the clearly-erroneous standard to u
a p p l i c a t i o n  o f  the c l  Y t r i a i

f i n d i n g s  o f  v o t e  tfce  i n d i g e n o u s  p o l i t i c a l
c o u r t ' s  p a r t i c u l a r  f a m i l i a  Y

r e a l i t y  w i t h o u t  e n d a n g e r in g  t h e  r u l e  o f  l a w . ' - - -

Ev e n  u n d e r  the c l e a r l y  e r r o n e o u s  s t a n d a r d  sen—* r;:: rr
t h e y  r e s t  o n  an  e r r o n e o u s  ^  ^  s t a t e d  i n

”  ' \  Co 693 F • 2d 1155 ,5th Cir. 19 82, = a
"“^ J ^ T ^ T e d  on a misapprehension of g a m i n g  legal
f i n d i n g  o f  f a c t  . c l e a r l y  e r r o n e o u s -. loses the i n s u l a t i o n  o f  the c l e a  y
s t a n d a r d s ,  d i s t r i c t  c o u r t ' s  f i n d i n g  l o s e s  the

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. £ t h e  c l e a r l y  e r r o n e o u s  r u l e ,  h o w e v e r ,  " a  rem and

i n s u l a t i o n  o f  t h e  c  ^  ^  o n l y  o n e  r e s o l u t i o n

the proper c _ £ullEaniStandard, 456 n . S .  at 292
o f  the f a c t u a l  i s s u e .  a c c o r d i n g  to the

v, ■„ a d d ed ) A rem and i s  generally p r o p e r ,  a c c o r d
(e m p h a s is  added ) . f  r y.e

„  i t  i s  t h e  d i s t r i c t  c o u r t ,  an d  n o t  the 
Supreme C o u r t ,  b e c a u  f a c t f i n d i n g  i n
c o u r t  o f  a p p e a l s ,  who i s  " c h a r g e d  w i t h  t h e

Che first instance." Id^ at 293.
I£  t h e  d i s t r i c t  c o u r t  a p p l i e s  t h e  a p p r o p r i a t e  l e g a

Of f a c t  u n d e r  R u le  5 2 ( a )  we w i l l  
s t a n d a r d s  i n  m ak ing  a f i n d i n g  ' r e c o r d ,

c s e t  a s i d e  t h a t  f i n d i n g  u n l e s s ,  b a s e d  u p o n  t h e  e n t i r err.:.".. - - - — - * “
t-,, nf Bpqeompr City, 4has been committed." Anderson^-Xi-Y:

„  • Q r a r p s  -  u n i t e d  S t ates_GYBSum
564, 573 (1985) (quoting United-------------------

100



Co.. 333 U.S. 364, 395 (1948)). "If the district court's account
of the evidence is plausible in light of the record viewed in its 
entirety," we will not reverse it--even if convinced that had we 
"been sitting as the trier of fact, (we] would have weighed the 
evidence differently." Anderson. 470 U.S. at 573-74. Moreover, 
we give "due regard . . .  to the opportunity of the trial court 
to judge of the credibility of the witnesses." Fed. R. Civ. P. 
52(a). This reluctance to reverse a district court's findings 
under the clearly erroneous standard persists "even when the 
district court's findings do not rest on credibility 
determinations, but are based instead on physical or documentary 
evidence or inferences from other facts." Anderson. 470 U.S. at 
574.

B. Review of the District Court's Vote Dilution Findings Under
the Accepted Section 2 Framework
Our review of the district court's vote dilution findings 

under the accepted Section 2 framework proceeds in three parts.
In the first part, we discuss the methodology used by the 
Plaintiffs and accepted by the district court, and address the 
general attacks on that methodology by the State Defendants,
Judge Wood, and Judge Entz. In the second part, we review the 
district court's subsidiary fact findings under the Gincles 
threshold inquiry and the totality of circumstances inquiry, as 
well as the district court's ultimate vote dilution finding in 
each of the nine counties. Finally, in the third part we

101



consider the impact of the evidence of partisan voting patterns 
on the district court's ultimate vote dilution findings.

1. Statistical Methodology
At trial, the Plaintiffs relied heavily on statistics to 

establish that Texas' method of electing judges results in vote 
dilution in each of the nine target counties. To establish the 
first Gingles factor--the size and geographical compactness of 
the minority group--the Plaintiffs used voting age population 
data from the 1980 Census. To establish the second and third 
Gingles factors--the political cohesiveness of the minority group 
and legally significant white bloc voting--as well as the 
existence of racially polarized voting, the Plaintiffs performed 
certain statistical analyses on results from various elections. 
Finally, the Plaintiffs relied on statistics to establish certain 
factors that are relevant to the totality of circumstances 
inquiry--namely, the lingering socioeconomic effects of 
discrimination and the extent to which minorities have been 
elected to public office.

Because of the position of the second and third Gingles 
factors and racially polarized voting in Section 2 analysis, it 
is important to outline the Plaintiffs' statistical methodology 
with regard to these factors. There are three aspects to this 
methodology: (1) the subset of elections that the Plaintiffs
chose to analyze; (2) the manner in which the Plaintiffs isolated 
the race of the voters in the nine target counties; and (3) the

102



types of analyses the Plaintiffs chose to perform on the 
particular election results.

With regard to the elections that were analyzed, the 
Plaintiffs' experts, Dr. Engstrom and Dr. Brischetto, were guided 
by several principles. They only studied elections in which a 
minority candidate opposed a white candidate. Also, they 
preferred to analyze general elections as opposed to primary 
elections; however, they analyzed primary elections when no 
minority candidate made it past that stage of the electoral 
process. Finally, they preferred to analyze state district court 
elections. If, however, there were no district court elections 
or primaries in which a minority candidate opposed a white 
candidate, the Plaintiffs' experts looked, in the following order 
of preference, to county court elections, justice of the peace 
elections, and statewide judicial races.

In isolating the independent variable for their statistical 
analyses, the racial composition of election precincts, the 
Plaintiffs' experts took various approaches, depending on the 
availability of data. In counties where the Plaintiffs were 
proceeding only on behalf of Hispanics, they relied on Spanish 
surname counts done by the Texas Secretary of State to determine 
the percentage of Hispanic registered voters in any given 
precinct. In other instances--for example, in Harris and Dallas 
counties--the Plaintiffs' experts used updated counts of Black 
and Hispanic total or voting age population in each precinct of 
the county. If such counts were not available, then the

103



Plaintiffs' experts relied on data from the 1980 Census. When 
relying on census data, the Plaintiffs' experts calculated the 
number of non-minorities within precincts by subtracting the 
number of Hispanics and Blacks from the total number of persons 
within the precinct.

The Plaintiffs' experts performed two types of analyses on 
the data sets that were obtained: ecological regression analysis
and extreme case or homogeneous precinct analysis.31 "Ecological 
regression analysis" shows the relationship between the ethnic 
composition of voting precincts and voting behavior--or, to put 
it differently, which candidate receives how many votes from each 
race or ethnic group. See Overton v. City of Austin. 871 F.2d 
529, 539 (5th Cir. 1989). "Extreme case or homogeneous precinct 
analysis" focuses on precincts in which almost all of the voting 
age population belong to one ethnic group. Under this type of 
analysis, if the race or ethnicity of a voter predicts voting 
behavior, then election results in predominately minority 
precincts should differ from results in predominately white 
precincts.

The State Defendants, Judge Wood, and Judge Entz raise 
various, across-the-board challenges to the methodology used by 
the Plaintiffs and accepted by the district court. They first 
attack the Plaintiff's reliance on 1980 Census figures to

31 Both of these types of analyses are essentially forms of 
"bivariate regression analysis"--meaning that they correlate the 
race of voters and the level of support given to a particular 
candidate without considering other variables that might explain voters' choices.

104



establish the Ginales factors. They also challenge the 
Plaintiffs' selection of elections. Finally, they complain about 
the Plaintiffs' use of bivariate regression analysis in 
establishing racially polarized voting.

With regard to the Plaintiffs' use of population statistics 
from the 1980 Census, the complaint is that the statistics are 
dated. Quoting this court's decision in Houston v. Haley. 859 
F.2d 341, 345 (5th Cir. 1988), vacated on other grounds, 869 F.2d 
807 (5th Cir. 1989), Judge Entz argues that n[w]hatever the 
voting age population composition was [in 1980], given mobility, 
mortality, and coming of age, we cannot tell with any certainty 
what it is today." Thus, Judge Entz concludes that the 
Plaintiffs failed to carry their burden of proof with regard to 
the Gingles factors, and that, therefore, the district court 
erred in relying on their statistical analyses. We disagree.

After examining the record and Fifth Circuit law on this 
issue, we conclude that the complaint about the Plaintiffs' use 
of outdated statistical data is without merit. In Overton, we 
recognized that "absolute perfection of the base statistical data 
is not to be expected." 871 F.2d at 539. It is difficult for us 
to fault the Plaintiffs--and the district court--for relying on 
the most recent census figures in this case. Moreover, we note 
that in Dallas and Harris counties, the Plaintiffs relied on 
updated census figures. Judge Entz would apparently require 
minority groups seeking relief under Section 2 to either bring 
their lawsuits within the first few years after census figures

105



are released or engage in a costly re-estimation of population 
figures. Although we cautioned in Overton that "a trial court 
should not ignore the imperfections of the data used nor the 
limitations of the statistical analysis," id.. we do not think 
the trial court ignored the imperfections in the data set relied 
on by the Plaintiffs in Dallas County. Instead, the district 
court, after carefully considering those imperfections, accepted 
the data sets used by the Plaintiffs as being reliable. 
Accordingly, we conclude that the district court did not err in 
relying on the 1980 Census population data or on the analyses by 
the Plaintiffs' experts who also relied on this data.

The State Defendants, Judge Wood, and Judge Entz also 
complain about the principles by which the Plaintiffs' experts 
chose the relevant elections to be analyzed. They argue 
specifically that the Plaintiffs' experts should have considered 
more elections--elections pairing white candidates against white 
candidates, elections pairing white candidates against other 
minority candidates, primary elections, and non-judicial 
elections. Because the Plaintiffs' experts did not consider all 
of these types of elections, they conclude that the district 
court erred in relying on the Plaintiffs' analyses. Again, we 
disagree.

The State Defendants, Judge Wood, and Judge Entz essentially 
complain that, in the battle of the experts, their expert--Dr. 
Taebel- -lost. Dr. Taebel analyzed the various types of elections 
described above, and the district court considered his analyses

106



in each of the counties at issue. We cannot fault the district 
court for giving more weight to the elections analyzed by the 
Plaintiffs' experts, especially given our recognition that "the 
evidence most probative of racially polarized voting must be 
drawn from elections including both [minority] and white 
candidates." Westweao I. 872 F.2d at 1208 n.7. Accordingly, we 
reject the complaint that, as a matter of law, the elections the 
Plaintiffs chose to analyze are insufficient to establish the 
second and third Gincrles factors as well as the existence of 
racially polarized voting.

Finally, Judge Wood argues that, to establish racially 
polarized voting, the Plaintiffs were required to conduct a 
multivariate analysis on the election results--an analysis that 
would consider variables other than the race of the voter, such 
as partisan affiliation of the candidate, whether the candidate 
was endorsed by the local bar poll, and campaign expenditures.
We reject this argument. As we have already explained, see supra 
Part II.B.l.b. and note 7, to establish racially polarized 
voting, a Section 2 plaintiff need only demonstrate that whites 
and minorities vote differently. Thus, bivariate analyses such 
as the ones used by the Plaintiffs are sufficient.

In sum, we conclude that the statistical methods used by the 
Plaintiffs, although not perfect, are sufficient for purposes of 
establishing the Gingles factors and racially polarized voting. 
The Plaintiffs and the district court could reasonably rely on 
1980 Census statistics. It was also reasonable for the district

107



court to give more weight to the elections analyzed by the 
Plaintiffs. And finally, the Plaintiffs' were not required to 
use a multivariate analysis to demonstrate the existence of 
racially polarized voting.

2. Review of District Court's Vote Dilution Findings
In Singles, the Supreme Court stated that n[t]he inquiry 

into the existence of vote dilution caused by submergence in a 
multimember district is district specific." 478 U.S. at 59 n.28 
In a case like this, where a number of vote dilution claims are 
raised in one case, the district court must rely on data 
"specific to each individual district" in making the appropriate 
findings under the Gingles threshold inquiry and the totality of 
circumstances inquiry. See id. The district court may not, 
according to the Court in Gingles. rely on data aggregated from 
all the challenged districts. Id.; see also id. at 101 
(O'Connor, J., concurring) (voting statistics from one district 
are ordinarily irrelevant in assessing the totality of 
circumstances in another).

Because the Plaintiffs challenge Texas method of electing 
judges, as that method operates in nine target counties, we 
review the district court's findings on a county-by-county basis 
That is, with regard to each of the nine target counties--Bexar 
County, Dallas County, Ector County, Harris County, Jefferson 
County, Lubbock County, Midland County, Tarrant County, and 
Travis County--we review the district court's specific findings 
under the Gingles inquiry, the totality of circumstances

108



inquiry32 and the ultimate vote dilution inquiry33 for clear 
error.

a. Bexar County

In Bexar County, where nineteen (19) state district court 
judges are elected in county-wide elections, Plaintiffs proceed 
only on behalf of Hispanic voters. At trial, the district court 
found that Plaintiffs had introduced evidence sufficient to 
establish all three Gingles factors and five of the factors 
listed as relevant in the totality of circumstances inquiry. 
Based on this evidence, the district court found that Texas' 
method of electing district judges dilutes Hispanic voting 
strength in Bexar. For the following reasons, we conclude that

32 We do not separately address two of the district court's 
findings under the totality of circumstances inquiry. First, 
with respect to the responsiveness of district judges in the 
target counties, the district court found nothing in the record 
"to suggest a lack of responsiveness . . .  to the particularized 
needs of members of the minority community." This finding is not 
challenged on appeal and we do not address it further. Second, 
we do not address the tenuousness of the state interests, having 
already done so in Part II.D. supra and having agreed with the 
district court's assessment.

33 With respect to the ultimate vote dilution inquiry, we 
assume, for purposes of this part of the opinion, that the 
district court's ultimate vote dilution finding is protected by 
the clearly erroneous rule. We consider separately, in Part 
IV.B.3 infra. whether the district court's refusal to consider 
evidence of partisan voting patterns renders erroneous its 
ultimate vote dilution findings in the seven counties for which 
such evidence was offered. We also consider separately, in Part 
IV.C. infra. whether the proposed balancing framework that may 
have been indicated by the Supreme Court in Houston Lawyers 
Association. see supra Part II, would affect the district court's 
ultimate vote dilution findings in the target counties.

109



none of the district court's findings with regard to Bexar County 
is clearly erroneous.34

(i) Gingles factors. With regard to the first Gingles 
factor, the district court found that, as a group, Hispanic 
voters in Bexar County are sufficiently large and geographically 
compact to constitute a majority in a single member district. In 
making this finding, the district court relied on evidence 
introduced by the Plaintiffs indicating that (a) Hispanics 
constitute 41.1% of the voting age population in Bexar County,
(b) Hispanics primarily reside in the central and south central 
sections of Bexar County, and (c) it would be possible to create 
eight single-member districts in which voting-age Hispanics 
constitute majorities. Because the district court correctly 
based its determination on the voting age population in Bexar 
County, see supra Part II.A.1., and because its determination is 
plausible in light of the record, we conclude that its finding 
with regard to the first Gingles factor is not clearly erroneous.

34 Before addressing the district court's vote dilution 
findings in Bexar County, we consider the district court's 
refusal to allow certain Bexar County district judges to 
intervene after trial. On appeal, these Bexar County district 
judges argue that the district court erred in denying their post- 
trial motion to intervene under Rule 24 of the Federal Rules of 
Civil Procedure. We disagree. A motion to intervene under Rule 
24(a) (intervention as of right) or under Rule 24(b) (permissive 
intervention) must be timely. See Jones v. Caddo Parish School 
B̂ L., 735 F.2d 923, 926 (5th Cir. 1984) (en banc). Although the 
district court did not expressly state, in denying the Bexar 
County district judges' motion to intervene, that their motion 
was untimely, it was well within the district court's discretion to deny the motion on this ground.

110



The district court also found, under the legal standards 
required to establish the second Gingles factor, see supra Part 
II.A.2., that Hispanic voters in Bexar County are politically 
cohesive. In reaching this finding, the district court primarily 
relied on Dr. Brischetto's statistical analysis of six district 
court elections in which Hispanic candidates opposed white 
candidates. This analysis indicated that, in Bexar County, 
Hispanic voters gave 73% to 93% of their votes to the same 
candidate. The district court also relied on a bivariate 
regression analysis performed by Dr. Brischetto, an analysis that 
demonstrated a "strong relationship between race and voting 
patterns in Bexar County." In view of this evidence, we are not 
"left with a definite and firm conviction" that the district 
court was mistaken in finding that Hispanic voters in Bexar 
County are politically cohesive. Thus, this finding may not be 
set aside as clearly erroneous.

As for the third Gingles factor, the district court 
determined, after considering all the testimony offered by the 
Plaintiffs and the State Defendants, that there is legally 
significant white bloc voting in Bexar County. The district 
court first considered Dr.’Brischetto's statistical analysis of 
the six general elections in which Hispanic district court 
candidates opposed white candidates. This data indicated that 
the preferred candidate of Hispanic voters won only once and that 
the non-Hispanic support for the Hispanic-preferred candidate

111



The districtranged from 18% to 35% in those six elections.33 
court also considered statistical evidence offered by Dr. Taebel, 
the State Defendants' expert, who analyzed twelve general 
elections, only one of which was a district court election, and 
eighteen primary elections. Dr. Taebel found that the Hispanic- 
preferred candidate won three of twelve general elections and six 
of eighteen primary elections. Finally, the district court 
considered testimony from Hispanic judicial candidates who 
attributed their losses to the lack of adequate support from 
white voters. Given the evidence presented to the district 
court, we cannot say that it clearly erred in finding persuasive 
Dr. Brischetto's conclusion that the white bloc vote in Bexar 
county is sufficiently strong to usually defeat the Hispanic 
community's preferred candidate.

(ii) Totality of circumstances factors. Inquiring into the 
totality of the circumstances in Bexar County, the district court 
found: that Hispanics had been subject to a history of
discrimination in voting, that elections in Bexar County were 
characterized by racially polarized voting, that several aspects 
Texas' method of electing district judges enhance the opportunity 
for discrimination in Bexar County, that Hispanics in Bexar 
County continue to bear the socioeconomic effects of past

33 The State Defendants contend that the district court did 
not specifically assess the impact of white cross-over voting.
The district court's memorandum opinion refutes this contention. 
The district court expressly considered the extent of white 
cross-over voting in Bexar County, as well as in all the 
remaining counties. Thus, the State Defendants' contention is without merit.

112



discrimination, and that Hispanics in Bexar County have not been 
successful in district court elections. The district court 
found, however, no evidence of a slating process and no use of 
racial appeals in Bexar County elections. None of these findings 
is clearly erroneous.

The district court effectively took judicial notice of the 
history of official discrimination against Hispanics and Blacks 
in Texas, finding that this history was "either well chronicled 
or undisputed." This history of official discrimination, the 
district court continued, "touched many aspects of the lives of 
minorities in [the nine target counties,] including their access 
to and participation in the democratic system governing this 
State. . . . "  (emphasis added). Neither the State Defendants nor 
the intervenors challenge this finding on appeal. Indeed, the 
State Defendants acknowledge the "long, shameful history of 
racial discrimination in Texas." Given this admission, we cannot 
conclude that the district court clearly erred in finding a 
history of discrimination touching the rights of Hispanics to 
participate in the Bexar County political process. See also 
Graves v. Barnes. 343 F. Supp. 704, 728 (W.D. Tex.) (three-judge 
court) (noting that "the Mexican-American population of Texas . .
. has historically suffered from, and continues to suffer from, 
the results and effects of invidious discrimination and treatment 
in the fields of education, employment, economics, health, 
politics, and others"), aff'd sub nom. Archer v. Smith. 409 U.S.

113



808 (1972), aff'd in part and rev'd in part sub nom. White v. 
Register, 412 U.S. 755 (1973) (Graves I).

The district court also found strong evidence of racially- 
polarized voting in Bexar County. Dr. Brischetto's statistical 
analysis of six district court elections from 1980 to 1988 
revealed that, in all but one of the races, as the percentage of 
Hispanic voters in a precinct increased, support for the Hispanic 
preferred candidate also increased. According to Dr.
Brischetto's statistical analysis, race explains 64% to 77% of 
the variance in voting in these six elections. The district 
court further observed that, in twenty-eight of the twenty-nine 
judicial elections involving Hispanic candidates in Bexar County, 
whites and Hispanics voted differently. Because the record 
supports the district court's finding of a strong relationship 
between race and voting patterns in Bexar County, we will not set 
that finding aside as being clearly erroneous.

Surveying the other factors relevant to the political 
landscape in Bexar County, the district court found that certain 
features of Texas' scheme of electing district court judges 
interact with the at-large nature of that election scheme to 
further enhance the opportunity for discrimination in Bexar 
County. In particular, the district court found that the large 
size of Bexar County, the majority vote requirements in primary 
elections, and the use of what amounts to a numbered-post system 
in the county contribute to the dilution of minority voting 
strength. The potential of such features to dilute minority

114



voting strength being well known, see supra Part II.B.l.c., we 
will not disturb the district court's finding with respect to 
this factor.

The district court further found that the Hispanic 
population in Bexar County--as well as minorities throughout 
Texas--continue to bear the effects of past discrimination in 
such areas as education and employment. This finding is amply 
supported by evidence introduced at trial: Over 73% of Bexar
County's Hispanic families have a yearly income below $20,000, 
while approximately 44% of Bexar County's white families have a 
yearly income below that level. Some 24.3% of Hispanic families 
in Bexar County-- compared to 5.4% of white families in that 
county--live below the poverty line. Moreover, only 5.2% of 
Bexar County Hispanics over the age of 25 are college graduates, 
while 24.9% of whites in Bexar County hold college degrees. And, 
only 11.8% of those in Bexar County's Hispanic work force hold 
managerial or professional positions, while 31.7% of those in 
Bexar County's white work force hold such positions. See 
Appendix IV. There is also evidence in the record indicating 
that (a) Hispanics in Bexar County register to vote at a 
substantially lower rate than members of other ethnic or racial 
groups, and (b) Hispanics, who constitute only 11.7% of Bexar 
County lawyers, are underrepresented in the pool of qualified 
district court candidates. Finally, the district court's finding 
is supported by decisions from this court acknowledging the 
lingering effects of discrimination on Hispanics in Texas. See

115



e.g.. Campos v. City of Bavtown. 840 F.2d at 1249-50; United 
States v. Texas Educ. Agency. 564 F.2d 162, 174 (5th Cir. 1977), 
cert, denied. 443 U.S. 915 (1979). We therefore conclude that 
the district court did not clearly err in finding that Hispanics 
in Bexar County continue to bear the socioeconomic effects of 
past discrimination.

In considering the extent to which Hispanics have been 
elected to office in Bexar County, the district court determined 
that Hispanic district court candidates are not very successful. 
This finding is plausible in light of the record, and therefore, 
it is not clearly erroneous. The record reveals that from 1981 
to 1989, while only 15.8% to 31.6% of the district judges sitting 
in Bexar County were Hispanics, Hispanics constituted some 46.61% 
of the total population in Bexar County. The record also reveals 
that Hispanics running for state district court judgeships won 
only one of six elections. Finally, the district court noted 
that, in the 1988 Republican primary for the 150th District 
Court, Arellano--an appointed Hispanic incumbent --was defeated by 
White, an Anglo candidate who had withdrawn from the primary and 
endorsed Arellano.

The State Defendants argue that "Hispanic judicial 
candidates in Bexar County have been very successful." They 
point specifically to the fact that, at the time of trial, there 
were five Hispanic district court judges in Bexar County. The 
problem with relying solely on the number of district court 
judges who are Hispanic, at least according to the Plaintiff's

116



expert Dr. Brischetto, is that it does not give a "complete" 
picture of what happens to a Hispanic candidate who runs against 
a white candidate. Several of the Hispanic judges that the State 
Defendants' point to, according to Dr. Brischetto, got their 
position without having to run in a contested election. Faced 
with this conflicting evidence, the district court was warranted 
in finding that Hispanics running for state district court 
judgeships in Bexar County are not very successful.36

With regard to the remaining totality of circumstances 
factors listed in the Senate Report, the district court found: 
no evidence of a slating organization in Bexar County or of overt 
or subtle racial appeals in Bexar County political campaigns. We 
conclude that these findings, which are not challenged, are not 
clearly erroneous.

(iii) Ultimate vote dilution finding. Based on these 
subsidiary findings, the district court found that, under the 
totality of the circumstances, Texas' current method of electing 
district judges operates in Bexar County to dilute the voting 
strength of Hispanic voters. This finding was based on a number 
of political and social realities in Bexar County, which together 
provide strong evidence that Hispanic voters in Bexar County 
currently have an unequal opportunity to participate in district 
court elections on account of their ethnic origin. Assuming the

36 As discussed above, see supra Part II.B.l.g., the 
relevance of the number of Hispanic lawyers in Bexar County is 
doubtful--especially given the extent to which Hispanics in Bexar 
County continue to bear the effects of discrimination in education.

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district court's ultimate vote dilution finding in Bexar County 
was based on the correct legal standards, see infra Parts IV.B.3. 
and IV.C., we conclude that the finding is not clearly erroneous.

b . Dallas County

Plaintiffs proceed on behalf of Black voters in Dallas 
County, where, at the time of trial, thirty-six (36) state 
district judges were chosen in county-wide elections.37 As with 
Bexar County, the district court found that the Plaintiffs 
satisfied all three factors of the Gingles threshold inquiry.
The district court also determined that the Plaintiffs had 
sufficiently demonstrated six of the totality of circumstances 
factors listed in the Senate Report. The district court finally 
determined, based on the totality of circumstances, that the 
Plaintiffs had demonstrated vote dilution in Dallas County. We 
conclude that the district court did not clearly err in making 
these findings.

(i) Gingles factors. With regard to the first Gingles 
factor, the district court determined that Blacks in Dallas 
County were sufficiently large and geographically compact to 
constitute a majority in seven single-member districts. This 
determination was based partly on evidence that, of the 1,106,757 
Dallas County citizens of voting age, 16% are Black. This 
determination was further based on evidence that Blacks primarily 
reside in the central and south central sections of Dallas

37 On September 1, 1989, the Texas Legislature created a 
thirty-seventh state district court in Dallas County.

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County. Because it is supported by the record, this 
determination is not clearly erroneous.

Moving to the second Gingles threshold factor, the district 
court found that Blacks in Dallas County are politically cohesive 
when voting for state district court judges. In making this 
finding, the district court primarily relied on a regression 
analysis performed by Dr. Engstrom, an expert employed by the 
Plaintiffs. The regression analysis of seven Dallas County 
district court elections involving a Black candidate indicated 
that "Blacks consistently gave more than 97% of their vote to 
their preferred candidate." Dr. Engstrom's statistical analysis 
was confirmed by Dr. Wiser, another expert employed by the 
Plaintiffs, who concluded that 98% of the vote in homogeneous 
Black precincts and 83% of the vote in precincts with a Black 
population of 50% to 90% went to the Black-preferred candidate. 
The district court correctly applied the legal standards for 
determining political cohesiveness, see supra Part II.A.2., and 
its finding that Black voters in Dallas County are politically 
cohesive is plausible in light of the record. Accordingly, the 
finding does not constitute clear error.

With regard to the third Gingles factor, the district court 
found, on the basis of the exhibits and testimony of Dr. Engstrom 
and Dr. Wiser, that the "white bloc vote in Dallas County is 
sufficiently strong to generally defeat the choice of the Black 
community." In the seven elections studied by Dr. Engstrom and 
Dr. Wiser--elections in which a Black district court candidate

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opposed a white district court candidate--some 61% to 71% of 
white voters in Dallas County voted against the candidate 
preferred by Black voters. Significantly, in five of the seven 
elections, the candidate preferred by Black voters was defeated. 
The highest percentage of white cross-over voting for the Black- 
preferred candidate was approximately 39%. Based on this 
evidence we are not left with a "definite and firm conviction" 
that the district court was mistaken in finding legally 
significant white bloc voting in Dallas County district judge 
elections.

(ii) Totality of circumstances factors. In analyzing the 
totality of the circumstances in Dallas County, the district 
court found: a history of official discrimination against Blacks
in Dallas County; racially polarized voting; the use of voting 
practices that enhance the opportunity for discrimination against 
Blacks; lingering effects of past discrimination in the Black 
population of Dallas County; the use of racial appeals in Dallas 
County judicial elections; and a lack of success by Black 
district court candidates in Dallas County. The district court 
refused to find, however, that the Republican Party in Dallas 
County operated as a white-dominant slating group.

We find no clear error in the district court's first finding 
under the totality of circumstances inquiry--namely, that the 
history of official discrimination in Texas "touched many aspects 
of the life of minorities . . . including their access to and
participation in the democratic system governing this State."

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The district court correctly recognized that the history of 
racial discrimination against Blacks in Texas is "either well 
chronicled or undisputed."3* Moreover, cases decided in this 
circuit reveal that Dallas County shares Texas' history of 
discrimination. As recently as 1970, an organization calling 
itself the "Dallas Committee for Responsible Government" employed 
racial campaign tactics in white precincts to defeat the 
candidates supported by Black voters. See Graves, 343 F. Supp. 
at 726-27. And during the late 1950's, not one member of the 
Dallas County delegation voted against certain segregation 
measures introduced in the Texas House of Representatives. Id. 
Thus, we think the district court was warranted in taking 
judicial notice of the fact that Blacks in Dallas County 
historically have been the victims of official discrimination.38 39

38 The following examples of official discrimination against
Blacks in Texas were cited by the court in Graves I. 343 F. Supp. 
at 725 n.15, n.16: a state statute prohibiting Blacks from
participating in the Democratic primary; a city ordinance 
segregating parks; a city ordinance making it unlawful for whites 
and Blacks to have sexual intercourse within the city limits; a 
statute prohibiting the adoption of white children by Blacks and 
Black children by whites; a criminal statute prohibiting fights 
or wrestling matches between whites and Blacks; and a Texas 
appellate court decision holding that the plaintiff stated a 
valid cause of action by alleging that his wife was wrongfully 
excluded from a passenger elevator set aside for whites and made 
to ride an elevator set aside for the use of Blacks.

39 On appeal, Judge Entz concedes that Dallas County and 
Texas "once had official discrimination against the voting rights 
of [B]lack voters." He seeks to minimize this past reality of 
the Dallas County political landscape, however, by noting that 
the days of official discrimination are "thankfully long in the 
past." Judge Entz also suggests that the district court did not 
find that the unfortunate history of official discrimination has 
any present day lingering effect on the ability of Blacks to 
participate in the political process in Dallas County. Finally,

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The district court also determined, based on Dr. Engstrom's 
homogeneous precinct and ecological regression analyses, that 
there is "a strong relationship between race and voting patterns 
in Dallas County." According to Dr. Engstrom's analyses, race 
explains at least 75% of the variance in voting in at least six 
of the seven elections studied. The State Defendants and Judge 
Entz do not dispute that "voters in Dallas County vote along 
racial lines. Rather, they argue that the raw statistics do not 
explain why Dallas County voters vote along racial lines. Having 
refused the invitation to redefine the concept of racially 
polarized voting by including a causation requirement, see supra 
note 7, we conclude that the district court correctly found that 
racially polarized voting exists in Dallas County.'"

Judge Entz points out that "there are certainly no present official impediments to [B]lack voting."
We reject Judge Entz's invitation to discount the history of 

official discrimination against Blacks in Dallas County. First, we think that Judge Entz overstates the remoteness of this 
official discrimination. The year 1970 is not, in our view,
"long in the past." Moreover, we disagree with Judge Entz's 
reading of the district court's opinion with respect to the 
effects of official discrimination. The district court expressly 
found that "the effect of past discrimination against Blacks . .
. is either well- chronicled or undisputed," thereby recognizing 
that past discrimination continues to hinder Blacks' ability to 
participate in the political process. Lastly, we note that Judge Entz's observation that there are no longer any official 
impediments to Black voting is beside the point. In amending 
Section 2, Congress indicated that it was concerned not only with 
overt prohibitions against casting a ballot, but also with the 
use of schemes that cancel out or minimize minority voting strength. See S. Rep. at 6.

40 Contrary to Judge Entz's suggestion, the district court 
did not reject this court's test for racially polarized voting.
As we have already explained, see supra Part II.B.l.b., the 
concept of racially polarized voting does not denote the tendency of citizens to vote for candidates of their own race. Rather,

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As with Bexar County, the district court found that certain 
features of Dallas County district court elections--namely, the 
use of large election districts, majority vote requirements in 
primary elections, and the use of a numbered-post system--enhance 
the possibility of vote dilution. Judge Entz challenges the 
district court's finding with regard to enhancement features, 
arguing (a) that Dallas County is not an unusually large election 
district, (b) that post-primary elections do not have a majority 
vote requirement, and (c) that, although a judicial candidate 
must run for a specifically numbered court, this requirement "is 
a reflection of the autonomy of the each court and its status in 
the true sense of the term as a single member judicial district." 
These challenges are without merit. First, with regard to the 
size of Dallas County, we note that district judges elected in 
Dallas County, with a population of 1.5 million, have a larger 
constituency than sixteen governors and thirty-two United States 
senators. Second, although we can agree that the district court 
did not find a majority vote requirement in post-primary 
elections, we must take into account the district court's finding 
of a majority vote requirement in primary elections. Contrary to

racially polarized voting denotes the tendency of whites and 
minorities to vote differently. Although the district court, at 
one point in its memorandum opinion, referred to a Fifth Circuit 
decision defining racially polarized voting as the tendency of a 
group to vote for candidates of a particular race, the district 
court also noted, at the same point in the opinion, that under 
Gingles. racially polarized voting exists when whites and 
minorities vote differently. Moreover, in its county-by-county 
analysis, the district court clearly applied the correct legal 
standard in determining the existence and extent of racially 
polarized voting.

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Judge Entz's suggestion, the absence of a majority vote 
requirement in general elections does not remove the dilutive 
potential of such a requirement in primary elections. See supra 
Part II.B.l.c. Third, the justification offered for the 
existence of a numbered post system in Dallas County undercuts 
neither the existence of such a system nor its potential to 
dilute. See id. Because the district court's finding of 
enhancement features in Dallas County is amply supported by the 
record, it is not clearly erroneous.

The district court further found that Blacks in Dallas 
County continue to bear the effects of discrimination in 
education and employment. The district court specifically stated 
that "[t]he effect of past discrimination against Blacks and 
Hispanics in areas such as education, employment and health in 
most of the Counties in question is either well chronicled or 
undisputed." With respect to Dallas County, this finding was 
plausible in light of the record. As the statistics in Appendix, 
IV demonstrate, Blacks in Dallas County lag unreasonably behind 
whites in terms of income, education, and professional status. 
Conversely, Blacks are disproportionately represented among those 
who live below the poverty line: 21.2% of Black families in
Dallas County, while only 3.9% of white families, live below the 
poverty line. Moreover, the record reveals that, while Blacks 
constitute some 16% of Dallas County's voting age population, 
Black lawyers make up at most 2.2% of the lawyers residing in 
Dallas County. On the basis of this uncontroverted evidence, we

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conclude that the district court did not clearly err in finding 
that racial discrimination continues to affect the lives of 
Blacks in Dallas County.41

41 Judge Higginbotham suggests in his dissent that the 
history and lingering effects of discrimination against Blacks 
and Hispanics are entitled to no weight in the totality of circumstances analysis in any of the counties, because there was 
no evidence-- other than evidence of low voter registration rates 
among Hispanics--of depressed political participation by those 
minority groups in the political process. Dissenting Op. at 18- 
19. Thus, he implies that depressed political participation may 
only be shown by low voter registration or low voter turnout 
rates.Initially, we note that the district court, in addition to 
finding that Blacks and Hispanics continue to bear the effects of 
discrimination in education and employment, specifically found 
that "the continual effects of historical discrimination hinder[] 
the ability of minorities to participate in the political 
process."We also note that this is not an issue that has been 
seriously pursued by the parties on appeal. The State Defendants 
do not raise this issue at all. Judge Entz devotes two sentences 
in each of his briefs to the argument that, insofar as Dallas 
County is concerned, the Plaintiffs offered "no testimony showing 
that, at this date, [Blacks'] lower [socioeconomic] status is 
directly a result of prior discrimination or that it hinders the 
ability of blacks to participate in the political process."
Judge Entz candidly concedes in a footnote that "Dr. Erischetto 
offered such testimony with respect to other counties." Judge 
Wood devotes a fragment of one sentence to this issue on appeal, 
arguing only that the Plaintiffs produced "no evidence that 
lingering effects of discrimination hinder the ability of blacks 
to participate effectively in the political process in Harris 
County."

In addition, we note that, to the extent that the issue has 
even been raised with respect to Dallas and Harris counties, it 
is without merit. While evidence of depressed voter registration 
or turnout rates is one indicator of depressed political 
participation, it is by no means the only indicator. To say that 
there is no evidence in the record that "the level of black 
participation in politics is depressed," is to ignore the 
evidence repeatedly emphasized by Judge Entz, Judge Woods, and 
Judge Higginbotham with respect to the paucity of minority 
lawyers in each of the counties at issue. Before minorities can 
fully participate in district court elections, they must be 
qualified to run for such offices. And, to be qualified to run 
for a district court position, minorities must attend and 
graduate from law school, a privilege which was not equally

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The district court also found--significantly--that in two 
recent Dallas County elections, white candidates made racial 
appeals. In a 1986 district attorney election between John

accorded to Blacks and Hispanics in Texas until at least 1950.
See Sweatt v. Painter. 339 U.S. 629 (1950). Thus, we conclude 
that the evidence indicating that Blacks constitute, at most,
2.2% of the lawyers in Dallas County and 3.8% of the lawyers in 
Harris County, when viewed in conjunction with the district 
court's finding that the paucity of minority lawyers is "due in 
part to historical discrimination," supports the district court's 
conclusion about "depressed political participation" by Blacks.

The district court's conclusion that the lingering effects 
of discrimination continue to hinder minority participation in 
the political process is further supported by Dr. Brischetto's 
expert testimony. Dr Brischetto specifically testified with 
respect to all counties in which minorities continue to suffer 
the lingering socioeconomic effects of discrimination:

Well, certainly having less of these socioeconomic 
resources or characteristics to draw on, we find that 
minority voters will participate less in the election 
system. Education is an important resource. For 
example, it enables people to feel like they are more a part of and take part in the election system to a 
greater extent. Lacking that they participate less.
So it is important, it has an effect certainly on their 
participation when they are subordinate status in the stratification system.
Finally, there is also evidence suggesting that, because of 

the lingering socioeconomic effects of discrimination, Blacks and 
Hispanics are unable to successfully mount a county-wide 
campaign. Several witnesses expressed their concern that 
minority candidates, because they generally do not have the 
financial resources to mount a county-wide campaign, are hindered 
in their ability to fully participate in the current system of 
electing judges. In Harris County, for example, Bonnie Fitch 
stated that Black district court candidates usually find it 
harder to raise money. This concern was echoed by Adam Serrata 
in Bexar County. He stated that "Anglos generally can raise more 
money than minority candidates but it is not as expens[ive] to 
run in a single member district election as it is in a countywide 
election." Jim Coronado also testified that the problem 
minorities have in mounting a successful, county-wide district 
court campaign arises from the facts that "[i]t costs a bunch of 
money" to mount such a campaign and that minority candidates 
generally "don't have the financial resources to get out there and do that."

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Vance, a white candidate, and Royce West, a Black candidate, Mr. 
Vance inserted a picture of his Black opponent in campaign 
advertisements. In the 1988 Republican district court primary 
between Larry Baraka, a Black candidate, and Brook Busby, a white 
candidate, Ms. Busby was less subtle. She distributed campaign 
literature that referred to Mr. Baraka as a "Black Muslim."

Judge Entz challenges the district court's finding of racial 
appeals in Dallas County as being clearly erroneous. Judge Entz 
argues specifically that judicial elections in Dallas County 
"were not characterized by overt or subtle racial appeals" and 
that "the only incident the trial court found to be a racial 
appeal in a judicial race was actually a reference to the 
candidate's religion." We disagree. The district court did not 
clearly err in finding that Ms. Busby's reference to her opponent 
as a "Black Muslim" constituted more than a reference to Mr. 
Baraka's religion.c The district court's finding with respect 
to Mr. .Vance's campaign literature is also supported by the

The dissent, like Judge Entz, attempts to minimize this 
racial appeal by pointing out that it did not work for Ms. Busby, 
who lost the race to Mr. Baraka. Dissenting Op. at 6. While we 
recognize that the racial appeal was perhaps unsuccessful in this 
case, it nonetheless constitutes "some evidence" that racial 
politics are at work in Dallas County judicial elections.
Moreover, the Senate Report does not instruct courts to consider 
whether candidates have won by using racial campaign appeals. 
Instead, the Senate Report instructs courts to consider "whether 
political campaigns have been characterized by overt or subtle 
racial appeals." S. Rep. at 29. Finally, although we hold that 
the district court correctly considered this racial appeal in the 
totality of the circumstances in Dallas County judicial 
elections, neither the district court nor this court would have 
been willing--contrary to the dissent's disingenuous suggestion 
otherwise-- to change the structure of all of Dallas County courts 
based solely on one racial campaign appeal.

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record. The district court determined that Vance's campaign 
literature sought to identify his opponent by race only after 
hearing testimony and reviewing the evidence in question. In 
view of this evidence, we will not set aside as clearly erroneous 
the district court's finding that Dallas County judicial 
elections have been tainted by racial appeals.

As for the success of Black candidates in Dallas County, the 
district court was confronted with conflicting evidence. At the 
time of trial Black district court candidates had opposed white 
district court candidates only seven times in Dallas County 
general elections, and the Black candidate won two of the seven 
elections. In both of those elections, however, the Black 
candidate was not the candidate preferred by Blacks. The record 
also reveals that, from 1980 to 1989, the percentage of Black 
judges in Dallas County ranged from 0.0% to 8.3%; by contrast, 
Blacks constituted 18.5% of Dallas County's total population 
during this time period. Faced with this conflicting evidence 
about the success of Black district court candidates in Dallas 
County, the district court found Black candidates to be 
relatively unsuccessful.

Judge Entz challenges the district court's finding with 
respect to the success of Black candidates in Dallas County on 
two grounds. First, he argues that the baseline for determining 
minority candidate success is not the total minority population, 
but the number of minority lawyers in the county. He also 
contends that the district court should have considered the

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success of Black candidates in primary elections. We reject both 
of these challenges and hold that the district court's finding on 
this totality of circumstances factor is not clearly erroneous.

We have already explained our serious reservations about 
gauging minority electoral success under the qualified applicant 
pool approach. See supra Part II.B.l.g. Such an approach would, 
in our view, "allow voting rights cases to be defeated at the 
outset by the very barriers to political participation that 
Congress sought to remove." Id. (quoting Westweao I. 872 F.2d at 
1209). Moreover, the district court correctly recognized that, 
"even if there is some relationship between the low number of 
minority judges and the number of eligible minority lawyers, that 
fact does not explain why well-qualified eligible minority 
lawyers lose judicial elections." Accordingly, we conclude that 
the district court correctly refused to compare the proportion of 
Blacks on the Dallas County district court bench with the 
proportion of Black lawyers in the county.

Judge Entz's contention that the district court should have 
considered the success of Black candidates in primary elections 
is similarly without merit.- The Senate Report instructs courts 
to consider "the extent to which members of the minority group 
have been elected to public office in the jurisdiction. 11 S. Rep. 
at 29 (emphasis added). The report does not instruct courts to 
consider the extent to which members of the minority group have 
won primary elections. Thus, while it may be true that, in the 
nine contested primary and general district court elections with

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Black candidates, the Black candidate won four of those 
elections, this is not the success rate with which Section 2 is 
concerned. Rather, under Section 2 it is significant that (a) no 
Black district court candidate who has received any measurable 
support from the Black community has ever been elected in Dallas 
County, and (b) Blacks are significantly underrepresented on the 
Dallas County district court bench in comparison to their 
proportion in the Dallas County population.

Therefore, the district court did not clearly err in finding 
that Black district court candidates have been relatively 
unsuccessful in Dallas County. As we have explained, see supra 
Part II.B.l.g., in considering the success of minority 
candidates, courts should make a relative, cautious inquiry. 
Moreover, the election of a few minority candidates, which is all 
that has been demonstrated in Dallas County, should not be 
allowed to foreclose a vote dilution claim. See id.

With regard to the other totality of circumstances factors, 
the district court rejected testimony offered by the Plaintiffs 
depicting the Republican Party in Dallas County as a white- 
dominant slating group. The Plaintiffs do not challenge this 
finding on appeal.

(iii) Ultimate vote dilution finding. Based on these 
findings, the district court concluded that, under the totality 
of the circumstances, Texas' method of electing district court 
judges in Dallas county operates to dilute Black voting strength. 
The district court's vote dilution finding with regard to Dallas

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County is supported by strong evidence--evidence raising an 
inference that the at-large method of electing district judges in 
Dallas County interacts with the current and past racial climate 
and voting behavior, such that Blacks have an unequal opportunity 
to participate in Dallas County district court elections. The 
district court's ultimate vote dilution finding in Dallas County, 
if based on the correct legal standards, see infra Parts IV.B.3. 
and IV.C., is not clearly erroneous.

c. Ector County

In Ector County, where the Plaintiffs proceed on behalf of 
Black and Hispanic voters combined, there are four (4) state 
district judges elected in county-wide elections. In accordance 
with the law of this circuit, see Campos v. City of Baytown. 840 
F.2d at 1244 (allowing Blacks and Hispanics to proceed as one 
minority group under Section 2),43 the district court found that

43 The impetus for two minority groups seeking to proceed as 
a coalition under Section 2 is apparently their inability, as 
separate groups, to overcome the first Gingles threshold factor. 
Thus, in locations where neither Blacks, by themselves, or 
Hispanics, by themselves, are sufficiently large and 
geographically compact to constitute a majority of the voting age 
population in a single-member district, Blacks and Hispanics 
combined may be able to satisfy this threshold requirement.

We recognize that the procedure of allowing Blacks and 
Hispanics to proceed as a "coalition" minority group in a Section 
2 claim is fraught with risks. See generally Katharine I. Butler 
and Richard Murray, Minority Vote Dilution Suites and the Problem of Two Minority Groups: Can a "Rainbow Coalition" Claim the
Protection of the Voting Rights Act?. 21 Pac. L. J. 619 (1990); 
Rick G. Strange, Application of Voting Rights Act to Communities 
Containing Two or More Minority Groups--When Is the Whole Greater 
Than the Sum of the Parts?. 20 Tex. Tech L. Rev. 95 (1989).
First, there is a risk that members of one of the minority groups 
will increase their opportunity to participate in the political 
process at the expense of members of the other minority group. 
There is also the risk of running afoul of Congress' intent in

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Black and Hispanic voters combined satisfied the three Gingles 
factors. The district court further found that the Plaintiffs 
demonstrated five relevant factors under the totality of 
circumstances inquiry. Finally, the district court determined 
that Texas' method of electing district court judges operates to 
dilute Hispanic and Black voting strength in Ector County. As 
explained below, none of the district court's subsidiary findings 
with regard to Ector County is clearly erroneous.

(i) Gingles factors. The district court found that 
Hispanic and Black voters in Ector County were, as a group, 
sufficiently large and geographically compact to constitute a 
majority in one single member district. The district court in 
part based its finding on evidence that Ector County, with a 
total voting age population of 79,516, has a Black voting age 
population of 3,255 (4.1%) and a Hispanic voting age population

amending Section 2. After all, "[t]he Voting Rights Act purpose 
was to eliminate racial discrimination--not to foster particular 
political coalitions." Butler & Murray, supra. at 648. In view 
of these risks, we note that minority groups should be allowed to 
proceed as a coalition under Section 2 only after the district 
court is satisfied that the risks we have discussed are not 
present in the community at issue.

On appeal, no party takes issue with the legitimacy of 
allowing Blacks and Hispanics to proceed as a coalition under 
Section 2. Nor does any party argue that the interests of one 
minority group have been advanced at the expense of another. 
Instead, various parties level county-specific challenges to the 
district court's finding that Hispanics and Blacks are 
politically cohesive. We address such challenges, in the 
counties where they are made, in our discussion of the district 
court's finding of political cohesiveness.

Finally, we note that no party asked the district court to 
make a finding that Blacks and Hispanics were politically 
cohesive in any county other than the three counties where the 
Plaintiffs proceeded on behalf of Blacks and Hispanics.

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of 14,147 (17.8%). The combined voting age population of Blacks 
and Hispanics in Ector County, according to evidence introduced 
at trial, is 17,402, or 21.9% of the total voting age population. 
The district court further relied on evidence indicating that, 
because minority residents in Ector County are concentrated in 
the southwest section of Ector County, it would be possible to 
draw one single-member district in which voting age minority 
residents constitute a majority. Such a single-member district 
could be created, the district court determined, even if non­
citizen voting-age Hispanics are eliminated from the estimates of 
the voting age populations. Finally, the district court relied 
on the anecdotal testimony of Lawrence Barber, an attorney who 
has practiced law in Ector and Midland Counties for many years. 
Barber testified that, n[i]n Ector County, there are geographic 
or residential areas that are identifiably minority, in other 
words where most of the Blacks and Hispanics live." Because the 
district court's finding on this first Gingles factor is 
plausible in light of the record, we conclude that it is not 
clearly erroneous.

With regard to the second Gingles factor, the district court 
found that "Blacks and Hispanics are cohesive as a group in Ector 
County judicial elections." Because no Black or Hispanic has 
ever run for a district court seat in Ector County, the district 
court focused on the results of four exogenous judicial elections 
pairing Hispanic candidates against white candidates. A multiple 
regression analysis of these elections demonstrated that Blacks

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and Hispanics voted together. Moreover, in three of the four 
contests large majorities of Blacks and Hispanics voted together 
for the Hispanic candidate. The district court's finding of 
political cohesion, which is supported by the record, is not 
clearly erroneous.

The district court also determined that the white bloc vote 
in Ector County is legally significant. In all four of the 
appellate judicial elections pairing a Hispanic candidate against 
a white candidate, substantial majorities of whites voted against 
the Hispanic candidate. And in three of the four elections, the 
Hispanic candidate lost. The State Defendants' expert, Dr.
Taebel, analyzed five general judicial elections that did not 
pair a white against a minority candidate. Minority and white 
voters voted differently in each of these elections, with the 
minority preferred candidate losing three times. Faced with this 
conflicting evidence, the district court gave more weight to the 
elections pitting minority candidates against white candidates. 
Because we have recognized that such elections are generally more 
probative in vote dilution cases, we will not set aside the 
district court's finding of- legally significant white bloc voting 
as clearly erroneous.

(ii) Totality of circumstances factors. The district court 
found that Plaintiffs had demonstrated several factors that are 
relevant to the totality of circumstances analysis: a history of
discrimination against Blacks and Hispanics in Ector County; 
racially polarized voting in Ector County judicial elections;

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voting practices that enhance the opportunity for discrimination; 
lingering socioeconomic effects of past discrimination; and a 
lack of success by minority judicial candidates in Ector County. 
We address each of these findings in turn and conclude that none 
is clearly erroneous.

The district court found that Ector County shares Texas' 
history of discrimination against Blacks and Hispanics. The 
State Defendants--wisely--do not challenge this finding. As 
recently as 1982, Ector County was not only failing to dismantle 
its dual school system, but also was intentionally increasing the 
segregation of Black and Hispanic students from white students in 
its county-wide school district. See United States v. Crucial, 
722 F.2d 1182, 1184-85 (5th Cir. 1983).

Relying on ecological regression and homogeneous precinct 
analyses performed by Dr. Brischetto on the four appellate 
judicial contests pairing a white and Hispanic candidate, the 
district court found.a "strong relationship between 
race/ethnicity and voting patterns." According to Dr.
Brischetto's analysis, there was a 78% correlation between race 
and voting patterns, with race explaining at least 61% of the 
variance in such patterns. This finding is further supported by 
the elections analyzed by Dr. Taebel. In the five general 
judicial elections that did not involve a white candidate running 
against a minority candidate, minorities and whites voted 
differently. The district court's finding of strong racially 
polarized voting is therefore plausible in light of the record.

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The district court also found that Ector County's majority 
vote requirement in primaries and its requirement that judges run 
for a designated post enhance the opportunity for discrimination 
against minorities. Because of the relatively small number of 
people in Ector County, however, the district court refused to 
find that Ector County used "unusually large election districts." 
These findings are not challenged on appeal, and we will not set 
them aside as being clearly erroneous.

The district court further considered the extent to which 
Blacks and Hispanics in Ector County bear the effects of 
discrimination in such areas as education, employment, and 
health. The evidence introduced by the Plaintiffs on this 
totality of circumstances factor is significant: Some 73% of
Ector County's Black families and some 67.6% of Ector County's 
Hispanic families have a yearly income below $20,000. In 
comparison, only 40% of white families in Ector County have a 
yearly income level below $20,000. With regard to poverty line 
statistics, Plaintiffs introduced evidence showing that 30.6% of 
Black families and 18.3% of Hispanic families--as compared with 
5.0% of white families--live below the poverty line. Only 6.1% 
of Blacks and 2.8% of Hispanics over the age of 25 in Ector 
County are college graduates. The comparable figure for whites 
in Ector County is 14.2%. Finally, only 10.6% of working Blacks 
and 6.9% of working Hispanics in Ector County hold managerial or 
professional positions, while 21.3% of working whites hold such 
positions. See Appendix IV. On the basis of this evidence, as

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well as evidence indicating that only six Black and Hispanic 
attorneys reside in Ector County, we conclude that the district 
court did not clearly err in finding that racial discrimination 
continues to affect the lives of minorities in Ector County, 
"including their access to and participation in the democratic 
system governing this State."

In analyzing the extent to which minority candidates have 
been elected to office in Ector County, the district court was 
again confronted with a sparsity of data. As noted above, no 
Black or Hispanic has ever run for a district court seat in Ector 
County. Nonetheless, the district court focused on the fact 
that, in the four other Ector County judicial elections pairing 
Hispanic candidates against white candidates, the Hispanic 
candidate won only once. Given this evidence, the district court 
was warranted in finding that minority candidates in Ector County 
are relatively unsuccessful in running for judicial office.

Concerning the other totality of circumstances factors, the 
district court found no evidence of a white-dominated candidate 
slating process in Ector County and no evidence of overt or 
subtle appeals to race in Ector County judicial elections.
Neither of these findings is clearly erroneous.

(iii) Ultimate vote dilution finding. Based on the 
evidence discussed above, the district court found that Texas' 
method of electing district judges operates in Ector County to 
diluted the voting strength of Blacks and Hispanics. This 
ultimate vote dilution finding is amply supported by the

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structural, behavioral, and racial, features of Ector County's 
political landscape. Assuming this finding was based on the 
appropriate legal standards, see infra Parts IV.B.3. and IV.C., 
we conclude that it is not clearly erroneous.

d. Harris County

Harris County, with a population of some 2,409,544, is the 
largest county involved in this lawsuit. With a voting age 
population of 1,685,024, Harris County elects fifty-nine (59) 
state district judges in county-wide elections. Proceeding on 
behalf of Black voters in the county, Plaintiffs offered evidence 
that, in the district court's view, was sufficient to satisfy the 
three Gingles factors. The district court also found, on the 
basis of the Plaintiffs' evidence, that five of the totality of 
circumstances factors are present in Harris County. After 
considering the totality of the circumstances surrounding Harris 
County district court elections, the district court found that 
the Plaintiffs had demonstrated vote dilution. For the following 
reasons, we conclude that the district court's findings with 
regard to Harris County are not clearly erroneous.

(i) Gingles factors. The district court first determined, 
in accordance with the proper legal standards, that Blacks in 
Harris County are sufficiently large and geographically compact 
to constitute a majority in at least one single-member district. 
This finding was based on evidence that Blacks constitute 18.2% 
of Harris County's voting age population, that Blacks primarily 
reside in the north central, central, and south central sections

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of Harris County, and that nine single-member districts could be 
drawn in which Blacks constituted a majority of the voting age 
population. Because this finding is supported by the record, we 
conclude that it is not clearly erroneous.44

To establish the second and third Gingles factors, the 
Plaintiffs offered the testimony of Dr. Engstrom, who analyzed 
seventeen district court races between 1980 and 1988 pairing 
white and Black candidates. To determine the racial composition 
of the various precincts in Harris County, Dr. Engstrom used 1980 
Census figures of total Black population by precinct for 1980 
races. For his analysis of 1982, 1984, 1986, and 1988 election 
results, however, Dr. Engstrom used precinct voter registration 
estimates provided by Dr. Richard Murray, a non-testifying 
expert.45

44 Judge Wood challenges the district court's finding with 
regard to the first Gingles factor. In particular, she argues 
that it is mathematically impossible to draw nine single member 
districts (or 22% of the total number of districts in Harris 
County) in which voting age Blacks, who constitute only 18.2% of 
the voting age population, are a majority. The problem with 
Judge Wood's argument is that, to satisfy the first Gingle.s 
factor, the minority group must only demonstrate that "it is 
sufficiently large and geographically compact to constitute a 
majority in a single member district." 478 U.S. at 50 (emphasis 
added). Thus, as long as Blacks in Harris County are sufficiently large and geographically compact to constitute a 
majority in at least one single member district, the first Gingles factor is satisfied. Because Judge Wood does not dispute 
that Blacks could constitute a majority in at least one district 
in Harris County, the district court's finding with regard to 
this factor is not clearly erroneous.

45 Judge Wood attacks Dr. Engstrom's reliance on Dr. Murray's 
voter registration estimates. She points out that Dr. Murray did 
not authenticate the estimates and that Dr. Engstrom only 
performed a limited check on the estimates. Thus, she reasons, it was error for Dr. Engstrom and the district court to rely on

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The district court, relying on Dr. Engstrom's statistical 
analysis and on anecdotal evidence, found that Blacks in Harris 
County are politically cohesive. Based on a statistical analysis 
of seventeen district court general elections in Harris County in 
which a Black candidate ran against a white candidate, Dr. 
Engstrom testified that, in sixteen of these seventeen elections, 
over 96% of Black voters cast ballots for the same candidates.
The Plaintiffs also offered the testimony of Sheila Jackson Lee, 
a Black resident of Harris County for approximately eleven years. 
Based on her experience--and particularly her unsuccessful bids 
in judicial elections in Harris County--Lee testified that Blacks 
in Harris County are politically cohesive in judicial elections. 
The district court's finding that Blacks in Harris County are 
politically cohesive is amply supported by the record, and 
accordingly, we will not disturb it on appeal.

Dr. Murray's voter registration estimates. We disagree.
Judge Wood's argument is that, under Rule 703 of the Federal 

Rules of Evidence, the data relied on by Dr. Engstrom is not "of 
a type reasonably relied upon by experts" analyzing voting 
patterns. At trial, however, Dr. Engstrom testified that 
estimates of the ethnic makeup of precincts, such as the ones 
provided by Dr. Murray, are-of a type customarily relied on by 
voting rights experts. Dr. Engstrom further testified that, when 
he did perform a limited check on the estimates provided by Dr. 
Murray, the data was reliable. The district court apparently 
credited Dr. Engstrom's testimony and found the data set used in 
his analysis of Harris County to be reliable. Moreover, the 
district court correctly noted that any imperfections in the 
estimates provided by Dr. Murray went to the weight of Dr. 
Engstrom's testimony and not to its admissibility. In any event, 
we hold that the district court did not abuse its discretion in 
allowing Dr. Engstrom to testify about his analysis of election 
results. We also hold that the district court did not clearly 
err in relying on Dr. Engstrom's testimony concerning the second and third Gingles factors.

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As for the third Ginoles threshold factor, the district
court determined that "the white bloc vote in Harris County is 
sufficiently strong to generally defeat the choice of the Black 
community." In making this determination, the district court 
relied primarily on Dr. Engstrom's analysis of the seventeen 
district court elections in which Black candidates opposed white 
candidates. This analysis revealed that (a) in sixteen of the 
seventeen elections, between 61% and 71% of white voters voted 
against the candidate preferred by Black voters, and (b) in 
fifteen of the seventeen elections, the candidate preferred by 
Black voters was defeated. The district court also relied on 
testimony from several unsuccessful Black district court 
candidates, who attributed their losses to their inability to 
attract enough white support. Because the district court applied 
the correct legal standard for determining the existence of 
legally significant white bloc voting, and because its finding is 
plausible in light of the evidence before it, we conclude that 
its finding is not clearly erroneous.

Pointing to elections in which Hispanic judicial candidates 
defeated white candidatesthe State Defendants argue that the 
district court's finding of legally significant white bloc voting 
is not plausible in light of the record. Citing our decision in 
Campos v. City of Baytown, they contend that, because Blacks and 
Hispanics are politically cohesive in Harris County judicial 
elections, the district court was required to specifically 
consider and give equal weight to elections pairing white and

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Hispanic candidates in determining whether white voters will 
usually defeat the preferred candidate of Black voters. The 
problem with their argument is that it was not properly raised 
before the district court and therefore is not properly before us 
on appeal. Their argument requires a fact finding that Blacks 
and Hispanics in Harris County are politically cohesive. Yet, 
neither the State Defendants nor Judge Wood proposed any such 
finding with respect to Harris County. Indeed, the record in 
this case reveals that Judge Wood proposed a fact finding, one 
which was adopted by the State Defendants, that "Blacks and 
Hispanics together in Harris County do not constitute a 
politically cohesive minority group." (emphasis added). Thus, 
because the State Defendants failed to present their fact-based 
argument to the district court, we cannot fault the district 
court for refusing to specifically consider and give equal weight 
to elections pitting Hispanic judicial candidates against white 
judicial candidates in Harris County.

(ii) Totality of circumstances factors. Moving to the 
totality of the circumstances surrounding Harris County's 
political process, the district court first determined that 
Blacks in Harris County--like Blacks throughout Texas--were 
historically the victims of official discrimination that touched 
their rights to participate in the political process. Neither 
the State Defendants nor Judge Wood challenges this finding. 
Accordingly, we will not set it aside as clearly erroneous.

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The district court also determined that Blacks and whites 
vote differently--which under the controlling law amounts to a 
finding of racially polarized voting. See supra Part II.B.l.b. 
This finding is amply supported by the Plaintiffs' evidence that, 
in sixteen of the seventeen races studied by Dr. Engstrom, over 
96% of Black voters cast ballots for the same candidates, while 
between 61% and 71% of white voters voted against those same 
candidates. According to Dr. Engstrom's analysis of those 
elections, there was a 79% correlation between race and voting 
patterns, with race explaining 62% of the variance in such voting 
patterns. This finding is further supported by testimony from 
Dr. Taebel, the State Defendants' expert. Dr. Taebel studied 
twenty-three district court elections in which minorities opposed 
white candidates, and in all of these elections, Dr. Taebel 
testified, Blacks and whites voted differently. We conclude, 
based on this evidence, that the district court's finding of 
racially polarized voting is not clearly erroneous.

With regard to voting practices that enhance the opportunity 
for discrimination against minorities, the district court found 
three such practices operated in Harris County: the use of a
numbered-post system, the use of a majority vote requirement in 
primary elections, and the use of unusually large election 
districts. The size of Harris County is particularly relevant. 
The evidence shows that every judge in Harris County--with its 
population of nearly 2.5 million--has a larger constituency than 
twenty governors and forty United States Senators. Because the

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district court's finding of enhancement features is plausible in 
light of the record, we conclude that it is not clearly 
erroneous.

Contrary to Judge Wood's suggestion, the district court also 
found that the effects of Texas' history of severe racial 
discrimination are readily apparent in and continue to hinder 
Harris County's Black population. The district court expressly 
found that "[t]he effect of past discrimination against Blacks 
and Hispanics in areas such as education, employment and health 
in most of the Counties in question is either well chronicled or 
undisputed." This finding is amply supported by the evidence, 
which shows that some 62% of Black families in Harris County have 
a yearly income below $20,000, in comparison to 28.2% of white 
families. The evidence introduced at trial also reveals that 
19.5% of Black families--as compared to 3.5% of white families-- 
live below the poverty line in Harris County. In addition, only 
11.7% of Harris County Blacks over the age of twenty-five are 
college graduates, while 28.0% of whites over the age of twenty- 
five have college degrees. The evidence at trial further 
demonstrates that, while 13.1% of the members in Harris County's 
Black work force hold managerial or professional positions, 30.4% 
of those in Harris County's white work force hold such positions. 
See Appendix IV. Finally, evidence introduced by the State 
Defendants indicates that Black lawyers, who make up at most 3.8% 
of the lawyers in Harris County, are significantly 
underrepresented in the pool of qualified district court

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candidates. On the basis of this uncontroverted evidence, we 
conclude that the district court did not clearly err in finding 
that Harris County Blacks continue to bear the effects of racial 
discrimination in education and employment--effects which hinder 
their full participation in the political process.

In considering the extent to which Blacks have been elected 
to office in Harris County, the district court found that Black 
district court candidates had been relatively unsuccessful. The 
district court relied primarily on the low success rate of Black 
candidates in the seventeen elections in which Black district 
court candidates opposed white district court candidates. As 
noted above, the Black district court candidate only won two of 
these elections. The district court's finding is also supported 
by evidence demonstrating that, since 1981, Blacks have occupied- 
-at most--three of the fifty-nine district court seats in Harris 
County (5.1%). By comparison, Blacks constitute 19.7% of Harris 
County's total population. Judge Wood challenges the district 
court's finding on three grounds.

First, pointing to the "qualified applicant pool" of Black 
lawyers in Harris County, Judge Wood maintains that Black 
candidates in Harris County have been successful. In particular, 
she notes that, while Blacks constitute only 3.8% of the lawyers 
qualified to run for state district judge in Harris County,
Blacks constitute 5.1% of the district judges in Harris County. 
Thus, she argues that "Blacks are overrepresented on the bench, 
not underrepresented." We disagree. As discussed supra Part

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II.B.l.g., it would be perverse to measure the success of Black 
candidates by referring to the pool of Black lawyers, especially 
when the paucity of Black lawyers "is a likely result of a 
racially discriminatory system." (quoting McMillan v. Escambia. 
748 F.2d at 1045). Accordingly, we hold that the district court 
correctly refused to measure minority candidate success in Harris 
County by referring to the qualified applicant pool of eligible 
Black lawyers.

Judge Wood also argues that, when uncontested elections 
involving Black candidates are taken into account, the success of 
minority candidates drastically improves. Since 1978, however, 
Judge Wood can point to only three uncontested races in which 
Black district court candidates prevailed. Given the low number 
of instances in which a Black candidate has been elected in an 
uncontested district court race, we cannot fault the district 
court for considering the success of minority candidates in the 
more likely scenario of a contested election. In any event, we 
cannot say that the three uncontested elections in Harris County 
involving Black candidates renders erroneous the district court's 
conclusion that, as a general rule, Blacks are unsuccessful in 
their attempts to be elected to district court judgeships.

Finally, Judge Wood challenges the district court's refusal 
to consider two elections from 1978 in which Black candidates won 
seats on the Harris County district court bench. We note that it 
is not at all clear that the district court refused to consider 
these races. In its memorandum opinion, the district court

146



merely cites the fact that, since 1980, only two of seventeen 
Blacks running for district judge prevailed. Moreover, the 
district court could reasonably choose to rely on elections since 
1980 for determining the success of Black candidates in Harris 
County.

Thus, we conclude that the district court did not clearly 
err in finding that Black district court candidates have been 
relatively unsuccessful. The district court relied on the 
appropriate measures of Black candidate success --namely, (a) the
success rate of Black candidates when they run against white 
candidates, and (b) the ratio of Black district judges to total 
Black population. These measures indicated that Black district 
court candidates generally lost in contested elections and that 
Blacks are underrepresented on the Harris County district court 
bench. In view of this evidence, we are not left with the 
definite and firm conviction that the district court was mistaken 
in finding a lack of success by Black district court candidates 
in Harris County.

The district court found no evidence of any slating process 
and no evidence of racial appeals in Harris County judicial 
elections. Neither of these findings is challenged on appeal as 
being clearly erroneous.

(iii) Ultimate vote dilution finding. Based on these 
subsidiary findings, the district court found that the total 
circumstances surrounding Harris County elections operate to 
dilute the voting strength of Blacks. Again, this finding is

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strongly supported by the evidence of racially polarized voting, 
the lack of success by Blacks running for district court seats, 
the history of discrimination against Blacks in Harris County, 
and the extent to which Blacks continue to suffer the effects of 
past discrimination. Again, the district court's finding, if 
based on the appropriate legal standards, see infra Parts IV.B.3. 
and IV.C., is not clearly erroneous.

e. Jefferson County

In Jefferson County, where (8) state district court judges 
are elected in county-wide elections, the Plaintiffs proceed only 
on behalf of Black voters. The district court found that 
Plaintiffs established each of the three Gingles threshold 
factors and five relevant factors under the totality of 
circumstances inquiry. The district court further found, on the 
basis of these factors, that Texas' method of electing district 
court judges operates to dilute Black voting strength in 
Jefferson County. We conclude that the di-strict court's findings 
in Jefferson County, being amply supported by the record, are not 
clearly erroneous.

(i) Gingles factors. With regard to the first Gingles 
factor, the district court found that, as a group, Black voters 
in Jefferson County are sufficiently large and geographically 
compact to constitute a majority in at least one single member 
district. In making this finding, the district court relied on 
evidence indicating that (a) Blacks constitute 24.6% of the 
Jefferson County voting population, (b) Blacks primarily reside

148



in the central and southeastern portions of Jefferson County, and
(c) it would be possible to draw two single-member districts in 
which voting age Blacks constitute a majority. This finding is 
plausible in light of the entire record and, accordingly, we will 
not disturb it on appeal.

In considering the second and third Ginales factors, the 
district court was confronted with a sparsity of data. Because 
no Black candidate has ever run for district court judge in 
Jefferson County, the district court relied on the results of 
seven other judicial elections, occurring from 1972 to 1988, 
which pitted Black candidates against white candidates. In 
particular, the district court relied on: four Democratic
primaries involving Justice of the Peace contests; one Democratic 
primary involving a county court at law post; and two Democratic 
judicial primary runoffs. The district court also considered 
results from the 1988 Democratic Presidential primary, in which 
Jesse Jackson was a candidate.

The State Defendants and, as amicus curiae, certain 
Jefferson County District Judges attack the district court's 
decision to rely on these elections. They argue that the 
electoral results reviewed by the district court were dated and 
that the district court should have given more weight to two 
legislative races in the 1980's, races in which Black candidates 
won. We disagree. When a district court is faced with a 
sparsity of data, it must remain flexible. See Gretna. 834 F.2d 
at 502 (citing Gingles. 478 U.S. at 57 n.25). Here, the district

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court decided that the results from the eight elections offered 
by the Plaintiffs--seven of which involved judicial elections-- 
were more probative than the two legislative races relied on by 
the State Defendants. We cannot say that the district court 
clearly erred in considering results from judicial races to be 
more probative than the results from legislative races. Our 
conclusion is buttressed by the fact that the legislative races 
relied on by the State Defendants occurred in a district that (1) 
is not contiguous with Jefferson County, and (2) has a 
considerably higher percentage of Black voters than Jefferson 
County.

Based on the eight elections analyzed by the Plaintiffs' 
expert, the district court found that Black voters in Jefferson 
County are politically cohesive. In six of the eight elections, 
over 70% of Black voters chose the Black candidates; in one 
election, 51% of Black voters chose the same candidate; and 
finally, in the other election relied on by the district court, 
there was a split in the Black vote between two Black candidates. 
Faced with conflicting evidence on the issue, the district court 
could reasonably determine that Black voters are politically 
cohesive in Jefferson County judicial elections. As an appellate 
court, we will not reweigh the evidence. Accordingly, we 
conclude that the district court did not clearly err in finding 
that Plaintiffs satisfied the second Ginales factor with respect 
to Jefferson County.

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The district court also determined that, based on the seven 
judicial elections that were analyzed by the Plaintiffs' expert, 
there was legally significant white bloc voting in Jefferson 
County. In five of the seven judicial elections, the district 
court noted, Blacks and whites voted differently and the 
candidate preferred by Blacks lost--even though the Black- 
preferred candidate received 70% to 93% of the Black vote in 
those five elections. Because the district court's determination 
is plausible in light of the record, we conclude that it is not 
clearly erroneous.44

(ii) Totality of circumstances factors. As with the other 
counties involved in this case, the district court found that 
Jefferson County shares Texas' history of official discrimination 
against Blacks. The history of official discrimination against 
Blacks in Jefferson County was particularly "well chronicled" in 
Graves v. Barnes. 378 F. Supp. 640 (W.D. Tex. 1974) (three-judge 
court), vacated sub nom. White v. Regester. 422 U.S. 935 (1975) 
(Graves II). There, the three-member court found that twenty 
years after the Supreme Court's decision in Brown v. Board of

44 In their amicus brief, certain Jefferson County district 
judges request this court to take judicial notice of the fact 
that, in 1990, a Black county court at law candidate won the 
Democratic primary, defeating two white opponents, as well as the 
general election, defeating another white opponent. We decline 
to do so. The record in a Voting Rights Act case must close at 
some point, and in our view, that point is the end of trial. 
Moreover, we discern no principled way in which to limit such a 
procedure in Voting Rights Act cases. If we were to take 
judicial notice of elections occurring after trial that tend to 
undermine a vote dilution claim, we would also be compelled to 
judicially notice elections that tend to support a vote dilution Claim.

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Education.*7 the Beaumont Independent School District continued 
to bus Black children away from their neighborhood schools and 
across town to all-Black schools. Id. at 648. Given this 
history, the State Defendants do not challenge the district 
court's finding that Blacks in Jefferson County suffered from 
official discrimination and that this discrimination touched 
their rights to participate in the political process.

In considering the extent to which voting in Jefferson 
County is racially polarized, the district court focused on the 
eight elections described above. It found, based upon Dr. 
Brischetto's regression analysis, a "strong relationship between 
race and voting patterns in Jefferson County." This finding is 
supported by evidence that, in five of the seven judicial 
elections analyzed, Blacks and whites voted differently. It is 
further supported by Dr. Brischetto's calculation of a 66% to 97% 
correlation between race and voting patterns in the eight 
elections studied. Accordingly, the district court's finding of 
strong racially polarized voting is not clearly erroneous.

The district court also found that two features of the 
method of electing judges in Jefferson County enhanced the 
opportunity for racial discrimination against Blacks. The 
potentially dilutive effects of these features--namely, requiring 
candidates to run for a specifically numbered post and obtain a 
majority of votes in the primary elections--have already been 
established. See supra Part II.B.l.c. Thus, we will not set

*" 347 U.S. 483 (1954) .
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aside the district court's finding with regard to this totality 
of circumstances factor.

The district court further found that Blacks in Jefferson 
County continue to bear the effects of past discrimination in 
areas such as education and employment. The statistics 
introduced by the Plaintiffs and set forth in Appendix IV support 
this finding. Over 68% of Jefferson County's Black families have 
a yearly income below $20,000, while less than 27% of Jefferson 
County white families have an income below that level. In 
addition, 26.4% of Black families in Jefferson County--as 
compared to 4.0% of white families--live below the poverty line. 
With regard to education, only 6.2% of Jefferson County Blacks 
over the age of twenty-five have college degrees. In comparison, 
16.2% of Jefferson County whites over the age of twenty-five have 
such degrees. Finally, only 13% of working Blacks in Jefferson 
County hold managerial or profession positions, while 30% of 
working whites hold such positions. On the basis of this 
uncontroverted evidence and evidence indicating that between 14 
and 17 Black lawyers reside in Jefferson County, we conclude that 
the district court did not .clearly err in finding that racial 
discrimination continues to affect the lives of Blacks in 
Jefferson County.

As to the success of minority candidates in Jefferson 
County, the district court found that they were relatively 
unsuccessful. This finding was based in part on evidence that, 
in the eight elections analyzed, the Black candidate lost in all

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but one. This finding is also supported by the fact that no 
Black candidate has ever been elected to a state district court 
in Jefferson County. In fact, no Black candidate has ever run 
for a district court judgeship in Jefferson County. According to 
testimony at trial, the reason Black lawyers do not run for seats 
on the district court bench is because of the high probability of 
defeat. Given this testimony and the evidence from other 
elections involving black judicial candidates, we cannot say that 
the district court clearly erred in finding that Blacks have been 
relatively unsuccessful in their attempts to get elected to 
judicial positions in Jefferson County.

With regard to the other factors that may be relevant to the 
totality of circumstances analysis, the district court found no 
evidence of those factors. In particular, the district court 
determined that there was no evidence of a candidate slating 
process in Jefferson County and no evidence of racial campaign 
tactics. These findings are not challenged on appeal.

(iii) Ultimate vote dilution finding. Considering the 
total circumstances surrounding Jefferson County district court 
elections, the district court found that Texas' method of 
electing district judges operates in that county to dilute the 
voting strength of Blacks. This finding is strongly supported by 
evidence indicating that the at-large method of electing district 
judges in Jefferson County interacts with social and political 
factors, including the racial climate, to deny Blacks an equal 
opportunity to participate in the district court political

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process. Moreover, because the State Defendants introduced no 
evidence suggesting that partisan politics explain this unequal 
opportunity to participate, see infra Part IV.B.3., there is no 
argument that, under the accepted Section 2 framework, the 
district court applied an incorrect legal standard with respect 
to its ultimate vote dilution finding. We therefore hold that, 
unless the district court was required to balance state interests 
against proven vote dilution, its Section 2 liability finding in 
Jefferson County is not clearly erroneous.

f. Lubbock County

Plaintiffs proceed on behalf of Black and Hispanic voters 
combined in Lubbock County. The voters in Lubbock County 
currently elect five (5) state district judges in county-wide 
elections and one (1) additional state district judge in a bi­
county election with the voters of Crosby County. The district 
court determined, after hearing evidence, that the Plaintiffs had 
satisfied the Ginales threshold factors and that five of the 
totality of circumstances were present in Lubbock County. The 
district court further determined, based on these factors, that 
Texas' method of electing district court judges operates to 
dilute Hispanic and Black voting strength in Lubbock County.
After reviewing these findings, we conclude that none is clearly 
erroneous.

(i) Gingles factors. The district court first found, under 
the correct legal standards, that Black and Hispanic voters in 
Lubbock County are sufficiently large and geographically compact

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to constitute a majority in at least one single-member district. 
In making this finding, the district court relied on evidence 
that: (a) Blacks and Hispanics combined constitute 21.6% of the
voting age population of Lubbock County; (b) Blacks and Hispanics 
primarily reside in the northeastern, eastern, and southeastern 
sections of the Lubbock County area; and (c) it would be possible 
to create one single member district in which voting-age 
minorities constitute a majority. Because the district court's 
finding with regard to the first Gingles factor is plausible in 
light of the record, we will not set it aside as being clearly 
erroneous.

Because no local judicial contest involved a minority 
candidate opposing a white candidate, Plaintiffs' expert Dr. 
Brischetto relied on six exogenous appellate judicial contests to 
evaluate the political cohesiveness of Lubbock County's Blacks 
and Hispanics and the strength of the white bloc vote in Lubbock 
County. In particularDr. Brischetto analyzed two Texas Supreme 
Court general elections, two Democratic primary elections, and 
two Democratic primary runoffs. According to Dr. Brischetto, no 
local justice of the peace races were included in the analysis 
because the precincts for those races were not at least as large 
as a major city.

Based on the analysis conducted by Dr. Brischetto and on 
anecdotal evidence, the district court concluded that Hispanics 
and Blacks are politically cohesive in Lubbock County judicial 
races. Dr. Brischetto's analysis revealed that Blacks and

156



Hispanics favored the same candidates in each of the elections 
analyzed and that those candidates received a clear majority of 
the combined Black and Hispanic vote. Testimony from Maria Luisa 
Mercado, a Hispanic attorney from Lubbock County, also supports 
the district court's finding. She testified that Blacks and 
Hispanics work together in the county on many significant issues. 
Because the district court's finding of political cohesiveness is 
supported by the record, it is not clearly erroneous.

The State Defendants challenge the district court's finding 
of political cohesiveness in Lubbock County by pointing to 
evidence that, on several occasions, Black and Hispanic 
candidates opposed one another in Lubbock County races. The 
Supreme Court has made clear that Section 2 plaintiffs need not 
prove absolute or perfect cohesion in every race or on every 
issue; rather, minority political cohesion can be shown by proof 
that a significant number of minority group members usually vote 
for the same candidates. Gingles. 478 U.S. at 56; see also supra 
Part II.A.2. The district court's finding of political 
cohesiveness is supported by the results from six judicial 
elections in Lubbock County-- results which indicate that over 87% 
of Black and Hispanic voters usually vote for the same candidate. 
Accordingly, we conclude that the State Defendants' complaint 
about the district court's finding of political cohesiveness is 
without merit.

With regard to the third Gingles factor, the district court, 
again relying on statistical and anecdotal evidence, found that

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the white bloc vote in Lubbock County judicial elections is 
legally significant. The district court first focused on the 
statistical evidence analyzed by Dr. Brischetto, which indicated 
that (a) minorities and whites voted differently in each of the 
six elections analyzed, and (b) the candidate preferred by Blacks 
and Hispanics won only two of the six elections. The district 
court also focused on the elections analyzed by Dr. Taebel, the 
State Defendants' expert. In the judicial elections analyzed by 
Dr. Taebel--two appellate court contests and two county court 
contests--minorities and whites voted differently, and the 
minority-preferred candidate lost. Finally, the district court 
credited the testimony Mrs. Mercado, who testified that, when she 
unsuccessfully ran for City Council in 1978, she carried all 
minority precincts and zero white precincts. Faced with this 
evidence, the district court could reasonably conclude that the 
white bloc vote in Lubbock County "is sufficiently strong to 
defeat the minority community's preferred candidate."

(ii) Totality of circumstances factors. Surveying the 
totality of circumstances surrounding district court elections in 
Lubbock County, the district court found several factors 
indicative of minority vote dilution. The district court 
specifically found: a history of discrimination against Blacks
and Hispanics in Lubbock County; racially polarized elections; 
the use of voting practices that enhance the opportunity for 
discrimination; evidence that minorities in Lubbock County 
continue to bear the effects of past discrimination; and a lack

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of success by minority candidates in Lubbock County judicial 
elections. We review each of these findings in turn, seeking to 
determine whether they are plausible in light of the record as a 
whole.

The district court found that Lubbock County shares Texas' 
history of racial discrimination against Blacks and Hispanics. 
This finding is amply supported by evidence chronicled elsewhere. 
In Graves II. a three-judge court recognized that authorities in 
Lubbock County maintained racially and ethnically segregated 
schools and public facilities until the 1970's. 378 F. Supp. at 
654-55. Indeed, the State Defendants do not challenge the 
district court's finding with respect to the history of 
discrimination in Lubbock County. Instead, they candidly 
acknowledge the "long, shameful history of racial discrimination 
in Texas." Accordingly, we will not set the district court's 
finding aside as being clearly erroneous.

The district court further found a "strong relationship 
between race/ethnicity and voting patterns in Lubbock County." 
This finding is supported by evidence that, in each of the six 
judicial elections that were analyzed by Dr. Brischetto, 
minorities and whites voted differently. Dr. Brischetto 
determined, after analyzing these results, that there was an 87% 
correlation between race and voting patterns and that race 
explains 76% of the variance in these voting patterns. This 
finding is further supported by evidence from county court 
elections that were analyzed by Dr. Taebel, who testified that

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whites and minorities voted differently in those elections. We 
are therefore not left with the definite and firm conviction that 
the district court erred in finding a strong degree of racially 
polarized voting in Lubbock County judicial elections.

As with the other target counties, the district court 
determined that certain features of the method by which state 
district court judges are elected in Lubbock County increase the 
risk of vote dilution. The two features that are present in 
Lubbock County district court elections--namely, the use of 
majority vote requirements in primary elections and the use of a 
numbered-post system--are also present in each of the other 
counties. We see no clear error in the district court's finding 
with respect to this totality of circumstances factor and 
therefore decline to set it aside.

We similarly find no clear error in the district court's 
determination that Blacks and Hispanics in Lubbock County 
continue to suffer the effects of past discrimination. As the 
statistics in Appendix IV demonstrate, Blacks and Hispanics lag 
unreasonably behind whites in Lubbock County in the areas of 
education and employment. Further, the evidence reveals that 
26.8% of Black families and 23.7% of Hispanic families in Lubbock 
County live below the poverty line. By contrast, only 5.2% of 
white families live below the poverty line. Finally, evidence 
introduced by the State Defendants indicates that only 22 or 23 
Black or Hispanic lawyers reside in Lubbock County. Thus, the 
record amply supports the district court's finding that racial

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discrimination continues to affect the lives of Blacks and 
Hispanics in Lubbock County, "including their access to and 
participation in the democratic system governing this State."

In examining the success of minority candidates in Lubbock 
County, the district court was again confronted with evidence 
that no minority has ever run for such office in Lubbock County. 
As discussed above, however, in the exogenous elections analyzed 
by the Plaintiffs' expert, the Hispanic candidate lost four out 
of six times. Given the sparsity of data and the ambiguous 
results from exogenous elections, we cannot say that the district 
court clearly erred in finding that Black and Hispanic judicial 
candidates have been relatively unsuccessful in Lubbock County.

As to the other totality of circumstances factors, the 
district court found no evidence of a white-dominated slating 
organization and no evidence of racial campaign appeals in 
judicial elections. There being no challenge to these findings 
on appeal, we will accept them as being not clearly erroneous.

(iii) Ultimate vote dilution inquiry. Based on its 
subsidiary findings in Lubbock County, the district court 
determined that the method by which Texas elects district judges 
operates to dilute the voting strength of Blacks and Hispanics in 
that county. This finding was based on a number of social and 
political factors, which together provide strong evidence that 
Blacks and Hispanics in Lubbock County have an unequal 
opportunity to participate in the district court political 
process on account of their race. Assuming that the district

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court applied the correct legal standard, see infra Parts IV.B.3. 
and IV.C., we conclude that its ultimate vote dilution finding in 
Lubbock County is not clearly erroneous.

g. Midland County

Proceeding on behalf of Black and Hispanic voters in Midland 
County, where three (3) district court judges are elected in 
county-wide elections, the Plaintiffs offered evidence of the 
Gingles factors and several of the relevant factors under the 
totality of circumstances inquiry. The district court found this 
evidence persuasive and determined that the Plaintiffs satisfied 
the Gingles threshold inquiry and five of the relevant totality 
factors. The district court also determined that the Plaintiffs 
had demonstrated vote dilution in Midland County. Because the 
district court's determinations are supported by the record, we 
hold that they are not clearly erroneous.

(i) Gingles factors. With regard to the first Gingles 
factor, the district court determined that Blacks and Hispanics 
in Midland County are sufficiently large and geographically 
compact to constitute a majority in at least one single member 
district. This determination was based in part on evidence that 
Blacks and Hispanics together constitute 19.7% of Midland's 
voting age population. This determination was further based on 
evidence that, because Blacks and Hispanics primarily reside in 
the northeastern, east central, and southeastern sections of 
Midland County, it would be possible to draw one district in 
which minorities constitute a majority of the voting age

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population--even excluding non-citizen Hispanics who are of 
voting age. Because this finding is plausible in light of the 
record, we will not set it aside as being clearly erroneous.

As in Lubbock and Ector counties, no Black or Hispanic has 
ever run for a district court seat in Midland County. Therefore, 
the Plaintiffs offered the results from other judicial elections 
to establish the second and third Gingles factors. In 
particular, the Plaintiffs offered evidence from three races in 
Midland County--two exogenous appellate court races and one 
justice of the peace race that encompassed the entire City of 
Midland.

Relying on the results of these elections, and the elections 
analyzed by Dr. Taebel, the district court found that Blacks and 
Hispanics are politically cohesive in Midland County judicial 
elections. This finding is amply supported by the record: In
the three races analyzed by the Dr. Brischetto, more than 85% of 
B l a c k s  and Hispanics combined voted for the same candidate. 
Moreover, as the percentage of minorities in a precinct 
increased, so did the percentage of support for the minority- 
preferred candidate. Finally, in the four judicial contests 
analyzed by Dr. Taebel, minorities voted cohesively. The 
district court's finding of political cohesiveness is not, 
therefore, clearly erroneous.

Again, the State Defendants challenge the district court's 
finding of political cohesiveness among Black and Hispanic 
voters. Pointing to a 1985 Midland city council race, a 1988

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Midland school board race, and the 1986 Democratic primary race 
for the Texas Court of Criminal Appeals--all races in which a 
Black candidate opposed a Hispanic candidate-- the State 
Defendants argue that "in most instances. . Black-supported 
candidates do not receive the support of a majority of Hispanic 
voters, or vice versa. . . . "  We cannot agree. As with Lubbock 
County, there is evidence in the record sufficient to support a 
finding that in judicial races in Midland County, a significant 
number of Blacks and Hispanics usually vote for the same 
candidate. Under Singles, such evidence is sufficient to 
establish minority political cohesiveness. See supra Part 
II.A.2.

With regard to the third Gingles factor, the district court 
determined that white bloc voting usually operates to cancel out 
the vote of minorities in Midland County judicial elections. The 
district court again relied on election results studied by Dr. 
Brischetto. These results indicated that, in each of the three 
elections studied, the minority-preferred candidate lost despite 
the large percentages of combined minority support. The district 
court also relied on the testimony of Aguilla Watson, a Black 
woman who ran unsuccessfully for justice of the peace in Midland 
County in 1986. According to Watson, she won very few white 
votes and carried only four of the thirty-six precincts, only one 
of which included any significant amount of white cross-over 
voting. Finally, the district court relied on the election 
results analyzed by Dr. Taebel. These results showed that the

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minority-preferred candidate lost three of four times--despite 
some cross-over voting by whites. Because the district court's 
finding of legally significant white bloc voting is plausible in 
light of the record as a whole, we conclude that it is not 
clearly erroneous.

(ii) Totality of circumstances factors. In considering the 
totality of the circumstances surrounding Midland County's 
judicial races, the district court first found that Midland 
County shares Texas' history of official discrimination against 
Blacks and Hispanics. The district court was not clearly 
erroneous in making this finding. As has been chronicled 
elsewhere, the history of Midland County includes segregated 
schools, theaters, pools and restaurants. See League of United 
Latin Am. Citizens v. Midland Indeo. School Dist.. 648 F. Supp. 
596, 598 (W.D. Tex. 1986), aff'd. 812 F.2d 1491, vacated. 829 
F. 2d 546 (5th Cir. 1987) .

Nor will we set aside the district court's finding of 
racially polarized voting in Midland County. The regression and 
homogeneous precinct analyses performed by Dr. Brischetto, and 
relied on by the district court, show a "strong relationship 
between race/ethnicity and voting patterns in Midland County."
In the three elections studied by Dr. Brischetto, the correlation 
between race and voting patterns exceeded 89%, and 79% of the 
variance in voting patterns was explained by race.4® Moreover, 48

48 Dr. Brischetto's testimony regarding racially polarized 
voting in Midland County is further supported by his analysis and 
testimony in Lulac v. Midland I.S.D.. 648 F. Supp 596, 600 (W.D.

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even in the elections analyzed by Dr. Taebel, minorities and 
whites voted differently. Given this evidence, we cannot say 
that the district court's finding of racially polarized voting is 
clearly erroneous.

The district court's finding of voting practices that 
enhance the opportunity for discrimination are similarly 
supported by the evidence. Midland County, like the other 
counties at issue, employs what amounts to a numbered-post system 
and requires candidates to obtain a majority of votes in primary 
elections. The potentially dilutive effects of these devices 
having been established elsewhere, see supra Part II.B.l.c., we 
will not set aside as clearly erroneous the district court's 
finding with regard to this aspect of Lubbock County's district 
court elections.

The district court was also warranted in finding that Blacks 
and Hispanics in Midland County continue to suffer the effects of 
past discrimination. After all, as the statistics in Appendix IV 
indicate, Blacks and Hispanics in Midland County are 
disproportionately represented among those who make less than 
$20,000 and those who live below the poverty line. Moreover, 
they are disproportionately underrepresented among those in 
Midland County who hold college degrees and managerial and 
professional positions. The record further indicates that only 
10 Black and Hispanic lawyers reside in Midland County. The

Tex. 1987), aff'd, 812 F.2d 1491 (5th Cir. 1987), vacated. 829 
F.2d 546 (5th Cir. 1987), which was introduced at trial as evidence of racially polarized voting.

166



district court's finding on this totality of circumstances factor 
is therefore not clearly erroneous.

Finally, the district court did not clearly err in finding 
that minority judicial candidates have been unsuccessful in 
Midland County. No Black or Hispanic has ever run for a district 
court seat in Midland County. Moreover, in all of the judicial 
elections involving minority candidates in Midland County, the 
minority candidate lost. Accordingly, the district court's 
determination is amply supported by the record.

With respect to the other totality of circumstances factors, 
the district court found no supporting evidence. In particular, 
the district court found no evidence of a white dominated slating 
process and no evidence of racial campaign tactics. These 
findings are not challenged on appeal and we therefore will not 
set them aside as being clearly erroneous.

(iii) Ultimate vote dilution finding. Based on the 
evidence described above, the district court determined that 
Texas' method of electing district judges operates in Midland 
County to dilute the voting strength of Blacks and Hispanics.
This finding is supported by strong evidence of racially 
polarized voting and the complete lack of success by minority 
judicial candidates in Midland County. Accordingly, we conclude 
that the district court's ultimate vote dilution finding, if 
based on the appropriate legal standard, see infra Parts IV.B.3. 
and IV.C., is not clearly erroneous.

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h. Tarrant County

In Tarrant County, where twenty-three (23) state district 
judges are elected in county-wide elections, the Plaintiffs 
proceed only on behalf of Black voters. The district court found 
that Plaintiffs had introduced evidence sufficient to establish 
all three Gingles factors and five of the factors listed as 
relevant in the totality of circumstances inquiry. The district 
court also found, based on these factors, that Texas' method of 
electing district court judges dilutes Black voting strength in 
Tarrant County. As explained below, we conclude that none of the 
district court's findings with regard to Tarrant County is 
clearly erroneous.

(i) Gingles factors. With regard to the first Gingles 
factor, the district court found that Blacks in Tarrant County 
are sufficiently large and geographically compact to constitute a 
majority in at least one single-member district. This finding 
was based on evidence that (a) Blacks constitute 10.4% of the 
voting age population in Tarrant County, (b) Blacks primarily 
reside in the center of Tarrant County, and (c) it would be 
possible to draw two single-member districts with a majority of 
Blacks in the voting age population. The finding is supported by 
the record and is therefore not clearly erroneous.

The district court also found that the Plaintiffs had 
satisfied the second Gingles factor with respect to Tarrant 
County. This finding, that Blacks in Tarrant County are 
politically cohesive, is not clearly erroneous. In the three

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general district court elections pairing a Black candidate 
against a white candidate, a clear majority of Blacks preferred 
the same candidate. According to the homogeneous precinct 
analysis done by Dr. Brischetto, more than 89% of Black voters in 
Tarrant County cast their votes for the same candidate.
Moreover, in the 1988 Democratic presidential primary, 98% of 
Black voters in Tarrant County cast their vote for Jesse Jackson.

As for the third Gingles factor, the district court found 
that the white bloc vote in Tarrant County is sufficiently strong 
to usually defeat the Black community's preferred candidate. The 
district court based its finding partially on evidence that, in 
each of the three district court elections that were analyzed, 
the candidate preferred by Black voters lost, despite the 
presence of significant white cross-over voting. The district 
court also relied on testimony from Mary Ellen Hicks, a sitting 
Black district court judge in Tarrant County who gained her 
position by being appointed to fill a vacancy. She testified 
that, the only time she ran against a white candidate in a 
county-wide election, she could not convince whites to vote for 
her and, accordingly, she lost the election. Because the 
district court's finding of legally significant white bloc voting 
is plausible in light of the record as a whole, we conclude that 
it is not clearly erroneous." *

* The State Defendants again argue, relying on our decision 
in Campos, that because Blacks and Hispanics in Tarrant County 
are politically cohesive, the district court clearly erred m  
refusing to specifically consider and give equal weight to 
elections pitting whites against Hispanics for purposes of

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(ii) Totality of circumstances factors. Under the totality 
of circumstances inquiry, the district court determined that: 
there is a history of official discrimination against Blacks in 
Tarrant County; judicial elections in Tarrant County are racially 
polarized; certain other features of the election scheme in 
Tarrant County enhance the opportunity for discrimination; Blacks 
in Tarrant County continue to suffer the effects of past 
discrimination; and Black judicial candidates have been 
relatively unsuccessful in Tarrant County. We review each of 
these findings in turn and conclude that all of the findings are 
supported by the record.

Tarrant County, the district court found, shares Texas' 
history of official discrimination against Blacks. This finding 
is supported by evidence that has been chronicled elsewhere. In 
particular, white citizens in Tarrant County, in addition to 
employing racial campaign tactics, opposed desegregation of all-
white neighborhoods and community facilities. See Graves_£1, 378
F. Supp. at 644-45. We cannot say that the district court

determining whether the white bloc vote in Tarrant County is 
legally significant. Again, the State Defendants' argument in 
this regard would require a fact finding that Blacks and 
Hispanics in Tarrant County are politically cohesive. Judge 
Higginbotham correctly observes in his proposed opinion that "the 
district court made no findings as to whether black and Hispanic 
voters were also a cohesive group" in Tarrant County. Dissenting 
Op. at 94. What he fails to mention, however, is that neither 
the State Defendants nor the defendant intervenors ever asked for 
such a finding. Thus, the State Defendants are raising an 
argument that was not raised before the district court and are 
requesting that we make a finding of fact on appeal. We decline 
to address their argument and hold that the error, if any, was 
not preserved for appellate review.

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clearly erred in finding that racial discrimination is a part of 
Tarrant County's history.

The district court also found that judicial elections in 
Tarrant County are characterized by some degree of racially 
polarized voting. This finding is supported by Dr. Brischetto's 
regression analysis of the three district court elections in 
which Black candidates opposed white candidates--an analysis 
which demonstrated a 80% to 90% correlation between race and 
voting pattern. This finding is further supported by Dr.
Taebel's analysis of five primary and general judicial elections 
involving Black candidates. In all of these races, Blacks and 
whites voted differently, and there was a correlation of 60%-63% 
between race and voting patterns. Accordingly, we will not set 
aside the district court's finding as being clearly erroneous.

The district court further found that three features of the 
current method of electing judges in Tarrant County enhance the 
opportunity for discrimination. These features are: the use of
unusually large election districts, the use of majority vote 
requirements in primary elections, and the use of what amounts to 
a numbered post system. Because all these mechanisms increase 
the possibility of vote dilution, see supra Part II.B.l.c., the 
district court's finding on this totality of circumstances factor 
is not clearly erroneous.

Looking at other factors that are typically relevant to the 
totality of circumstances inquiry, the district court determined 
that Blacks in Tarrant County continue to bear the effects of

171



past discrimination. This finding is amply supported by the data 
set forth in Appendix IV, which indicates that Blacks in Tarrant 
County lag unreasonably behind whites in the areas of income, 
education, and employment. Moreover, Blacks, who make up only 
2.4% of the Tarrant County bar, are substantially
underrepresented in terms of the pool of qualified district court 
candidates. Finally, Blacks are disproportionately represented 
among those living below the poverty line. Accordingly, we 
conclude that this district court finding is not clearly 
erroneous.

We next address the district court's finding that Blacks 
have been relatively unsuccessful in bids to obtain a district 
court seat in Tarrant County. In making this finding, the 
district court was faced with ambiguous evidence. On one hand, 
there was evidence that, in the three elections pitting Black 
district court candidates against white candidates, the Black 
community's preferred choice won only once. On the other hand, 
there was evidence that, from 1985 to 1989, the proportion of 
Black district judges in Tarrant County roughly mirrored the 
Black population in Tarrant County. This latter evidence, which 
at first glance looks like consistent, proportional minority 
electoral success, might appear inconsistent with a vote dilution 
claim. See supra Part II.B.l.g. (citing Gingles). Upon further 
probing, however, we conclude that the evidence is not 
inconsistent with a vote dilution claim. At least two of the 
minority candidates that were on the district court bench in

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Tarrant County during this period were appointed and did not gam 
the seat through a contested election.50 Thus, the district 
court could reasonably give less weight to this evidence and 
conclude that Blacks have been relatively unsuccessful in their 
bid to gain district court seats in Tarrant County.

Finally, with regard to the other totality of circumstances 
factors, the district court found no evidence of a white- 
dominated slating process and no evidence of racial campaign 
tactics. These findings are not challenged on appeal.

(iii) Ultimate vote dilution finding. Based on these 
subsidiary findings, the district court found that Texas' method 
of electing district judges operates in Tarrant County to dilute 
the voting strength of Blacks. This finding was based on a 
searching and practical inquiry into the past and present 
realities of the political landscape in Tarrant County.
Moreover, it is supported by the district court's findings under 
the totality of circumstances analysis. We therefore conclude 
that the district court's ultimate vote dilution finding in 
Tarrant County, assuming it is based on the correct legal

50 According to testimony at trial, two of the three Black 
district judges were appointed and did not face opponents during 
the period from 1985 to 1988: Judge Clifford Davis and JudgeMary Ellen Hicks. In 1988, however, Judge Davis lost his bid to remain of the bench despite winning "every identifiable Black box 
by an overwhelming majority of the votes cast. The third Black 
judge that remained on the district bench in Tarrant County 
during this period, Judge Louis Sturns, ran and won as a Republican in 1986, despite garnering only some 10% of the Black
vote.

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standard, see infra Parts IV.B.3. and IV.C., is not clearly
erroneous.

i. Travis County-

In Travis County, the last county at issue in this case, 
thirteen (13) state district judges are elected in county-wide 
elections. Proceeding only on behalf of Hispanic voters in 
Travis County, the Plaintiffs offered evidence of the first three 
dingles factors and five of the relevant factors under the 
totality of circumstances inquiry. For the following reasons, we 
conclude that the district court clearly erred in finding the 
third Gingles factor--namely, legally significant white bloc 
voting. Accordingly, the district court's vote dilution finding 
with regard to Travis County must be reversed.

The district court, in addressing the first Gingles factor, 
reluctantly found that Hispanics in Travis County were 
sufficiently large and geographically compact to constitute a 
majority of the voting age population in at least one single­
member district. This finding was based on evidence that 
Hispanics constitute 14.4% of Travis County's voting age 
population, that a fairly large number of Hispanics reside in the 
eastern portion of Travis County, and that it was possible to 
draw one "minimally contiguous" single-member district in which 
Hispanic voters constituted a majority. Based on this evidence, 
it is at least debatable whether the district court clearly erred 
in finding that Plaintiffs satisfied the first Gingles factor;

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however, we need not decide this issue in view of our holding 
with respect to the third Gingles factor.

In analyzing the second and third Gingles factors, both the 
Plaintiffs' and the State Defendants' experts relied primarily on 
Democratic primary elections. Primaries were more important, 
according to the experts, because Travis County is the second 
most Democratic county in Texas. Indeed, at the time of trial, 
all of the district judges in Travis County were Democrats. 
Moreover, according to Dr. Taebel, most would agree that Travis 
County is "the most liberal county in the state."

Relying on three primary elections analyzed by the 
Plaintiffs' expert, the district court found that Hispanics are 
politically cohesive in Travis County judicial elections. Dr. 
Brischetto's analysis of three 1988 Democratic primary races--one 
district court race and two county-court - at-law races-- 
demonstrated that Hispanics gave from 77% to 95% of their votes 
to the same candidates. Because this finding is plausible in 
light of the record, we conclude that it is not clearly 
erroneous.

Based on the same three primary elections, the district 
court also found legally significant white bloc voting in Travis 
County. We conclude that this finding is clearly erroneous.
While in many cases it will be sufficient to analyze results from 
three (or conceivably, even fewer) races,51 the three elections

51 In Gingles. the district court's findings with regard to 
one of the locales were based on analysis of only three races. 
There the Court expressly noted that ”[t]he number of elections

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analyzed by Dr. Brischetto do not provide a sufficient basis on 
which to judge whether the white bloc vote usually defeats the 
candidate preferred by Hispanics. In one of the three primaries, 
there was a three-way contest between a white candidate, a Black 
candidate, and a Hispanic candidate, and the Black candidate won 
with 23% of the Hispanic vote and 52% of the white vote.® 
Moreover, in the district court primary pitting Gallardo, the 
Hispanic incumbent, against McCown, there was testimony 
indicating that the reason the Gallardo lost is because he was a 
"bad judge." Such testimony, we have noted, see supra note 6, is 
probative of whether whites will consistently vote against the 
candidate preferred by the minority group.

Elections not considered by Dr. Brischetto further call into 
doubt the district court's finding of legally significant white 
bloc voting. The State Defendants' expert, Dr. Taebel, testified 
that "[w]hites don't vote consistently as a bloc" in Travis 
County. He based this conclusion on an analysis of nine primary 
elections in Travis County with a Hispanic candidate. In those

that must be studied in order to determine whether voting is 
polarized will vary according to pertinent circumstances." 478 
U. S .  at 57 n . 2 5 .

3: Contrary to Judge Higginbotham's suggestion, we are not 
discounting this election solely because "it tends to demonstrate 
that the voting preferences of whites are not attributable to 
racial considerations." Dissenting Op. at 42. Instead, we 
question the reliability of this election because of evidence 
indicating that a Black candidate won with 23% of the Hispanic 
vote and only a bare majority of the white vote. This evidence, 
in Justice O'Connor's words, "would suggest that another 
candidate, equally preferred by [Hispanics], might be able to 
attract greater white support in future elections." Gingles, 478 
U.S. at 100.

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nine elections, the Hispanic candidate won three times, made the
runoff twice, and lost four times. Thus, Dr. Taebel was correct
when he observed that, Hispanic-preferred candidates in Travis
County win some and lose some in Travis County primaries.

In addition, this court has recently acknowledged the
willingness of white voters in Austin--who constitute a large
majority of the voters in Travis County--to vote for Hispanic-
preferred candidates. We stated:

Austin has repeatedly elected black and Mexican- 
American [city] council members during the past 17 
years. . . . [T]he winning minority candidatesfrequently received well over fifty percent (50%) of 
the Anglo vote and were also the preferred candidates 
of the minorities. Minority candidates have routinely 
been elected to other posts in Austin and the 
surrounding Travis County.

Overton. 871 F.2d at 540.
In sum, after reviewing the evidence in the record, we are 

left with a definite and firm conviction that the district court 
was mistaken in finding legally significant white bloc voting in 
Travis County judicial races. While the Hispanic-preferred 
candidate lost in each of the three 1988 primaries that were 
analyzed by the Plaintiffs' expert, we conclude that, in Travis 
County, the pattern does not establish legally significant white 
bloc voting--especially given the success of Hispanic-preferred 
candidates in other judicial and legislative elections. Because 
Plaintiffs have failed to establish one of the Gingles threshold 
factors, the district court's ultimate vote dilution finding 
cannot stand with respect to Travis County. We therefore do not 
need to address the other totality factors.

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3. Effect of District Court's Refusal to Consider Partisan 
Voting Evidence

Our next task in reviewing the district court's vote 
dilution findings under the accepted Section 2 framework is to 
consider the district court's treatment of partisan voting 
evidence. In particular, we must determine whether the district 
court's apparent refusal to consider this evidence renders 
erroneous its ultimate vote dilution findings in Bexar, Dallas, 
Ector, Harris, Lubbock, Midland, and Tarrant counties. After 
carefully considering the partisan voting evidence offered in 
this case, we conclude that the district court's refusal to 
consider such evidence does not render its vote dilution findings 
in those counties erroneous.

a. The Partisanship Evidence 
At trial, the State Defendants, Judge Wood, and Judge Entz 

introduced expert testimony purporting to show that factors other 
than racially motivated voting determine the outcome of Texas 
district court elections. According to these experts--Dr.
Taebel, Judge Davidson, and Dr. Champagne--the determinative 
"other factor" in such elections is not the race of the voters or 
candidates, but the partisan affiliation of the voters and 
candidates. The dynamics of this partisanship factor, in the 
view of these experts, play out as follows: In the counties
involved in this case, most of which are large, there are many 
district court races, which appear low on the ballot. These 
races generate only minimal voter interest. When voters prepare 
to vote in district court races, there is a substantial anonymity

178



factor--meaning that voters are generally unaware of the name or 
race of the candidate. Consequently, most of the voters are 
uninformed about district court candidates and either fail to 
vote in such races or, reflexively, vote along partisan lines.

(i) History of partisan politics in Texas. Before 
describing how partisan politics allegedly explains voting 
behavior in Texas district court elections, we shall briefly 
outline the history of partisan politics in Texas. According to 
evidence introduced at trial, Texas was, until recently, a one- 
party state in which the majority of voters called themselves 
Democrats. Now, however, Texas appears to be a two-party state 
or a state that in some areas leans strongly toward the 
Republican Party.

Dr. Taebel testified about the evolution of Texas partisan 
politics in general. He stated that, "[b]ack in the '50's and 
'60's, the Democratic Party dominated Texas politics.” During 
this time period, Dr. Taebel continued, Texas "had a one-party 
state, and therefore, all questions evolving around politics 
focused on the Primary elections." Dr. Taebel further stated 
that, "since the election of [Governor] Clements in about 1978, 
we have seen Texas become a very competitive two-party state." 
Because of this transformation, Dr. Taebel concluded, the focus 
is more extensively on general elections.

Dr. Champagne described one area of Texas--namely, Dallas 
County--which has undergone a dramatic shift in partisan 
politics. He testified that, during the 1980's, Dallas County

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went from "a one party Democratic system at the District Court 
level to essentially a one party Republican system." In making 
this conclusion, Dr. Champagne relied primarily on graphs 
indicating that: (1) from 1977 to 1988, the percentage of
Republican district judges in Dallas County increased from 0% to 
almost 100%; and (2) from 1976 to 1988, Republican district court 
candidates in Dallas County went from winning 0% of contested 
elections to winning almost 100% of such elections. The last 
time a Republican district court candidate lost a contested seat 
in a Dallas County district court election, according to Dr. 
Champagne, was in 1978.

(ii) How partisan politics operate in Texas district court 
elections. The expert testimony on partisanship revealed that 
partisan voting patterns are not identical in the seven counties 
still at issue in this case. In four of the counties, Dallas, 
Ector, Lubbock, and Midland counties, voters demonstrate a 
consistent preference for Republican candidates. In other 
counties, the partisan voting pattern appears to be "in 
transition." And finally, in Harris County, there is evidence of 
a competitive, two-party system.

Dr. Taebel first testified about Dallas County, concluding 
that Republican candidates received strong support from voters. 
Based on his analysis of twenty-three elections, Dr. Taebel said, 
"what we see in Dallas County is very strong and solid support 
for Republican candidates." He further testified that, in his 
view, these elections "clearly illustrate partisanship is the

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Whenbest way to describe what is going on in Dallas County, 
asked whether white voters would vote consistently as a bloc so 
as to usually defeat the Black-preferred candidate, Dr. Taebel 
responded:

There are two blocs of White voters. As I said, one is 
the Democrat White bloc voters and one is the Republican bloc White voters. Both of those two blocs 
vote consistently for the nominees of their parties.
It just so happens in Dallas County there is more 
Republican voters than Democratic voters and the 
Republicans win all the time, or almost all the time.
Dr. Champagne also testified about Dallas County partisan

voting patterns. Based on his analysis of district court
elections from 1980 to 1988, he concluded that the race of the
candidate has no impact on a candidate's ability to win
elections. During that time period, there were nine primary and
general elections combined in which a Black candidate opposed a
white candidate, and the Black candidate won four of those
contests. According to Dr. Champagne, when a Black candidate
runs as a Democrat, he or she loses, but when a Black candidate
runs as a Republican, he or she wins. Thus, Dr. Champagne
concluded that the one-party nature of Dallas County's political
landscape explains elections results: "Republicans win,
Democrats, lose."

In concluding that the race of the candidate has nothing to 
do with his or her ability to win, Dr. Champagne also relied on a 
random survey of 1,000 Dallas County registered voters. This 
survey, which was designed to determine voter awareness of Dallas 
County public officials and judges, asked respondents the

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following questions: whether they voted in certain elections;
whether they recognized the names of certain public officials and 
judges; whether they knew the position of certain public 
officials and judges; whether they knew the race/ethnic origin of 
certain public officials and judges; and finally, what factors 
influenced their decisions in judicial races. The results of 
this survey indicate that (a) registered voters could not 
generally recognize the names of district court judges, (b) 
registered voters did not know the race/ethnic origin of district 
judges, and (c) the reasons volunteered for voting decisions in 
district court races did not include the race of the candidate, 
but factors such as judicial integrity and honesty. This 
evidence, according to Dr. Champagne, supports his conclusion 
that Dallas County district court elections are characterized 
more by partisan voting than by racially motivated voting.

The other Republican counties, according to the testimony of 
Dr. Taebel, are Ector County, Lubbock County, and Midland County. 
With regard to Ector County, Dr. Taebel stated that "what we are 
seeing is that White Republicans constitute a, constitute a 
significant bloc vote," such that "White Republicans win." With 
regard to Lubbock County, Dr. Taebel observed that voters "tend 
to vote Republican" and that, in judicial races, there is "very 
extensive partisan voting patterns." Finally, Dr. Taebel 
characterized Midland County as "Republican territory" and, when 
asked what best describes election results in that county, Dr.

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Taebel responded that partisanship prevails: "Republicans beat
Democrats."

Dr. Taebel also testified about two counties that appear to 
be undergoing a transition from a strictly Democratic county to a 
Republican County: Bexar County and Tarrant County. Bexar
County, Dr. Taebel noted, has the smallest number of white 
Democratic voters, approximately 12%. Dr. Taebel then concluded, 
relying on results from twenty-eight elections, that "voting 
essentially follows party lines" in Bexar County. When asked 
specifically about district court general elections in Bexar 
County, Dr. Taebel responded that, "what you see in the General 
elections is that voters basically revert back to their partisan 
mode and vote for the candidate of their Party, irrespective of 
race or any other factors." With regard to Tarrant County, Dr. 
Taebel stated that, in "the early part of 1980's, it was 
primarily Democratic, or slightly Democratic, but in 1986, there 
was a major shift in Tarrant County toward the Republican Party." 
Based on this recent shift, Dr. Taebel concluded that the "party 
preference of the voters" best describes why certain candidates 
win and others do not.

Finally two experts, Dr. Taebel and Judge Mark Davidson, 
testified about how partisan politics operate in Harris County. 
According to Dr. Taebel, Harris County "is probably the most 
competitive county we looked at." Because of this
competitiveness, Dr. Taebel explained, it is difficult to predict

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who will win elections. He noted, however, that "since 1980, 
only 75 percent of the voters actually vote in judicial races."

The extent of straight - ticket voting in Harris County 
deserves special mention. Dr. Taebel testified that, of the 
voters who vote in Harris County judicial elections, almost 90% 
cast straight ticket votes. Judge Davidson testified to similar 
statistics. Such testimony is not surprising, since in any given 
election, voters in Harris County may be presented with as many 
as thirty (30) district court races. Further, according to both 
Dr. Taebel and Judge Davidson, approximately 45% of the straight 
ticket voters vote Democratic, while the other 45% of such voters 
vote Republican. Accordingly, 10% of the voters in Harris 
County, most of whom are white, end up deciding who wins 
elections. And, although these "discretionary" voters appear to 
vote in a variety ways, Judge Davidson conceded that it is 
reasonable to conclude that white judicial candidates in Harris 
County receive more of the so-called discretionary vote than 
Black candidates.

(iii) The limitations of the partisanship evidence. The 
experts also testified about the limitations of relying on 
partisan voting patterns. Dr. Champagne, on cross-examination, 
stated that, based on his studies of Dallas County elections, he 
did not know if voters equate "voting Republican" with voting 
safely white. Moreover, he conceded the possibility that 
partisanship and race are the same thing in Dallas County. Judge 
Davidson made a similar concession with regard to Harris County.

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He stated that there might be reasons other than bar polls,
incumbency, and the type of campaign run by a candidate that
influence the decisions of discretionary voters in Harris County.

Dr. Taebel, however, was the most forthright about the
limitations of statistical analyses of partisan voting patterns.
First, he stated that there is a strong identification between
being Black or Hispanic and participating in the Democratic
Party. Dr. Taebel also recognized at several points in his
testimony that "you are always going to find" racially polarized
voting. Finally, Dr. Taebel emphasized that his statistical
analysis of partisan voting patterns did not, and could not,
explain why voters vote along party lines. He stated:

I was basically analyzing how one can realistically 
describe the political process that exists in the nine 
different counties. My intent was not to find out the 
precise reasons why a candidate won or lost. My intent 
was to describe the overriding feature of partisan 
politics in nine counties. I think if you try, if I 
tried to get involved in campaign expenditures and 
incumbency, ratings by the Bar Association, it would be 
an impossible task to do.
(iv) Summation of partisanship evidence. The partisan 

voting evidence offered by the State Defendants, Judge Wood, and 
Judge Entz describes several features of Texas district court 
elections. First, it demonstrates that Texas district court 
elections are at least nominally partisan, in that the candidates 
are identified as being affiliated with either the Republican or 
Democratic Party. Second, the evidence demonstrates that, as a 
general rule, district court races appear at the bottom of a long 
ballot, and they are generally low profile elections. Third,

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because the races are low profile, the voters are generally 
unaware of either the names or the racial background of the 
various candidates. And finally, because the voters are 
relatively uninformed, those who actually vote tend to 
reflexively pull the straight ticket lever.

Thus, we are presented with evidence of predictable partisan 
voting patterns, evidence which purports to demonstrate that 
"partisanship" and not racially polarized voting best describes 
Texas district court elections. We are also told, however, that 
these predictable partisan voting patterns are not the result of 
an electorate informed about the views of the judicial 
candidates, but the result of voters being generally uninformed 
about the names and racial background of the various candidates. 
As Dr. Taebel recognized, where ballots are long, "it becomes 
very difficult for voters to sort out each of the individual 
candidates. So straight party voting tends to take over in those 
types of elections."

b. The District Court's Treatment of the Evidence

It is not clear exactly how the district court treated the 
partisanship evidence offered by the State Defendants, Judge 
Wood, and Judge Entz. In at least one part of its memorandum 
opinion, the district court appeared to credit the partisanship 
testimony. In other parts, however the district court 
discredited the testimony. And finally, in at least two 
instances, the district court stated that the partisanship 
evidence was legally irrelevant.

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First, we note that the district court admitted the
partisanship evidence and apparently credited some of the
testimony. At the beginning of its memorandum opinion, the
district court acknowledged the partisan features of Texas
district judge elections. It stated:

It was brought to the Court's attention that perhaps a 
majority of voters in a General Election, and for than 
matter, in Primary Elections, have no idea of the_ 
qualification of a judge for whom they vote. Their 
vote is cast because a straight ticket is being cast, and a straight ticket includes judicial nominees from a 
particular party.
At other places in its memorandum opinion, the district 

court appeared to discredit the partisanship testimony. With 
regard to the evidence of straight ticket voting in Dallas 
County, the district court referred to a statement by one of the 
Plaintiffs' experts that "something other than just straight 
party voting is going on." Moreover, in response to the State 
Defendants' argument that partisan preference best accounts for 
electoral success in the various counties, the district court 
found that the totality of circumstances factors nonetheless 
"point to the continual effects of historical discrimination 
hindering the ability of minorities to participate in the 
political process."

Ultimately, however, the district court labelled the 
partisanship evidence legally irrelevant.53 With regard to Judge

33 We confess to being somewhat baffled by Judge 
Higginbotham's reference to "dependence upon a winning Republican 
Party for proof of bloc voting," which he terms an "embarrassment 
to the findings of vote dilution in this case." Dissenting Op. 
at 5. Because the district court considered the partisan voting

187



Davidson's testimony in Harris County, the district court stated 
that, although it found Judge Davidson to be a credible witness, 
his testimony was legally irrelevant. And, in its conclusions of 
law, the district court stated that, "under the controlling law, 
party affiliation, straight party ticket voting and campaign 
factors do not constitute legally competent evidence."

c. The District Court's Error 
In concluding that the partisan features of Texas district 

court elections are legally irrelevant, the district court 
apparently relied on a part of Justice Brennan's opinion in 
Gingles. a part in which only a plurality of Justices joined. In 
particular, the district court relied on Justice Brennan's 
statement that, "under the 'results test' of § 2, only the 
correlation between the race of voter and selection of certain 
candidates, not the causes of the correlation, matters." 478 
U.S. at 63. Thus, the district court rejected the partisanship 
evidence because it thought that such evidence was being offered 
to establish why minorities and whites vote differently. For the 
following reasons, we conclude that the district court erred in 
relying on the language from Justice Brennan's opinion and 
refusing to consider the partisanship evidence.

to be legally irrelevant, the findings of vote dilution in this 
case are devoid of any connection to partisan voting patterns or 
a "winning Republican Party." Moreover, no one has even argued 
here that "racial prejudice cements white majorities" in 
Republican strongholds but not in Democratic strongholds. Nor 
has anyone argued that "the Republican and Democratic Parties are 
mere proxies for racial and ethnic groups in Texas." Dissenting 
Op. at 34-35. Finally, we expressly reject Judge Higginbotham's 
insistence that such views underlie this majority opinion.

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First, we think that, even under Justice Brennan's Gingl.es 
opinion, the partisanship evidence was relevant. After all, in 
that opinion, Justice Brennan recognized that "the question 
whether the political processes are equally open depends upon a 
searching practical evaluation of the past and present reality, .

and on a functional view of the political process." 478 U.S. 
at 45 (internal quotes and citations omitted) . Moreover, even 
the language relied on by the district court only purported to 
exclude evidence explaining why voters vote the way they do. In 
this case, Dr. Taebel expressly disclaimed any intent to explain
why voters vote the way they do.

Second, the language relied on by the district court was not
embraced by a majority of the Justices. Justice White, in a 
separate concurrence, disagreed with Brennan's assumption that 
the race of the candidate does not matter in analyzing racially 
polarized voting patterns under Section 2. See id^ at 83.
Justice O'Connor was more specific in her disapproval of 
Brennan's statement that the causes of racially polarized voting 
are irrelevant. In her view, "evidence that the divergent racial 
voting patterns may be explained in part by causes other than 
race, such as an underlying divergence in the interests of 
minority and white voters," might in some cases "affect the 
overall vote dilution inquiry." Id. at 100 (O'Connor, J., joined 
by three Justices, concurring in the judgment). Thus, in 
refusing to consider the partisan voting evidence, the district 
court appears to have erected, in Justice O'Connor's words, an

189



"arbitrary rule against consideration of all evidence concerning 
voting preferences other than statistical evidence of racial 
voting patterns." Id. at 101 (O'Connor, J. , concurring in the 
judgment).

Accordingly, we hold that the district court should have 
considered the partisan features of Texas district court 
elections, including partisan voting patterns, in the totality of 
circumstances inquiry under the accepted analytical framework.
To the extent the partisanship evidence purported to demonstrate 
a lack of racial animus towards specific district court 
candidates, it was unquestionably relevant to the totality of 
circumstances inquiry. See supra Part II.B.2. More important, 
the partisan features of Texas district court elections are part 
of the "context of the total circumstances of the local electoral 
process. . . ." Id. (quoting S. Rep. at 16). Such features are
also relevant to the overall vote dilution inquiry of whether 
members of a minority group have an unequal opportunity to 
participate on account of race. Thus, the partisanship evidence 
should have been considered in the totality of circumstances 
inquiry--as part of the "searching practical evaluation of the 
'past and present reality'" in the counties at issue. See supra 
Part II.B.2. (quoting S. Rep. at 30).

d . The Effect of the Error; Whitcomb Considered

Having held that the district court erred in refusing to 
consider the partisan features of Texas district court elections, 
we must now determine how that error affects the district court's

190



ultimate vote dilution findings in the seven counties for which 
such evidence was offered. We have already explained that where, 
as here, "a finding of fact is based on the misapprehension of 
governing legal standards, it loses the insulation of the 
cieariy erroneous' rule." See supra Part IV.A. (quoting Armco 

—Vr?lar Alarm, 693 F.2d at 1162) . We have also explained, 
however, that where, as here, a district court's finding loses 
the protection of the clearly erroneous rule, "a remand is the 
proper course unless the record permits only one resolution of 
the factual issue." See supra Part IV.A. (quoting Pullman- 
Standard v.— Swint, 456 U.S. at 292) . Thus, as an appellate 
court, we must decide (a) whether to reverse and remand the case 
to the district court with instructions to consider the 
Pa r t i s a n s h i p  evidence; (b) whether to reverse and render 
judgment for the State Defendants; or (c) whether to affirm the 
district court's vote dilution findings. Of course, we cannot 
pursue one of the latter two options unless, in light of the 
partisanship evidence, "the record permits only one resolution"
of the ultimate vote dilution inquiry in the seven counties at 
issue.

The State Defendants, Judge Wood, and Judge Entz argue that 
we need not remand this case for further factfinding by the 
district court. They contend that, if we consider the partisan 
features of Texas district court elections, the record permits 
only one resolution of the ultimate vote dilution inquiry--a 
resolution in which we reverse the district court's ultimate vote

191



dilution findings and render judgement in favor of the State 
Defendants. Citing Whitcomb v. Chavis, they reason that the 
evidence of partisan voting patterns precludes any finding of
vote dilution under Section 2. We disagree.

In Whitcomb v. Chavis, 403 U.S. 124 (1971), a case that
continues to have relevance under the amended Section 2, gee S. 
rep. at 20-23, 32-33, the Court rejected a challenge by Black 
voters in Marion County, Indiana to an at-large election scheme. 
In rejecting this challenge, the Court reasoned that interest 
group politics untainted by a racial minority's unequal 
opportunity to participate in the political process will not 
support a vote dilution claim. The Court, after recognizing that 
there was no evidence of an intent to discriminate against Blacks 
in Marion County, stated:

Nor does the fact that the number of [Black] residents 
who were legislators was not in proportion to Itne 
Black] population satisfactorily prove invidious 
discrimination absent evidence and findings that 
[Black] residents had less opportunity than < i Marion County residents to participate_in the political 
processes and elect legislators of their choice.

Id- at 149. The Court in Whitcomb then observed that there was
no evidence that Blacks in Marion County had an unequal
opportunity to participate in the political process.54 Indeed,

54 In particular, the Court noted that there was nothing in 
the record^suggesting that Blacks were "not allowed to register to vote? to choose the political party they desired to support, 
to participate in its affairs or to be equally represented on 
those occasions when legislative candidates were chosen.403 U.S. at 149. Moreover, there was no evidence that 
Blacks in Marion County "were regularly excluded from the slates 
of both major parties, thus denying them the chance of occupying 
legislative seats." Id. at 150. Instead, the record revealed

192



the plaintiffs in Whitcomb conceded that Black voters had an 
equal opportunity to participate in the political process. 
Because Blacks would have had "no justifiable complaints about 
representation" if the Democratic candidates had won all of the 
elections, the Court concluded that "the failure of [Blacks] to 
have legislative seats in proportion to [their] population 
emerges more as a function of losing elections than of built-in 
bias against poor [Blacks]." JcL. at 152, 153. Ultimately, the 
Court in Whitcomb stated:

On the record before us plaintiffs' position comes to this: that although they have equal opportunity to
participate in and influence the selection of candidates and legislators, and although [Blacks] vote[] predominantly Democratic and that party slates 
candidates satisfactory to [them], invidious discrimination nevertheless results when [Blacks], 
along with all other Democrats, suffer[] the disaster 
of losing too many elections. . . . The mere fact that
one interest group or another concerned with the 
outcome of Marion County elections has found itself 
outvoted and without legislative seats of its own provides no basis for invoking constitutional remedies 
where, as here, there is no indication that this 
segment of the population is being denied access to the 
political system.

403 U.S. at 153, 155 (emphasis added)
The State Defendants, Judge Wood, and Judge Entz read 

Whitcomb too broadly. The Court in Whitcomb did not hold that, 
by itself, statistical evidence of strong partisan voting 
patterns forecloses a vote dilution claim. Nor does the Court's 
decision in Whitcomb preclude a finding of vote dilution absent

that under the multimember district in Marion County, two Black 
senators and seven Black representatives had been elected over an 
eight year period.

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evidence that partisan voters are motivated by racial animus 
toward particular candidates. Rather, Whitcomb stands for a much 
narrower proposition: Where there is evidence of partisan voting
or interest group politics and no evidence that members of the 
minority group have an unequal opportunity to participate in the 
political process on account of race or color, the minority 
group's vote dilution claim will fail." 55

55 To buttress his claim that only "interest group politics" 
are at work in the Texas counties at issue in this case, Judge Higginbotham points to the Seventh Circuit's decision in Baird v. 
Consolidated City of Indianapolis. 976 F.2d 357 (7th Cir. 1992), 
and quotes Judge Easterbrook's statement that "[t]he Voting^ 
Rights Act does not guarantee that nominees of the Democratic 
Party will be elected, even if black voters are likely to favor 
that party's candidates." Dissenting Op. at 32. What Judge 
Higginbotham fails to disclose, however, is the context in which 
Judge Easterbrook made this statement.In Baird. Blacks challenged the method by which Marion 
County elected the twenty-nine members of its city-county 
council. Twenty-five of the city-county council seats were 
filled by elections from single-member districts, while four of 
the seats were filled by at-large elections. At the time of 
trial, Blacks constituted 21.28% of Marion County's population 
and approximately 60% of the population in seven of the twenty- 
five (or 24.14% of all twenty-nine seats). Thus, while Blacks 
had an "undiminished right to participate in the political 
process" and elect representative of their choice, see 976 F.2d 
at 359, they were not guaranteed the opportunity to elect 
representatives in the four at-large seats.Faced with this evidence, the district court granted summary 
judgment in favor of the defendants, concluding that, "[i]f 
[Black] voters are politically cohesive, they will elect 
candidates of their choice and obtain representation in the 
Council exceeding their numbers in the electorate; and if they 
are not cohesive, they cannot satisfy the requirements for relief 
under Gingles." Id. The Seventh Circuit agreed, noting that 
under the current election plan in Marion County, "losses by the 
candidates black voters prefer may have more to do with politics 
than with race." 976 F.2d at 361. The Seventh Circuit further 
observed, that "[t]he Voting Rights Act does not guarantee that 
nominees of the Democratic Party will be elected, even if black 
voters are likely to favor that party's candidates." Id. 
(emphasis added).

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Thus, Whitcomb must be read in the context of the community 
in which the vote dilution claim was being brought--a community 
in which the Black ghetto residents conceded that they had an 
equal opportunity to participate in the political process. The 
Black ghetto residents of Marion County, Indiana presented 
evidence that they were politically cohesive, evidence that they 
failed to elect representatives in proportion to their 
population, and evidence that they currently suffered from 
socioeconomic disparities. The plaintiffs in Whitcomb did not, 
however, at least according to the Supreme Court opinion and the 
district court's opinion, see Chavis v. Whitcomb, 305 F. Supp.

By citing Baird. Judge Higginbotham suggests that 
circumstances surrounding the election of city-council members in 
Marion County, Indiana are like the circumstances surrounding the 
election of district judges in the nine Texas counties at issue 
in this case. Even a cursory reading of the case, however, 
reveals the marked differences between the two political 
landscapes. Texas does not elect its district court judges from 
single member districts, and the minority groups in the various 
counties, even if they were 100% politically cohesive, would not 
be guaranteed the opportunity to elect representatives even 
approaching their numbers in the community.Thus, our conclusion about the significance of partisan 
voting patterns in this case says little about the significance 
of partisan voting--or interest group politics--under other 
circumstances. We are not suggesting that, in a situation like 
Baird. where a minority group was guaranteed through subdistricting the opportunity to elect representatives of its 
choice roughly in proportion to its population in the community, 
the minority group's failure to achieve proportional representation--due to interest group politics --would support a 
vote dilution claim. In such a case, members of the minority 
group would simply be unable to demonstrate, in the words of 
Section 2, that they had "less opportunity . . .  to participate 
in the political process and to elect representatives of their 
choice." In the context of a case like Baird, we would agree 
with Judge Easterbrook's statement that "[t]he Voting Rights Act 
does not guarantee that nominees of the Democratic Party will be 
elected, even if black voters are likely to favor that party's 
candidates." 976 F.2d at 361.

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1364 (S.D. Ind. 1969), present evidence of a history of official 
discrimination touching the rights of Blacks to vote and 
participate in the political process. Nor did the Blacks in 
Whitcomb present evidence that the socioeconomic disparities from 
which they suffered were the result of, or on account of, their 
race or color.

To suggest that Whitcomb would have been decided the same 
had the lawsuit challenged at-large election practices in, for 
example, Dallas County, Texas, is to ignore the official 
discrimination in voting that gave rise to the passage of the 
Voting Rights Act. As the Senate Report accompanying the amended 
Section 2 stated, "the purpose of the Voting Rights Act was 'not 
only to correct an active history of discrimination, the denying 
to [Blacks] of the right to register and vote, but also to deal 
with the accumulation of discrimination.'" S. Rep. at 5. The 
Voting Rights Act was further designed, according to the Senate 
Report, to deal with the new and "broad array of dilution schemes 
[that were being] employed to cancel the impact of the new black 
vote." Id. at 6. The state of Texas and the various counties at 
issue in this case, unlike--as far as we can tell--the state of 
Indiana and Marion County, have impeded the opportunity of Blacks 
and Hispanics to participate fully in the political process.
See. e.g.. Texas v. United States. 384 U.S. 155 (1966) 
(invalidating Texas' poll tax); Terry v. Adams. 345 U.S. 461 
(1953) (invalidating the use of racially discriminatory "pre­
primary" elections by private organization associated with the

196



Texas Democratic party); Beare v. Smith. 321 F. Supp. 1100 
(invalidating Texas law requiring voters to register annually 
because it deprived minorities of the right to participate in the 
electoral process on an equal basis) , aff'd sub north,, Beare. v.„ 
Briscoe. 498 F.2d 244 (5th Cir 1974) . And, as the State 
Defendants concede in their brief on appeal, the "long, shameful 
history" of racial discrimination in Texas "finds its present day 
reflection in the disproportionately lower socioeconomic status 
of Blacks and Hispanics as groups, as compared to Anglos as a 
group. "

In this case, we are presented only with statistical 
evidence that correlates the party of candidates with voting 
behavior. We are not presented with evidence that partisan 
politics explains minority voters' unequal opportunity to 
participate in the political process any better than, or more 
importantly, to the exclusion of, racial factors. Dr. Taebel 
specifically stated that his "intent was not to find out the 
precise reasons why a candidate won or lost." He further 
suggested that "it would be an impossible task" to attempt, 
through a multivariate analysis, to determine the relative effect 
of the various factors that could influence voters' decisions.54

54 In her brief on remand, Judge Wood argues that Dr.
Taebel's regression analysis, "which factored in the political 
party of the candidate," is the "only statistical proof that 
could accurately explain the outcomes in the partisan races being 
analyzed." Judge Wood's Brief on Remand at 26 (emphasis in 
original). Given Dr. Taebel's express disclaimer that he was not 
explaining why voters vote the way they do, we reject this 
argument.

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The other witnesses also conceded that they ultimately could 
not exclude the possibility that race was at work. Judge 
Davidson, who testified about discretionary voters in Harris 
County, conceded that reasons other than bar polls, incumbency, 
and the type of campaign run by a candidate might influence the 
decisions of those discretionary voters. Dr. Champagne, who 
testified about partisan voting in Dallas County, admitted that 
race and partisanship could be the same thing.

Moreover, in several of the counties involved, there was 
evidence that racial factors continue to play a role in judicial 
elections. In Dallas County, for example, there were two 
instances of racial campaign appeals in recent elections. And 
Dr. Engstrom, the Plaintiffs' expert, opined that general 
district court elections in Harris County are "more of a filter 
for Black candidates than Democratic candidates." This testimony 
was based on evidence that, from 1980 to 1988, 52% of all white 
Democratic district court candidates won contested general 
elections, while only 12.5% of all Black Democratic district 
court candidates won contested elections during the same time 
period. Finally, Dr. Brischetto, the other expert employed by 
the Plaintiffs, stated that, in his studies of voting behavior, 
"ethnicity is still a major, the major determinant of how people 
vote."

Even if we assume that partisan politics best describes 
voting behavior in the seven counties at issue, we are still 
faced with substantial evidence that minority voters in those

198



counties have an unequal opportunity to participate in the 
political process on account of their race or color. In each of 
the counties at issue--in Bexar County, Dallas County, Ector 
County, Harris County, Lubbock County, Midland County, and 
Tarrant County-- there is evidence of a history of discrimination 
against minorities that violated their rights to participate in 
the political process, evidence of strong to severe racially 
polarized voting,57 evidence that minorities continue to bear the 
effects of past discrimination, and evidence that minority 
candidates, especially those who are sponsored by the minority 
community, are unsuccessful in their bids to hold judicial 
offices like the district court bench. See supra Part IV.B.2. 
All of these factors point to an unequal opportunity to

3' In his dissent, Judge Higginbotham suggests that there was 
also racially polarized voting in Whitcomb. Dissenting Op. at 
14. To get to this conclusion, of course, Judge Higginbotham has 
to combine the evidence that the "ghetto area"--an area which 
included whites and blacks --voted overwhelmingly Democratic with 
evidence that Republican candidates usually won. And, although 
he states, citing Whitcomb. 403 U.S. at 149-53, that "white 
voters consistently supported Republicans," the Supreme Court 
never mentioned this fact. The only voting behavior mentioned by 
the Court in Whitcomb was that the "ghetto voted overwhelmingly 
Democratic." Thus, while the Court did focus on the fact that 
ghetto Blacks in Whitcomb were politically cohesive, the Court 
did not, under a straightforward reading of the case, focus on 
the existence or extent of racially polarized voting in Marion 
County elections.

199



participate in the political process58 and, taken together, raise 
an inference that race or color is at least partly responsible.

Accordingly, we hold that the Supreme Court's decision in 
Whitcomb does not preclude a finding of vote dilution in the 
seven counties at issue. The partisanship evidence that was 
presented to the district court simply does not sufficiently 
cancel out or negate the other factors that raise an inference 
that minority voters have an unequal opportunity to participate 
in the district court political process. Nor does the evidence 
negate the inference that race or color is at work in the various 
counties at issue.

The crucial question thus becomes, not whether to reverse 
and render judgment for the State Defendants, but rather, whether 
to remand the case to the district court for consideration of the 
partisan voting evidence. This question, in turn, depends on

58 In her brief on remand, Judge Wood suggests that minority 
voters can show an unequal opportunity to participate in the 
political process only by producing evidence of formal barriers-- 
i.e., that they are not allowed to register or vote, to choose 
the political party they desire to support, to participate in its 
affairs, or to be represented when candidates are chosen or 
slated. Judge Higginbotham would agree. See Dissenting Op. at 
12. In response to this suggestion, we note only that, under the 
amended Section 2, the concept of unequal opportunity to 
participate in the political process is a broad concept. Indeed, 
the whole vote dilution principle is premised on the notion that 
"[t]here is more to the right to vote than the right to mark a 
piece of paper and drop it in a box or the right to pull a lever 
in a voting booth. The right to vote includes the right to have 
the ballot counted. . . .  It also includes the right to have the 
vote counted at full value without dilution or discount."
Reynolds v. Sims. 377 U.S. 533, 555 n.29 (1964) (quoting Justice
Douglas). Thus, the fact that minorities are not inhibited from 
becoming candidates or overtly hindered in casting their votes is 
not dispositive of whether they have an equal opportunity to 
participate in the political process. See S. Rep. at 30 n.120.

200



whether, despite the district court's failure to consider the 
partisanship evidence, the record nonetheless requires us to 
affirm the district court's ultimate vote dilution findings under 
the accepted Section 2 framework. In answering this question, we 
must determine specifically whether the partisanship evidence 
somehow undercuts or minimizes the district court's vote dilution 
findings in each of the seven counties for which such evidence 
was offered.

In our view, the partisanship evidence does not undercut or 
minimize the district court's findings that, under the totality 
of the circumstances, minority voters in the seven counties at 
issue have an unequal opportunity to participate in the political 
process on account of race. The partisanship evidence does not 
purport to establish that minority voters are able to participate 
in the political process and elect representative of their 
choice. Rather, the evidence purports to show that, because 
voters do not know the races or names of the candidates, voters 
do not vote with specific racial animus towards particular 
candidates. Such statistical evidence of partisan voting does 
not, and could not, detract from evidence suggesting that 
minority voters' unequal opportunity to participate in the 
political process is linked to race.

Moreover, not only do the partisan features of Texas 
district court elections fail to undercut or minimize the 
district court's ultimate vote dilution findings, they also serve 
to reinforce or enhance the possibility of vote dilution. After

201



all, the evidence of partisan voting patterns in this case is 
readily distinguishable from the kind of "partisan politics" 
governing races at the top of the ballot. As already discussed, 
the partisan voting patterns in this case result from several 
unique features of Texas district court races: There are many
district court races in most of the counties at issue, and as a 
general rule, these races appear low on the ballot. There is 
also, as a general rule, low voter interest in such races and a 
resulting low level of voter knowledge about the qualifications, 
the race, and even the name of candidates. This anonymity factor 
combines with the mechanism in Texas allowing straight ticket 
voting to produce a substantial correlation between voting and 
partisan preference.”

When viewed in this light, the so-called partisanship 
evidence does not rebut or minimize the other strong evidence 
that minorities have an unequal opportunity to participate in the 
district court political process on account of race or color. 
Instead, it is just another feature of large, multimember 
election districts--a feature that reinforces the minority 
group's unequal opportunity to participate. Because of the low

” As Dr. Taebel's historical testimony alludes to, before 
1980, minority-preferred candidates lost in Democratic primary 
elections —  generally, to white Democrats. See Whit_s—v_,— Regester, 
412 U.S. at 767. In 1989, we are told, minority preferred 
candidates may make it to the general election, but once there, 
they lose to white Republicans. From the vantage point of̂  
minority voters --which is the vantage point of Section 2--it is 
difficult to see how the arrival of a two party system in Texas has altered their ability to participate in the political process 
and elect candidates of their choice.

202



profile nature of district court races, the high degree of 
anonymity involved in such races, and the resulting high 
incidence of straight - ticket voting, district court candidates 
who are sponsored by the minority community in the various 
counties at issue face an unusually high hurdle in winning 
elections: They generally cannot, due to their lack of 
resources, mount a campaign in which they could gain county-wide 
name recognition and thereby overcome the anonymity factor which 
dominates district court elections.

Accordingly, we conclude that, even though the district 
court erred in refusing to consider the partisan features of 
Texas district court elections, the record nonetheless permits 
only one resolution of the ultimate vote dilution inquiry in 
Bexar, Dallas, Ector, Harris, Lubbock, Midland, and Tarrant 
counties. The partisanship evidence demonstrates only that 
voters in district court elections, because they are unaware of 
the race of the candidates, could not be motivated by specific 
racial animus towards those candidates. The evidence does not 
demonstrate that voters, knowing the race of the candidates 
involved, nonetheless vote without regard to race. Thus, this 
"partisanship" evidence does not demonstrate the absence of 
general racial animus in the electorate, and it does not rebut 
the district court's other findings under the Gingles and 
totality of circumstances inquiry-- findings which demonstrate an 
unequal opportunity to participate in the political process on 
account of race or color.

203



As we have explained, see supra Part II.C., the ultimate
vote dilution inquiry does not focus narrowly on whether there is
current racial animus in the electorate. Instead, the ultimate 
vote dilution inquiry asks whether, in the context of the 
particular electoral process, minorities have an unequal 
opportunity to participate on account of race or color. To
demonstrate a lack of opportunity "on account of race or color, "
minority voters challenging an at-large election scheme need not 
show racial animus in the electorate, but may rely on factors in 
the totality of circumstances inquiry to raise an inference that 
race is at work. While the presence of general racial animus is 
clearly significant to the question of whether minority voters' 
unequal opportunity to participate in the political process is on 
account of race or color, the absence of general racial animus, 
as we have already explained, see supra Part II.B.2, will not 
weigh heavily against the minority group. More importantly, 
where, as here, evidence of partisan voting patterns suggests 
that the electorate, being generally uninformed, is not motivated 
by specific racial animus towards candidates, such evidence will 
not defeat or undercut a vote dilution claim--so long as the 
minority group demonstrates that its members have an unequal 
opportunity to participate in the political process and that this 
unequal opportunity is linked to race or color.

4. Summation
In sum, we hold that the district court did not err in 

finding, under the accepted Section 2 framework, that Plaintiffs

204



proved their vote dilution claims in eight of the nine target 
counties. Because no partisanship argument was raised with 
regard to the district court's ultimate vote dilution finding in 
Jefferson County, we affirm that finding under the clearly 
erroneous standard. With regard to the district court's ultimate 
vote dilution findings in Bexar, Dallas, Ector, Harris, Midland, 
Lubbock, and Tarrant counties, we affirm the district court's 
findings even though they are not protected by the clearly 
erroneous rule. Finally, because the Plaintiffs did not satisfy 
the Gingles threshold inquiry in Travis County, we reverse the 
district court's ultimate vote dilution finding with regard to 
that county.

C. Review of the District Court's Vote Dilution Findings Under
the Proposed Balancing Framework
We now proceed to review, under the proposed balancing 

framework set forth in Part II of this opinion, the district 
court's vote dilution findings in eight of the nine counties 
against the asserted state interests. Of course, the district 
court did not apply any kind of balancing framework, because back 
in 1989, no such framework had ever been suggested or 
contemplated. Thus, if a balancing framework is now required, 
the district court's ultimate vote dilution findings in each of 
the counties lose the insulation of the clearly erroneous 
standard of review.

Under such a balancing framework, were it not for the weight 
of the state interests in this case, we would be required to

205



remand this case to the district court with instructions to 
balance state interests against proven vote dilution. Given the 
uncompelling or insubstantial nature of the threatened state 
interests in this case, see supra Part III.D.3., however, this 
record only permits one result.“ The significant amount of vote 
dilution in Bexar, Dallas, Ector, Harris, Jefferson, Midland, 
Lubbock, and Tarrant counties outweighs Texas' legitimate state 
interests in preserving the administrative advantages of the 
current method of electing district judges, in allowing judges to 
specialize, and in "linking" a district court's venue with its 
electoral base.

The vote dilution findings in each of the eight counties, as 
we have already explained, find strong support in the record. In 
each of those counties, there is substantial evidence that the 
voting strength of Blacks, Hispanics, or Blacks and Hispanics 
combined, is cancelled out by the use of an at-large election 
scheme. For example, in every county, elections are polarized 
along racial lines, and minority candidates who are sponsored by 
the minority community have been suspiciously unsuccessful in 
getting elected to district court seats. In every county, 
minorities who have suffered from a history of official 
discrimination continue to lag unreasonably behind whites in the 
areas of income, education, and employment.

“ The State Defendants and Judge Entz suggest that, because 
of the state interests asserted in this case, the Plaintiffs were 
required to prove their vote dilution claims by clear and 
convincing evidence. We reject this suggestion. They offer no 
authority for increasing the Plaintiffs' burden of proof.

206



Accordingly, we conclude that even if the district court was 
required to apply a balancing framework in making its Section 2 
liability findings, we would still affirm those findings in 
Bexar, Dallas, Ector, Harris, Jefferson, Lubbock, Midland, and 
Tarrant counties. The Plaintiffs proved substantial vote 
dilution in each of the eight counties, while the state interests 
asserted by the state of Texas are little more than tenuous.
Thus, the record permits only one resolution even under the 
proposed balancing framework: the state interests do not
outweigh this proven vote dilution.

V. REMEDY
Because we have affirmed the district court's Section 2 

liability findings in eight of the nine counties, we must now 
address questions about the appropriate remedy. We address first 
the question of which unit of government has priority in devising 
a remedial plan. We then address the question of the criteria 
that must govern any remedy imposed by the district court. And 
finally, we review the interim plan already devised by the 
district court.

With regard to the first question, it is clear that the 
affected political subdivision should be given the first 
opportunity to develop a remedial plan for Section 2 violations. 
See Westwego III. 946 F.2d at 1124; Cook v. Luckett. 735 F.2d 
912, 918-19 (5th Cir. 1984); see also East Jefferson Coalition 
for Leadership & Dev, v. Parish of Jefferson, 926 F.2d 487, 490

207



(5th Cir. 1991); Gretna. 834 F.2d at 504. The affected political 
subdivision in this case is the state of Texas. Accordingly, the 
state of Texas must be left to develop, in the first instance, a 
plan that will remedy the Section 2 violations found in this 
case. The federal district court will have the power to devise a 
remedy only if the state of Texas fails to develop a remedial 
plan in a timely manner or fails to develop a plan that fully 
remedies the current vote dilution. See Cook. 735 F.2d at 918-19 
(recognizing that a district court may be forced to impose a 
remedial scheme submitted by a private litigant or formulate one 
of its own when plan submitted by legislature is "uncorrectably 
invalid").

If the district court is required to develop its own 
remedial plan, it must proceed with extreme caution. As an 
initial matter any plan developed by the district court must:
(a) cure the dilution of minority voting strength; and (b) 
intrude on state policy choices only where necessary. See Uoham 
v. Seamon. 456 U.S. 37,  41-42 (1982); White v. Weiser. 412 U.S. 
783 ,  7 9 6 - 9 7  ( 1 9 7 3 ) ;  Whitcomb v. Chavis. 403 U.S. 124, 160-61
( 1 9 7 1 ) . In this case, state policy choices may require the 
district court to carefully consider remedies such as cumulative 
voting, limited voting, or subdistricting. And, if it becomes 
apparent that a subdistricting remedy will be required, the 
district court should also consider whether multi-member 
subdistricts, at least in the larger counties, would be feasible.

208



We turn finally to the district court's interim remedy, 
which requires district judges in Texas to be elected in non­
partisan elections from single-member districts. This order 
cannot stand under the requirements set forth by the Supreme 
Court in Upham. White. and Weiser, because it unnecessarily 
brushes aside Texas' expressed interest in electing judges 
through partisan elections. The district court gave no 
explanation for rejecting Texas' system of partisan elections, 
nor did it hold a hearing on the issue. Because the equitable 
powers of the district court neither encompass nor justify the 
interim plan ordering non-partisan elections from single-member 
districts, we vacate the district court's interim remedial plan.

Thus, we remand this case to the district court with the 
following instructions concerning the remedial phase of this 
lawsuit: The district court is directed to give the state of
Texas 180 days to develop and submit to the United States 
Attorney General, in accordance with Section 5 of the Voting 
Rights Act, a plan to remedy the current vote dilution in Bexar, 
Dallas, Ector, Harris, Jefferson, Lubbock, Midland, and Tarrant 
counties. If and when the United States Attorney General 
preclears the plan submitted by the state, the district court 
shall review the plan to determine whether it rectifies the 
current vote dilution in those counties and whether it otherwise 
complies with the law. And finally, if the state of Texas does 
not develop and preclear a remedial plan in a timely fashion, or 
if the precleared plan does not, in the district court's view,

209



comply with Section 2 of the Voting Rights Act or other 
provisions of law, the district court shall determine, in 
accordance with the guidelines set forth above, what remedial 
plan to impose.

VI. CONCLUSION
For the foregoing reasons, we conclude that the district 

court did not err in determining that Texas' method of electing 
district court judges--as that method operates in Bexar, Dallas, 
Ector, Harris, Jefferson, Lubbock, Midland, and Tarrant counties 
--violates Section 2 of the Voting Rights Act. We conclude, 
however, that the district court did err in finding a Section 2 
violation in Travis County, Accordingly we AFFIRM the district 
court's judgment as to eight of the nine target counties, REVERSE 
the district court's judgment as to Travis County, and REMAND for 
the imposition of a remedy that is consistent with this opinion.

210



Judicial

Judicial 
District:

39

110

154
287

91
132

259

344
222

121

46

20

Appendix I 
Districts with Fewer

Counties:
Haskell
KentStonewallThrockmorton
Baylor
Cottle
King
Knox
Briscoe
Dickens
Floyd
Motley
Lamb
BaileyParmer
Eastland
Borden
Scurry
JonesShackleford
Chambers
Deaf Smith 
Oldham
TerryYoakum
FoardHardeman
Wilbarger
Milam

than 40,000 People 

1990Population: 
11,723

11,823

14,571

15,072
16,927

18,488 
19,433

19,806

20,088 
21,431

22,004

22,198

22,946

211



Appendix I, continued

100 CarsonChildressCollingsworth
Donley
Hall

23,703

223 Gray 23,967
29 Palo Pinto 25,055
316 Hutchinson 25,689
90 Stephens

Young
27,136

66 Hill 27,146
109 Andrews

CraneWinkler
27,616

266 Erath 27,991
286 Cochran

Hockley
28,576

355 Hood 28,981
143 Loving

Reeves
Ward

29,074

32 Fisher
Mitchell
Nolan

29,452

69 Dallam
Hartley
MooreSherman

29,818

235 Cooke 30,777
112 Crockett

PecosReagan
Sutton
Upton

31,849

212



Appendix I, continued

82 FallsRobertson
33,223

97 Archer
ClayMontague

35,271

220 BosqueComanche
Hamilton

36,239

77 Freestone
Limestone

36,764

130 Matagorda 36,928
31 GrayHemphillLipscomb

Roberts
Wheeler

37,734

118 Glasscock
Howard
Martin

38,746

35 Brown
Mills

38,902

273 SabineSan Augustine 
Shelby

39,619

13 Navarro 39,926
329 Wharton 39,955

Source: Texas Judicial Council,
Sixty-Third Annual Report 
(Supp. 1991).

213



Population of Potential Subdistricts
Appendix II

Countv
TotalPoDulation“

No. of District 
Court Seats

Population per 
Subdistrictc

Harris 2,409,544 59 40,840
Dallas 1,556,549 36 43,237
Tarrant 860,880 23 37,430
Bexar 988,800 19 52,042
Travis 419,335 13 32,257
Jefferson 250,938 8 31,367
Lubbock 211,651 6 35,275
Ector 115,374 4 28,844
Midland 82,636 3 27,545

Source: Plaintiffs' trial exhibits

‘'Figures as given by the district court. See District Court 
Opinion at 14-21.

‘-’Based on 1980 population figures; assumes each subdistrict 
is a single-judge subdistrict.

214



Appendix III
The First Gingles Factor:

The District Court's Findings Regarding the Size 
and Geographic Compactness of Minority Voting Groups63

No. of Compact, Single-Member 
Districts in

^^ountv
Harris

Plaintiffs 
Proceed on 
Behalf of:
Black voters

Minority Voters 
As a Percentage 
ol Voting Age Population:

Total No. 
of District 
Court Seats:

which Minority 
Voters Would 
Constitute a 
Majority:

18.2 59 9
Dallas Black voters 16.0 36“ 7
Tarrant Black voters 10.4 23 2
Bexar Hispanic voters 41.4 19 8
Travis Hispanic voters 14.4 13 1
Jefferson Black voters 24.6 8 2
Lubbock Black and 

Hispanic voters
21.6" 6 1

Ector Black and 
Hispanic voters

21.9 4 1

Midland Black and 19.7 3 1
Hispanic voters

‘'The figures in the chart are drawn from the district 
court's findings set out in the District Court Opinion at 14-21.

64At the time this case was filed, there were thirty-six 
district court seats in Dallas County. In 1989 the Texas Legislature created a thirty-seventh district court in Dallas 
County. District Court Opinion at 16.

wIn Lubbock, Ector, and Midland Counties the figures shown 
for minority voters as a percentage of voting age population are 
combined totals of black and Hispanic voters.

215



Socio-Economic Disparities Between Minority and White Citizens*
Appendix IV

Percent of
Percent of Percent of Percent Workforce
Families Families Over Age 25 Holding
Earning Below with Managerial or

Less Than Poverty College Professional
$20.000: Line: Dearee: Position:

Bexar
Whites 43.9 5.4 24.9 31.7
Hispanics 73.2 24.3 5.2 11.8

Dallas
Whites 36.5 3.9 25.6 28.3
Blacks 68.2 21.2 9.2 11.1

Ector
Whites 39.3 5.0 14.2 21.3
Blacks 73.5 30.6 6.1 10.6
Hispanics 67.6 18.3 2.8 6.9

Harris
Whites 28.2 3.5 28.0 30.4
Blacks 62.0 19.5 11.7 13.1

Jefferson
Whites 36.5 4.0 16.2 22.1
Blacks 67.6 26.4 6.2 10.7

Lubbock
Wh i t e s 46.5 5.2 23.8 26.6
Blacks 74.6 26.8 6.7 10.6
Hispanics 77.9 23.7 4.2 7.8

Midland
Whites 31.1 3.3 28.3 31.7
Blacks 65.7 24 . 6 6.2 9.6
Hispanics 67.6 14.7 6.2 10.8

Tarrant
Whites 40.0 4.2 20.3 25.3
Blacks 70.3 22.3 7.9 10.9

* The statistics in this appendix were taken from the 
Plaintiffs' exhibits. They are based on the 1980 Census.

216



No. 90-8014, T.eaaue of United Latin American Citizens. Council No._ 
4434. et al. v. Clements, et al.

HIGGINBOTHAM, Circuit Judge, dissenting:
I

History will with the perspective of time mark the Voting 
Rights Act as the single most important act of government in the 
black civil rights movement since the Emancipation Proclamation and 
the Civil Rights Amendments. Its constitutionality was anchored in 
the explicit grants of power to the Congress of the Thirteenth, 
Fourteenth and Fifteenth Amendments. At the same time the Voting 
Rights Act as the act of the representative branch stands on ground 
beyond the reach of the most dedicated process-oriented legal 
critics. Its mission was to deliver the constitutionally secured 
promise of power. Its result was more swift and immediately far 
reaching than Brown v. Board of Education, 347 U.S. 483 (1954).
Its allocation of power found expression at every level. The story 
can be elaborated with reams of data and a library of events but 
its soaking penetration into the daily world of the black, and the 
southern black in particular is captured by two riveting scenes.

George Wallace campaigning in Alabama in 1963 told voters, "I 
draw the line in the dust and toss the gauntlet before the feet of 
tyranny, and I say: segregation now, segregation tomorrow,
segregation forever." Within ten years Governor Wallace moved from 
his pugnacious stance in the door at the University of Alabama to 
the center of the playing field of Bryant-Denny Stadium crowning a 
black homecoming queen. It was simultaneously a trip of a quarter

1



of a mile and light years. Wallace's rhetoric of segregation now 
and forever gave way to "We're all God's children. All God's 
children are equal."

The Constitution allocates power and at every turn attempts to 
check its use. As wise as its diffusion has proved to be, our 
constitutional structure ultimately rests on the ballot box. The 
Voting Rights Act of 1965 built on this proven political theory by 
cutting at barriers to the opportunity to vote. The 
enfranchisement of protected minorities moved swiftly and the 
opportunity to vote quickly became a reality. Nonetheless many 
local political structures facilitated the perpetuation of old 
power, frustrating the leveraging power of voting minorities. Many 
white majorities were unable to jump traces that in combination 
with various election arrangements, such as at-large voting, 
facilitated the freezing of factions and left the white majority 
unchallenged and unresponsive. The fight to remove those 
structures that diluted the hard won votes of minorities 
encountered in 1980 the requirement that the structures be shown to 
have been adopted or perpetuated with the purpose of denying voting 
strength to minorities. The fight returned to the Congress 
resulting in the 1982 amendments to the Act, the interpretation of 
which today confounds this court. Before turning to these 
difficulties, one distraction must be laid aside.

I challenge the assertion that this court is somehow less 
devoted than in times past to the implementation of this 
congressional directive and the constitutional commands it

2



implements. That assertion rests on a failure to appreciate the 
new claims now being pushed under the old clothing of the civil 
rights movement. The assertion exposes unawareness that this great 
surge in the effort to implement the political ideal that we are 
all the children of this political order has, perhaps inevitably, 
gathered the baggage of contentions that federal courts must not 
only strip away the effects of racial and ethnic discrimination but 
must now shelter the work of political parties and political 
coalitions that may today but not tomorrow offer aid to blacks and 
Hispanics. It is here that I part company with my colleagues, a 
parting that leaves us far apart. The 1982 amendments reached to 
effects of racial discrimination; it did not and could not have 
dispensed with proof of race as a causative factor. As I will 
explain, the majority has read the Voting Rights Act as the 
protector of factions, not of protected racial minorities. They 
are wrong. By ignoring race the majority loses the moral force of 
the Civil Rights Amendments. More to the point it sorely taxes the 
constitutionality of the Act as the majority would apply it.

This insistence upon a tie to race received expression and 
effect in Whitcomb v. Chavis. 403 U.S. 124 (1971), and White v. 
Regester. 412 U.S. 755 (1973) , as well as the decisions of this 
court. See, e.q.. Zimmer v. McKeithen. 485 F.2d 1297 (1973), aff'd 
sub nom East Carroll Parish School Board v. Marshall. 424 U.S. 636 
(1976). The 1982 amendment's codification of the "results test" 
set out in Whitcomb and White ensured that the focus of § 2 would 
remain on those cases "where a combination of public activity and

3



private discrimination have joined to make it virtually impossible 
for minorities to play a meaningful role in the electoral process." 
Hearings on the Voting Rights Act Before the Subcomm. on the 
Constitution of the Senate Comm, of the Judiciary. 97th Cong., 2d 
Sess. 1367-68 (statement of Professor Drew Days) (emphasis added). 
The Supreme Court confirmed this understanding of the Act in 
Thornburg v. Gingles. 478 U.S. 30 (1986). There, Justice Brennan's 
attempt to sever the crucial link between alleged unequal 
opportunity and race was rebuffed by a majority of the Justices as 
a standard crafted to shield political minorities from the 
vicissitudes of "interest-group politics rather than a rule hedging 
against racial discrimination." Gingles. 478 U.S. at 83 (White, 
J. , concurring); id. at 101 (O'Connor, J. , joined by Burger, C.J., 
Powell and Rehnquist, JJ., concurring).

Similarly, the effects test that lies at the heart of 
statutory anti-discrimination law has always contemplated that 
defendants may attempt to rebut a prima facie case of disparate 
impact by showing that the challenged practice promotes a 
substantial interest. This "balancing test," despite its 
indeterminacy, has been an integral part of Title VII cases and was 
expressly recognized in the context of § 2 in Houston Lawyers' 
Ass'n v. Attorney General. Ill S. Ct. 2376 (1991), where the 
Supreme Court held that the state's interest in maintaining its 
electoral scheme should be weighed against proven vote dilution. 
Id. at 2381. It is a direct draw upon equal protection constructs.

4



The district court did not apply these legal standards. To 
the contrary, the court held that the causes of divergent voting 
patterns, including the extraordinary explanatory power of partisan 
voting, were legally irrelevant. Not even the majority seriously 
defends the ruling of the district court that partisan voting is 
simply irrelevant. In Dallas County, for example, the Republican 
Party dominates judicial elections black Republicans win and white 
Democrats lose. There are virtually no exceptions save the most 
recent elections in which a black Democratic appointee defeated a 
white Republican. But this bear in the plaintiff tent is to be 
ignored, I am told. This dependence upon a winning Republican 
Party for proof of bloc voting is an embarrassment to the findings 
of voting dilution in this case, unless it's the case that racial 
prejudice cements white majorities only in these nine counties and_ 
not in the Democratic strongholds of Texas. This alone highlights 
the failure of the plaintiffs' model to distinguish between bloc 
and party voting. Plaintiffs' and the majority's model produce a 
second perverse result. By the model as you proceed back in time 
there is less dilution of minority votes because with each step 
backward into Texas history the Democratic Party became stronger; 
the end of the closed Texas primaries would mark the absence of 
bloc voting.

All this comes from a majority willing to find a racial appeal 
in a Dallas County judicial race sufficient to warrant changing the 
structure of all its courts from a report that state district court 
Judge Baraka was described as a Black Muslim. The majority fails

5



to point out that Judge Baraka was elected with 61% of the white 
vote— and now serves on that court. In sum, the majority does not 
fairly deal with the facts and its view of partisan elections is 
not supported by the law. It equally defies common sense.

The district court also even refused to consider the strong 
state interests advanced by Texas' method of electing its district 
judges. Unable to explain away the error in failing to apply 
governing law, the majority nonetheless, with one unsupportable 
exception, affirms the district court's holding in its entirety. 
It might fairly be asked how reversal or at least a remand might be 
avoided once an appellate court concludes that a district court's 
holding is rooted in a fundamental misapprehension of not one, but 
two foundational elements of § 2 jurisprudence. The majority 
accomplishes this surprising feat by nominally accepting the 
relevant Supreme Court decisions, but then misinterpreting and 
applying them so as to give this controlling authority no practical 
effect.

The majority's interpretation of cases directing courts to 
inquire into the causes of voting patterns renders these decisions, 
particularly Whitcomb. beyond recognition. Freed from the 
constraints of statute and precedent, Congress' powerful and 
distinct command forbidding any practice "which results in a denial 
or abridgement of the right of any citizen of the United States to 
vote on account of race or color" is transformed in the imaginative 
hands of the majority into a "test" that establishes a violation of 
§ 2 whenever "some mix of factors" discloses an undefined measure

6



of unequal opportunity in a way that is somehow "linked to race or
color." Majority op. at __. The majority's avoidance of Houston
Lawyers' is less inventive but no less effective. The court 
concedes that the state's interest must be weighed against vote 
dilution, but then dismisses Texas' interest in maintaining its 
electoral plan, one virtually as old as statehood, and one that 
several members of this court, upon our earlier review, found so 
weighty as to preclude § 2 liability as a matter of law, as no more 
than "rational." We are bound to give Supreme Court decisions and 
the will of Congress their full effect. I dissent from today's 
refusal to do so.

II
The majority properly notes that a § 2 attack on an at-large 

system is governed by the framework established in Thornburg v. 
Ginqles. 478 U.S. 30 (1986). Under Gingles. a challenger of an at- 
large election scheme must demonstrate that (1) it is sufficiently 
large and geographically compact to constitute a majority in a 
single-member district; (2) it is politically cohesive; and (3) the 
white majority votes sufficiently as a bloc to enable it usually to 
defeat the minority's preferred candidate. 478 U.S. at 48-51. 
Satisfaction of these three threshold factors is necessary but not 
sufficient to establish liability; plaintiffs must also show that, 
under the "totality of circumstances," they do not possess the same 
opportunities to participate in the political process enjoyed by 
other voters. The heart of my disagreement with the majority lies 
in its explication and application of the Ginqles inquiry into

7



white bloc voting and the closely related Zimmer factor directing 
courts to examine "the extent to which voting . . .  is racially 
polarized." S. Rep. 417 at 29, reprinted in 1982 U.S. Code Cong.
& Admin. News at 206. According to the majority, causation has no 
role in examining divergent voting patterns; bloc voting exists 
whenever "whites and blacks vote differently." This approach is 
overly simplistic and in stark tension with § 2's express command 
that minority groups shall not be denied equal opportunity "on 
account of race or color." Contrary to the majority's contentions 
Whitcomb, the text and legislative history of the 1982 amendments, 
Ginqles. and the decisions of this circuit preclude a finding of 
racial bloc voting where divergent voting patterns are best 
explained by partisan affiliation.

In Whitcomb, black citizens residing in one part of Marion 
County, referred to as the "ghetto" by the Court, claimed that the 
county's at-large method of electing members to the state 
legislature impermissibly diluted their votes. "Ghetto" residents 
"voted heavily Democratic," but since the county's white majority 
consistently voted Republican, their preferred candidates were 
defeated in four of the five elections between 1960 and 1968. 403 
U.S. at 150. The Whitcomb Court recognized that the at-large 
electoral scheme caused the "voting power of ghetto residents [to 
be] 'cancelled out,'" id. at 153, but contended that this result by 
itself did not provide grounds for relief. Noting that blacks 
enjoyed full access to the political process, id. at 149-50, the 
Court reasoned that "had the Democrats won all of the elections or

8



even most of them, the ghetto would have no justifiable complaints 
about representation." Id. at 152. For this reason, the Court 
concluded that the "failure of the ghetto to have legislative seats 
in proportion to its population emerges more as a function of 
losing elections than of built-in bias against poor Negroes." Id. 
at 153.

The Whitcomb Court was reluctant to view the plaintiffs'
claims of vote dilution as anything more than "a euphemism for
political defeat at the polls," id.. because, absent evidence of a
lack of access to the political system, there was no principle by
which the Court could distinguish the "ghetto's" claims and those
of other unsuccessful political groups:

[A]re poor Negroes of the ghetto any more under­
represented than poor ghetto whites who also voted Democratic and lost, or any more discriminated against 
than other interest groups or voters in Marion County with allegiance to the Democratic Party, or, conversely, 
any less represented than Republican areas or voters in 
years of Republican defeat? We think not. The mere fact 
that one interest group or another concerned with the 
outcome of Marion County elections has found itself 
outvoted and without legislative seats of its own 
provides no basis for invoking constitutional remedies 
where, as here, there is no indication that this segment 
of the population is being denied access to the political 
system.

Id. at 154-55. To grant relief to black residents in this case 
"would make it difficult to reject claims of Democrats, 
Republicans, or members of any political organization in Marion 
County who live in what would be safe districts in a single-member 
district system but who in one year or another, or year after year, 
are submerged in a multi-member district vote." Id. at 156.

9



As the Seventh Circuit recently observed, § 2 is "a balm for
racial minorities, not political ones— even though the two often
coincide." Baird v. Consolidated City of Indianapolis. 976 F.2d
357, 361 (7th Cir. 1992) (citing Whitcomb). Black Democrats are
entitled to relief when their defeats at the polls are attributable
to their race, but not when such losses are due to their party.
The majority rejects the rule established in Whitcomb and its
opinion is replete with assertions that any suggestion that
evidence of partisan voting might be introduced to explain
divergent voting patterns is presumptively inconsistent with § 2's
focus on "results." See, e. g . . Majority op. at  ; see also
Richard L. Engstrom, The Reincarnation of the Intent Standard:
Federal Judges and At-Large Election Cases. 28 How. L. J. 495, 498
(1985). The relevant authorities, however, indicate that
Whitcomb's causation analysis is entirely consistent with an
approach that looks not to "intent," but "effects." In Mobile v.
Bolden, 446 U.S. 55 (1980), for example, the plurality's assertions
that Whitcomb had required a showing of intent, see id. at 66, 70,
required Justice Marshall in dissent to explain the decision:

In Whitcomb v. Chavis, we again repeated and applied the 
Fortson [effects) standard, but determined that the Negro 
community's lack of success at the polls was the result 
of partisan politics, not racial vote dilution. The 
Court stressed that both the Democratic and Republican 
Parties had nominated Negroes and several had been 
elected. Negro candidates lost only when their entire 
party slate went down to defeat. In addition, the Court 
was impressed that there was no finding that officials had been unresponsive to Negro concerns.

Id_̂  at 109 (Marshall, J., dissenting) (emphasis added) (citations

10



omitted). The Senate Report agreed with Justice Marshall that
Whitcomb had employed an effects test and echoed his emphasis in
presenting what it understood to be the kernel of the decision:

The failure of the ghetto to have legislative seats in 
proportion to its population emerges more as a function 
of losing elections than of built-in bias against poor 
Negroes. The voting power of ghetto residents may have 
been "cancelled out," as the district court held, but 
this seems a mere jauphemism for political defeat at the 
polls.

S. Rep. 417 at 21 (quoting Whitcomb. 403 U.S. at 153) (emphasis 
added), reprinted in 1982 U.S. Code Cong. & Admin. News at 198. 
These references to the "lack of success at the polls" as a 
"result" or "function" of "partisan politics," not "racial vote 
dilution" or "built-in bias against poor Negroes," only confirm 
Whitcomb's central meaning: where black Democrats lose not because
they are black, but because they are Democrats, or, put another 
way, where black Republicans win and white Democrats lose, there 
can be no finding of illegal vote dilution.

The majority offers a very different reading of Whitcomb. 
According to the majority, this case stands for a very narrow 
proposition: "Where there is evidence of partisan voting or
interest group politics and no evidence that members of the 
minority group have an unequal opportunity to participate in the 
political process on account of race or color, the minority group's
vote dilution claim will fail." Majority op. at __ (emphasis in
original). Stated in this manner, Whitcomb presents no obstacle to 
liability in this case, for here there is "substantial evidence 
that minority voters in those counties have an unequal opportunity

11



to participate in the political process on account of race." Id 
at

This reading renders Whitcomb nonsensical. The majority would
have the decision stand for the following proposition: "Where there
is evidence of partisan voting and no evidence of vote dilution,
the minority's vote dilution claim will fail." This odd result is
accomplished through a bit of anachronistic wordplay, as the
majority infuses one of the Court's subsidiary findings with the
import it would have under the amended § 2. The majority quotes
the Whitcomb Court's statement that black voters could not prevail
"absent evidence and findings that [black] residents had less
opportunity than did other Marion County residents to participate
in the political process and elect legislators of their choice."
Majority op. at   (quoting Whitcomb. 403 U.S. at 149). The
language used by the Court here was of course codified by the 1982
amendments, and today constitutes the ultimate showing of vote
dilution necessary to make out a violation of § 2. The Whitcomb
Court had something very different in mind, however, as the text
immediately following this statement discloses:

We have discovered nothing in the record or in the 
court's findings indicating that poor Negroes were not 
allowed to register or vote, to choose the political 
party they desired to support, to participate in its 
affairs or to be equally represented on those occasions 
when legislative candidates were chosen. Nor did the 
evidence purport to show or the court find that 
inhabitants of the ghetto were regularly excluded from 
the slates of both major parties, thus denying them the 
chance of occupying legislative seats.

Id. at 149-50. This evidence of an equal "opportunity . . . to
participate in the political process and elect legislators of their

12



choice" pertains solely to formal barriers to political 
participation, and is examined under "Zimmer" factors today. As 
such, it is, contrary to the majority's contentions, quite remote 
from anything resembling an ultimate finding of nondilution.

The flaws in the majority's reading of Whitcomb become even 
more pronounced when it attempts to distinguish this decision from 
the instant case. Recall that Whitcomb "held" that a minority 
group's vote dilution claim will fail "[w]here there is evidence of 
partisan voting and no evidence that members of the minority group 
have an unequal opportunity to participate in the political process
on account of race or color." Majority op. at __ (emphasis in
original). The majority concludes from this that "Whitcomb does 
not preclude a finding of vote dilution" in this case because there 
is "substantial evidence that minority voters in those counties 
have an unequal opportunity to participate in the political process
on account of their race or color." Majority op. at __. In these
counties

there is [1] evidence of a history of discrimination 
against minorities that violated their rights to 
participate in the political process, [2] evidence of 
strong to severe racially polarized voting, [3] evidence 
that minorities continue to bear the effects of past 
discrimination, and [4] evidence that minority 
candidates, especially those who are sponsored by the 
minority community, are unsuccessful in their bids to 
hold offices like the district court bench.

Id. at _. The difficulty is that all of these circumstances
constituting "substantial evidence" of unequal opportunity were
present to an equal or greater extent in Whitcomb, a case in which,
according to the majority, there was "no evidence." A comparison

13



In sum, were facts identical to those present in Whitcomb 
before the court today, the majority's analysis would compel it to 
find, in direct contradiction with the Supreme Court's holding, 
illegal vote dilution. The obvious impermissibility of this result 
makes a mockery of its announcement, apparently offered in all 
seriousness, that "we decline to redefine the concept of racially 
polarized voting to include a causation element." Majority op. at 
_. An inquiry into whether divergent voting patterns are 
attributable to partisan voting does not involve a "redefin[ition]" 
of a "concept," but the application of binding Supreme Court 
precedent. Further, that this court would find "substantial
evidence" of unequal opportunity on the same record in which the 
Supreme Court, according to the majority, found "no evidence" 
demonstrates just how far we have strayed in examining the other 
elements of a voting rights claim. Whitcomb dictates that no 
dilution should be found where polarized voting is the product of 
partisan politics, even where a minority group suffers from the 
lingering effects of past discrimination and the percentage of 
minority officeholders does not mirror the group's population.

The majority strenuously resists both the general
applicability of Whitcomb and the particular conclusion that an 
application of the approach it employs today to the facts of that 
case would require us to find illegal vote dilution. The court 
contends that "Whitcomb must be read in the context of the 
community in which the vote dilution claim was being brought." 
Majority op. at __. The "context" of Whitcomb differs from the

16



record before us, according to the majority, in two respects. The 
plaintiffs in Whitcomb, unlike the plaintiffs in this case, did not 
present evidence (1) of "a history of official discrimination 
touching the rights of Blacks to vote and participate in the 
political process" and (2) "that the socioeconomic disparities from 
which they suffered were the result of, or on account of, race or 
color." Majority op. at __.

The majority's attempt to distinguish Whitcomb on these 
grounds is wholly unpersuasive. This argument does provide, 
however, an ample demonstration of the literally dispositive weight 
the court attaches to the two Zimmer factors pertaining to the 
effects of discrimination. In the first instance, the majority 
offers no reasons in support of its contention that Whitcomb must 
be read "in context." The Whitcomb Court itself certainly gave no_. 
indications that its analysis of racial dilution, particularly its 
emphasis on the role of partisan voting, was somehow tied to the 
immediate facts of the case or otherwise inapplicable to cases in 
which there is evidence of discrimination with respect to voting. 
In addition, there are no suggestions in either the Senate Report 
or Thornburg v. Gingles. 478 U.S. 30 (1986), that Whitcomb should 
be limited in the manner proposed by the majority. Gingles is 
especially relevant, given that the Court had before it a § 2 claim 
arising in North Carolina, a state which of course shares much of 
Texas' tragic history of discrimination. To the extent that the 
court's limited reading of Whitcomb rests on the perceived 
importance of the effects of discrimination, the rejection of this

17



interpretation by the relevant authorities discloses that the court 
has grossly overestimated the significance of these factors.

Moreover, even if the Zimmer factors concerning the effects of 
past discrimination could bear the dispositive weight the court 
imposes, the lack of evidence relating to these effects in this 
case precludes the court from distinguishing Whitcomb. Recall that 
Whitcomb differs from this case because of an absence of evidence 
(1) of "a history of official discrimination touching the rights of 
Blacks to vote and participate in the political process" and (2) 
"that the socioeconomic disparities from which they suffered were 
the result of, or on account of, race or color." Majority op. at 

. This statement is not accurate, for residents of the "ghetto," 
like many of the minority voters in this case, were victims of 
discrimination in education and housing, as a 1971 decision finding- 
de jure segregation in the Indianapolis public schools indicates. 
See United States v. Board of School Commissioners. 332 F. Supp. 
655 (S.D. Ind. 1971). Thus, the two cases are distinguishable only 
by Texas' history of voting discrimination. The difficulty with 
the majority's reliance on this factor, however, is that there is 
no evidence in the record that this history has any present-day 
effects in seven of the eight counties in which the court finds a 
§ 2 liability. The majority concedes that plaintiffs have failed 
to show that black citizens register to vote at a lower rate than 
whites, the typical way in which this Zimmer factor is established, 
see, e.g., Gingles. 478 U.S. at 39, and instead purports to rely on 
the paucity of minority lawyers as proof. But this lack of

18



minority lawyers is attributable, as the court's citation of Sweat 
v. Painter. 339 U.S. 629 (1950), suggests, to discrimination in 
education, not voting. Since Marion County and Texas have this 
unfortunate history of segregated education in common, the 
majority's attempt to distinguish Whitcomb ultimately fails.

As I explain in more detail in the attached opinion, Whitcomb 
precludes a finding of vote dilution in most, but not all, of the 
counties at issue. The only possible justification for the 
majority's failure to give the decision full force in this case is 
that Whitcomb enjoys lesser significance under the amended § 2. 
The majority in fact makes a brief attempt to slight the decision's 
importance, suggesting only that Whitcomb "continues to have
relevance under the amended Section 2." Majority op. at __. But
the very passages in the Senate Report the court cites explicitly 
state that the 1982 amendment is intended to codify the results 
test as employed in Whitcomb and White. See S. Rep. 417 at 20-23, 
32-33, reprinted in 1982 U.S. Code Cong. & Admin. News at 197-201, 
210-11; see also Jones. 727 F.2d at 379 (the amended § 2 "codifies 
pre-Bolden voting dilution law"). A review of the text and 
legislative history of the 1982 amendment and Thornburg v. Gingles. 
478 U.S. 30 (1986), confirms this legislative intent.

Whitcomb's teaching that illegal vote dilution does not lie 
where the inability of minority groups to elect candidates of their 
choice is the product of partisan voting— where black Republicans 
win and white Democrats lose— is reflected in the text of amended 
§ 2 itself. Plaintiffs may establish a violation of § 2 by proving

19



that members of a minority group "have less opportunity than other 
members of the electorate to participate in the political process 
and to elect representatives of their choice." 42 U.S.C.
§ 1973(b). The statute then singles out "[t]he extent to which 
members of a protected class have been elected to office in the 
state or political subdivision [as] one circumstance which may 
considered." Id. This express reference to the success of 
minority candidates led the Gingles Court to cite this factor along 
with racial bloc voting as most probative of illegal vote dilution. 
478 U.S. at 48 n.15.

The influence of Whitcomb is evident in Congress' provision of 
"[t]he extent to which members of a protected class have been 
elected," rather than the extent to which members of a minority 
group have "elect[ed] representatives of their choice," as the 
yardstick for minority electoral success. The minority-preferred 
candidate will not always be a minority herself, and successful 
minority candidates will not always have the support of minority 
voters. The distinction between the two terms contained in § 2 
loses its significance only in cases where race is the primary 
determinant of voter behavior, as the white majority's refusal to 
vote for minority candidates ensures they will be elected only with 
the support of minority voters, if at all. By contrast, where, as 
here, party affiliation best explains voting patterns, Congress' 
decision to confine the inquiry into electoral success to whether 
"members of a protected class have been elected" becomes quite 
relevant. In order to establish this crucial element in their vote

20



dilution claim, plaintiffs must show not that the white majority 
does not support minority-preferred candidates, but that whites do 
not vote for minority candidates. Simply put, it is quite possible 
that minority plaintiffs will be unable to demonstrate a relevant 
lack of electoral success as part of the "totality of 
circumstances" inquiry even where few, if any, minority—preferred 
candidates have been elected, as in the case, for example, where 
black Republicans win and white Democrats lose. Section 2 thus 
preserves Whitcomb's sharp distinction between cases of illegal 
vote dilution and those instances in which the "cancell[ing] out" 
of a minority group's "voting power" constitutes no more than a 
"political defeat at the polls." Whitcomb, 403 U.S. at 153.

This interpretation of § 2 of course presumes that Congress 
intended to convey legal meaning through the use of two distinct 
phrases, that it did not use "members of the protected class" and 
"representatives of [the minority group's] choice" synonymously on 
the assumption that whites will only support white candidates and 
minorities will only support minority candidates. In Gingles, 
however, Justice Brennan proposed this contrary reading of § 2 in 
contending, as the majority does here, see, e.g., majority op. at 

, that the focus of a court's inquiry into electoral success 
should remain on whether members of a minority group are able to 
"elect representatives of their choice." Gingles, 478 U.S. at 67- 
68 (emphasis in original). Justice Brennan maintained that 
"[u]nder § 2, it is the status of the candidate as the chosen 
representative of a particular racial group, not the race of the

21



candidate, that is important." Id. (emphasis in original). The 
obvious difficulty with this position is that § 2's explicit 
reference to "members of a protected class" would seem to make the 
race of the candidate, not the source of her support, the 
significant factor in gauging electoral success. Justice Brennan 
attempted to ease this tension by intimating that "members of a 
protected class" should be read "representatives of [the minority 
group's] choice." After noting that "it will frequently be the 
case that a black candidate is the choice of blacks, while a white 
candidates is the choice of whites," he explained that this 
"tendency" made it "convenien[t]" for him to follow the district 
court in "refer[ring] to the preferred representative of black 
voters as the 'black candidate' and to the preferred representative 
of white voters as the 'white representative." Id. Given that 
Congress no doubt had the opportunity to observe this same 
"tendency" among voters, is it unreasonable to believe that it 
employed the same background assumption in drafting § 2? 
Regardless, Justice Brennan concluded, contrary to the text of the 
statute, that "the fact that race of voter and race of candidate is 
often correlated is not directly pertinent to a § 2 inquiry." Id.

The Senate Report, however, expressly disclaimed any reliance 
on a purported correlation between the race of the voter and the 
candidate. The Senate Subcommittee on the Constitution's Report 
charged the authors of the amended statute with proceeding under 
the same assumption attributed to them by Justice Brennan, "that 
race is the predominant determinant of political preference . . .

22



[and] that blacks will only vote for black candidates and whites
only for white candidates." S. Rep. 417 at 107, 148 (Report of the
Subcommittee on the Constitution), reprinted in 1982 U.S. Code
Cong. & Admin. News at 278, 321. Rather than disclose its adoption
of this assumption or dismiss the asserted tendency among white
voters to vote only for white candidates as "not directly pertinent
to a § 2 inquiry," as Justice Brennan's analysis might have
suggested the Senate Report cited such incidents of "racial
politics" as the harm § 2 was intended to remedy: "Unfortunately
. . . there still are some communities in our Nation where racial
politics do dominate the electoral process. In the context of such
racial bloc voting, and other factors, a particular election method
can deny minority voters equal opportunity to participate
meaningfully in elections." Id. at 33, reprinted— in U.S. Code
Cong. & Admin. News at 211. The Senate Report continued:

The results test makes no assumptions one way_or the
pther about the role of racial political considerations 
in a particular community. If plaintiffs assert that 
they are denied fair access to the political process, in 
part, because of the racial bloc voting context within 
which the challenged election system works, they would 
have to prove it.

Id. at 34 (emphasis in original), reprinted in U.S. Code Cong. & 
Admin. News at 212.

Far from assuming a tendency among white voters to vote for 
white candidates in drafting the statute, Congress identified such 
"racial political considerations" as the linchpin of a successful 
vote dilution claim. We have no license to amend § 2, as the 
majority would do here, by analyzing the electoral success of

23



••members of a protected class" through a "representatives of [the
minority group's] choice" filter, with the success of minority
candidates not supported by the minority group being discounted
accordingly. Evidence of the electoral success of minority
candidates should not, of course, be accepted uncritically, but the
Senate Report, consistent with the text of § 2, expressly limits
the scope of our inquiry in cautioning that the

election of a few minority candidates does not 
"necessarily foreclose the possibility of dilution of the 
black vote," in violation of this section. Zimmer, 485 
F. 2d at 1307. If it did, the possibility exists that the 
majority citizens might evade the section e*9;/ .“Y manipulating the election of a "safe" minority Candida e.
"Were we to hold that a minority candidate's success at 
the polls is conclusive proof of a minority group s 
access to the political process, we would merely be 
inviting attempts to circumvent the Constitution • • •
Instead we shall continue to require an independent 
consideration of the record." IbicL.

Id. at 29 n.115, reprinted in 1982 U.S. Code Cong. & Admin. News at
207 n.115. This passage does not suggest that courts should
discount the success of minority candidates elected without 
widespread support from minority groups, as the majority might have 
it. The concern that the election of a "'safe' minority candidate 
might facilitate an evasion of § 2 is a function of the number of 
candidates, not the source of their support. The election of 
several, rather than few, minorities precludes an inference that 
the process has somehow been manipulated. In any event, the record 
in this case discloses that Republicans have in no way attempted to 
limit their ticket to minority candidates adjudged to be "safe." 
Plaintiff-intervenors Oliver, Tinsley, and White, for example, all 
of whom ran unsuccessfully as Democrats, testified that they were

24



heavily lobbied by the Dallas Republican Party to run as 
Republicans. White in fact acknowledged what the majority has 
refused to recognize in this case, that "if I ran as a Republican 
. . . the likelihood is that I would win."

Section 2 provides that plaintiffs' proof of a lack of 
electoral success turns solely on the election rate of "members of 
a protected class" without regard to whether these individuals are 
"representatives of [the minority group's] choice." Since the 
support of the majority of white voters will ensure victory in most 
communities, the statute, in so limiting our inquiry, requires 
plaintiffs seeking to demonstrate a lack of electoral success to 
establish that white voters do not vote for minority candidates. 
This principle seems sensible, for the willingness of whites to 
support minority candidates tends to negate any inference that 
their failure to give their votes to minority-preferred candidates, 
regardless of color, is attributable to race. As such, the losses 
of minority-preferred candidates in these instances are best 
explained by political, rather than racial, differences.3

3The majority misunderstands my argument on this score. It 
first maintains that I contend that the extent to which minority 
candidates have been elected should somehow take precedence over 
the ultimate question in § 2 cases— whether a minority group has an 
equal opportunity to elect representatives of their choice.
Majority op. at __. This distortion provides the foundation for
the claim that I urge that the election of "'several' . . . 
Republican minority candidates, candidates who were not even 
supported by the minority community, indicates as a matter of law 
that minorities have an equal opportunity to elect representatives
of their choice." Majority op. at __. Contrary to these
imputations, the discussion in the text suggests nothing of the 
sort.

25



The Whitcomb Court made plain that evidence that a minority 
group's "voting power" has been "cancelled out," is not enough, by 
itself, to establish liability. Courts must also determine whether 
these political defeats are "a function of losing elections" or 
"built-in bias," or, to use Justice Marshall's words, whether a 
minority group's "lack of success at the polls was the result of
partisan politics [or] racial vote dilution." Mobile v._Bolden,
446 U.S. 55, 109 (1980) (Marshall, J. , dissenting) . One of the 
purposes behind my analysis is to test the majority's implicit 
argument that the 1982 amendments, despite Congress' express intent 
to "codify" Whitcomb. abandoned this crucial distinction. I submit 
that the language of § 2 provides strong indications that they did 
not.

Congress would have taken great strides toward enacting the 
majority's understanding of the Voting Rights Act had it stated 
that a violation of § 2 is established where members of a minority 
group "have less opportunity . . . to elect representatives of 
their choice. The extent to which representatives of a minority 
group's choice have been elected . . . is one circumstance which 
may be considered." Under such a statute, a legally relevant lack 
of electoral success would be established upon a showing that 
minority group voters had lost more elections than other members of 
the electorate; the success of minority candidates who did not 
receive decisive support from minority voters would be irrelevant. 
In the context of the inquiry into electoral success, Whitcomb's distinction between partisan politics and illegal vote dilution 
would have been erased.

Viewed in this manner, I believe that Congress' decision to 
establish "[t]he extent to which members of a protected class have 
been elected" as the measure of legally relevant electoral success 
is significant. This formulation does not equate political defeat 
with a probative lack of electoral success, for "members of a 
protected class" will not always be "representatives of [a minority 
group's] choice," and vice versa. A minority group's ability 
consistently "to elect representatives of their choice" is not 
necessarily proof of electoral success within the meaning of § 2, 
just as an inability "to elect representatives of their choice" 
does not preclude a showing of legally relevant electoral success. 
Since electoral success is to be gauged without regard to the 
presence or absence of minority voter support for successful 
minority candidates, it is quite possible that minority plaintiffs 
would not be able to establish this element in their vote dilution 
claim even though they have had little or no success in electing 
"representatives of their choice." The reason why such a result 
might have been acceptable to Congress is that such evidence would 
indicate widespread support among white voters for minority candidates, which in turn would suggest that the reluctance of 
whites to support minority-preferred candidates was attributable to

26



It would seem anomalous for our inquiry into racial bloc 
voting, the other crucial element of a vote dilution claim 
identified by the Ginqles Court, to be governed by different 
principles. Plaintiffs may establish this factor by demonstrating 
"that the white majority votes sufficiently as a bloc to enable it 

. usually to defeat the minority's preferred candidate." 
Ginqles. 478 U.S. at 51. As discussed above, § 2's provision of
the race of the candidates, not their status as the choice of the 
minority group, as the relevant factor in measuring electoral 
success will often preclude plaintiffs from establishing legally

factors other than race, such as partisan affiliation. The 
minority group's electoral losses in this instance are most 
properly viewed as the result of "partisan politics, not racial 
vote dilution."

Contrary to the majority's contentions, I am not seeking to 
displace the ultimate § 2 inquiry into whether plaintiffs "have 
less opportunity than other members of the electorate to participate in the political process and elect representatives of 
their choice" with this important, but subsidiary examination of 
electoral success. I would submit that it is the court, by 
discounting the success of minority candidates who were not 
preferred by minority voters, that has confused these terms. 
Similarly, nothing I have said suggests that I would find the 
success of minority candidates in this case to preclude all vote 
dilution claims "as a matter of law." My discussion of the 
significance of "several" rather than "few" minority officeholders 
pertains not to the case at bar, but is meant to illustrate that 
Senate's concern with the possible "manipulation" of the process to 
elect a "safe" minority candidate is a function of number, not, as 
the majority contends, the relative absence of minority voter 
support. I refer in this instance specifically to the Dallas 
Republican Party's lobbying of unsuccessful black Democratic 
candidates only because the majority's treatment of black Republicans' success in Dallas constitutes the most prominent 
example of its refusal, contrary to § 2, to distinguish legally 
relevant electoral success and the success of minority voters in 
electing representatives of their choice, a refusal that is intimately linked to the court's professed inability to distinguish 
"defeat at the polls" and "illegal vote dilution."

27



relevant electoral losses where these defeats are attributable to 
partisan differences. A consideration of the race of the candidate 
in examining racial bloc voting leads to a similar and, I would 
submit, proper result.

The role of the candidate's race in assessing racial bloc
voting formed the basis of the fundamental disagreement among the
Justices in Ginales. Justice Brennan advanced the textual argument
discussed above as part of his argument that "[u]nder § 2, it is
the status of the candidate as the chosen— representative— of— a
particular racial group, not the race of the candidate, that is
important." Id. at 68 (emphasis in original). Justice Brennan's
assertion that the race of the candidate was irrelevant in
examining racial bloc voting, however, was squarely rejected by
five Justices in Ginales. 478 U.S. at 83 (White, J., concurring);
id. at 100-01 (O'Connor, J., joined by Burger, C.J., Powell and
Rehnquist, JJ., concurring). Justice White argued that

Justice Brennan states in Part III-C that the crucial 
factor in identifying polarized voting is the race of the 
voter and that the race of the candidate is irrelevant.
Under this test. there is polarized— vot inq— Lf— the
majority of white voters vote for different_candidates
than the majority of the blacks,_regardless—of—the race
of the candidates. I do not agree. Suppose an eight- 
member multimember district that is 60% white and 40% 
black, the blacks being geographically located so that 
two safe black single-member districts could be drawn. 
Suppose further that there are six white and two black 
Democrats running against six white and two black Republicans. Under Justice Brennan's test, there would 
be polarized voting and a likely § 2 violation if all the 
Republicans, including the two blacks, are elected, and 
80% of the blacks in the predominately black areas vote 
Democratic . . . .  This is interest-group politics 
rather than a rule hedging against racial discrimination.
I doubt that this is what Congress had in mind in 
amending § 2 as it did, and it seems quite at odds with

28



the discussion in Whitcomb v. Chavis, 403 U.S. 124, 149- 
160 (1971).

Id. at 83 (White, J. , concurring) (emphasis added). J u s t i c e  
O'Connor joined Justice White in maintaining that evidence that 
white and minority voters generally supported different candidates
did not constitute legally significant racial bloc voting where 
these patterns were attributable to partisan affiliation rather 
than the race of the candidate. She therefore rejected Justice 
Brennan's position that

evidence that the divergent racial voting patterns may be
explained in part by causes other than race, such_as_an
underlying divergence in the interests_of_minority_and
white voters . . . .  can never affect the overall vote dilution inquiry. Evidence that a candidate preferred by 
the minority group in a particular election was rejected by white voters for reasons other than those which made 
that candidate the preferred choice of the minority group 
would seem clearly relevant in answering the question 
whether bloc voting bv white voters will consistently 
defeat minority candidates. Such evidence would suggest 
that another candidate, equally preferred by the minority 
group, might be able to attract greater white support in 
future elections.

I believe Congress also intended that explanations 
of the reasons why white voters rejected minority 
candidates would be probative of the likelihood that 
candidates elected without decisive minority support 
would be willing to take the minority's interests into 
account. In a community that is polarized along racial 
lines, racial hostility may bar these and other indirect 
avenues of political influence to a much greater extent 
than in a community where racial animosity is absent 
although the interests of racial groups diverge. Indeed, 
the Senate Report clearly stated that one factor that 
could have probative value in § 2 cases was "whether 
there is a significant lack of responsiveness on the part 
of elected officials to the particularized needs of the 
members of the minority group." S. Rep., at 29. The 
overall vote dilution inquiry neither requires nor 
permits an arbitrary rule against consideration of all 
evidence concerning voting preferences other than 
statistical evidence of racial voting patterns. Such a 
rule would give no effect whatever to the Senate Report's

29



repeated emphasis on "intensive racial politics," on 
"racial political considerations," and on whether "racial 
politics . . . dominate the electoral process" as one
aspect of the "racial bloc voting" that Congress deemed 
relevant to showing a S 2 violation.^ Id-., at 33-34.Similarly. I agree with Justice— White— that Justice 
Brennan's conclusion that the race of the candidate— 1^ always irrelevant in identifying racially, polarized 
voting conflicts with Whitcomb and is not necessary to the disposition of this case. Ante, at 83 (concurring).

Id. at 100-01 (O'Connor, J., concurring) (emphasis added).
The majority here nonetheless adheres to Justice Brennan s

position that causation is irrelevant in determining whether racial
bloc voting exists. Evidence of racial considerations is
acknowledged only as an "other" factor to be taken into account
under the totality of the circumstances: "After all, as Justice
O'Connor recognized in her Gingles concurrence, the Senate Report
accompanying the amendment to § 2 repeatedly emphasizes the
relevance of 'racial politics' and 'racial political
considerations' to the vote dilution inquiry." Majority op. at —
(citing Gingles. 478 U.S. at 101). The court does not quote
Justice O'Connor directly, and in the very passage cited she
asserts that a rule precluding consideration of "all evidence of
voting patterns . . . would give no effect whatever to the Senate
Report's repeated emphasis on 'intensive racial politics,' on
'racial political considerations,' and on whether 'racial politics
. . . dominate the electoral process' as one—aspect—of—the— 'racial
bloc voting' that Congress deemed relevant to showing a § 2
violation." Gingles. at 101 (quoting S. Rep. at 33-34) (emphasis
added); see also id. at 83 (White, J., concurring) ("Under [Justice
Brennan's] test, there is polarized voting if the majority of white

30



voters vote for different candidates than the majority of the 
blacks, regardless of the race of the candidates. I do not 
agree.") (emphasis added). Far from being an "other" factor of 
which the Senate made no mention, the extent to which voting 
patterns are attributable to causes other than race is an integral 
part of the inquiry into racial bloc voting, as five Justices in 
Ginales expressly held. The majority's failure to treat it as such 
is unjustified.4

4In defending its decision to ignore causation and confine its inquiry into racial bloc voting to the single question of whether 
"whites and blacks vote differently," the majority stresses Justice 
O'Connor's suggestion in Ginales that the causes of voting patterns also have probative value in assessing the responsiveness of 
elected officials, one of the factors considered as part of the
"totality of circumstances." See Majority op. at __. It is not,
however, an either/or proposition, with causation being relevant to 
one element of the vote dilution inquiry but not another. In 
addition to bloc voting, Justice O'Connor believed that the explanations of voting patterns were "also" relevant in determining 
whether "candidates elected without decisive minority support would 
be willing to take the minority's interests into account." 
Ginales. 478 U.S. at 100 (O'Connor, J., concurring). In linking 
racial bloc voting and official unresponsiveness in this manner, 
Justice O'Connor was merely repeating an observation made in Rogers 
v. Lodge. 458 U.S. 613 (1982), where the Court, like Justice 
O'Connor, identified bloc voting as the tendency to support 
candidates on the basis of race: "Voting along racial lines allows 
those elected to ignore black interests without fear of political 
consequences, and without bloc voting the minority candidates would 
not lose elections solely because of their race." Id. at 623 
(emphasis added).

As Justice O'Connor suggested, a minority group's prospects 
for future electoral success and the likelihood that elected 
officials will take account of their interests differ materially 
"in a community where racial animosity is absent although the 
interests of racial groups diverge." Ginales. 478 U.S. at 100. A 
tendency among whites to cast their votes on the basis of race presents a far more durable obstacle to the coalition-building upon 
which minority electoral success depends than disagreements over 
ideology, for, as Professor Ely observes, "prejudice blinds us to 
overlapping interests that in fact exist." John Hart Ely, 
Democracy and Distrust 153 (1980). Where, on the other hand,

31



As the Seventh Circuit recently noted in Baird v. Consolidated 
city of Indianapolis. 976 F.2d 357 (7th Cir. 1992), the agreement 
between Justice O'Connor and Justice White that a "system leading 
to the election of Black Republicans could not be dismissed as 
discriminatory" confirms the teaching of Whitcomb: "The Voting
Rights Act does not guarantee that nominees of the Democratic Party 
v/ill be elected, even if black voters are likely to favor that 
pgj-̂ -y / g candidates." Id. at 361. In roost areas where voting 
patterns are best explained by partisan affiliation, evidence that 
a majority of whites support one party will necessarily lead to the 
election of several minority candidates. (The contrary result 
might give rise to an inference that minorities did not enjoy full 
access to the party's slating process). Thus, Justice White and 
Justice O'Connor specifically charged that it was Justice Brennan's— 
refusal to consider the race of the candidates that was 
inconsistent with Whitcomb. See Ginqles, 478 U.S. at 101
(O'Connor, J., concurring) ("I agree with Justice White that 
Justice Brennan's conclusion that the race of the candidate is

voting patterns correlate with partisan affiliation or perceived 
interest, the open channels of communication facilitate a 
recognition of points of common ground that might otherwise go 
undetected. Elected officials in these communities cannot ignore 
minority interests because this group might be part of the winning 
coalition that votes them out of office. Given that the divergent voting patterns in this case are in most instances attributable to 
partisan affiliation rather than race, it is thus far from 
coincidental that the district court found no evidence of 
unresponsiveness on the part of elected officials in any of the 
contested counties. The irony, of course, is that the proposed 
subdistricting remedy provides most judges with the same 
opportunity to ignore minority voters' interests without fear of 
political reprisal they would possess if elections were in fact 
dominated by racial bloc voting.

32



identifying racially polarized votingalways irrelevant in 
conflicts with Whitcomb") .

This close tie between a consideration ot the race of the 
candidates and an inquiry into the causes of a minority-preferred 
candidate's defeat poses additional problems for the majority's 
rejection of causation, for even the majority must acknowledge that 
this Circuit has sided with Justice White and Justice O'Connor 
against Justice Brennan in regarding those elections pitting 
minority candidates against white candidates as the most probative 
of bloc voting. See, e.g.. citizens for a Better Gretna v. Clty._a£ 
Gretna, 834 F.2d 496, 503-04 (5th cir. 1987). This leaves the
majority in the untenable position of simultaneously maintaining 
that the race of the candidate is relevant but evidence of partisan 
voting is not. As Whitcomb and the various opinions in Ginqles 
demonstrate, a consideration of the race of the candidate is 
necessarily related to examination of the reasons for white voters' 
reluctance to support the minority-preferred candidate. Thus, in 
holding that the races in which a member of a minority group runs 
against a white candidate are most probative of racial bloc voting, 
the Gretna court cited the same "concerns about the dangers in 
advancing interest group politics or enforcing proportional 
representation," 834 F.2d at 503 (footnote omitted), identified by 
Justice O'Connor and Justice White as reasons for examining 
causation. 834 F.2d at 503 (footnote omitted). The majority's 
sole response to this analysis is the assertion that "we have never 
held or suggested . . . that for white bloc voting to be

33



significant, it must be motivated by racial animus." Majority op.
at __ (citing Westweao citizens for Better Gov't v. City of
Westwego. 946 F.2d 1109, 1118-1120 (5th Cir. 1991)). This single 
citation offers no support for this proposition, as we expressly 
noted in Westwego that "no non-racial explanation for the 
correlation between race and the selection of candidates has been 
offered." Westwego III. 946 F.2d at 1119 n.14.

In sum, the majority's failure to consider partisan 
affiliation as an explanation of divergent voting patterns is in 
flagrant contradiction with § 2 and the relevant Supreme Court and 
Fifth Circuit precedents. These authorities have established § 2 
as "a balm for racial minorities, not political ones— even though 
the two often coincide." Baird v. Consolidated City of 
Indianapolis. 976 F.2d 357, 361 (7th Cir. 1992) (citing Whitcomb). 
The majority appears to challenge this distinction between race and 
party, suggesting in various places that the Republican and 
Democratic Parties are mere proxies for racial and ethnic groups in 
Texas. In this view, the difference between supporting candidates 
on the basis of partisan affiliation rather than race is 
insignificant, for a Republican vote is a vote for whites and 
against minorities. I agree with the majority that courts should 
remain sensitive to this guestion, and should not be quick to 
dismiss plaintiffs' vote dilution claims in cases where divergent 
voting patterns correlate with partisan affiliation as "political 
defeats" not cognizable under § 2.

34



Here, the majority in effect treats party as a proxy for race 
by refusing to acknowledge the distinction between "partisan 
politics" and "racial vote dilution" that lies at the heart of § 2. 
My refusal to join the majority in equating race and party on the 
record before us is rooted in two considerations. First, white 
voters constitute the majority of not only the Republican Party, 
but also the Democratic Party, in several of the counties at issue. 
Even in those areas where the Republican Party is strongest, in 
Dallas County, for example, 30-40% of white voters consistently 
support Democrats, making white Democrats more numerous than all of 
the minority Democratic voters combined. These white Democrats 
have in recent years experienced the same electoral defeats as 
minority voters. If we are to hold, as the majority in effect does 
today, that these losses at the polls, without more, give rise to 
a racial vote dilution claim warranting special relief for minority 
voters, a principle by which we might justify withholding similar 
relief from white Democrats is not readily apparent.

I am also reluctant to treat party as a proxy for race in this 
case because a white partisan voter found herself not infrequently 
supporting a minority candidate rather than his white opponent. 
The undisputed evidence discloses that white voters in most 
counties, both Republican and Democratic, without fail supported 
the minority candidates on their party's ticket at levels equal to 
or greater than those enjoyed by white candidates, even where the 
minority candidate was opposed by a white candidate. In Dallas 
County, for example, Judge Wright received the greatest recorded

35



percentage of the white vote (77%) in her race against a white 
Democrat. To conclude on this record that political parties serve 
as proxies for race is simply unwarranted. Because the evidence in 
most instances unmistakably shows that divergent voting patterns 
among white and minority voters are best explained by partisan 
affiliation, I would hold that plaintiffs have failed to establish 
racial bloc voting in most, but not all, of the counties.

On the other hand, where the reluctance of white voters to 
support minority—preferred candidates cannot readily be attributed 
to partisan affiliation, I would hold that plaintiffs have 
established an inference, one to be tested by a consideration of 
the Zimmer factors, that race is at work. The majority argues that 
a rule providing that racial bloc voting exists only where 
divergent voting patterns are not caused by partisan affiliation 
imposes a requirement on plaintiffs that they prove that white 
voters' rejection of minority-preferred candidates is due to 
"racial animus." In one sense this is true, in that evidence of 
partisan voting is probative under § 2 as well as Whitcomb and 
Ginqles precisely because it tends to show that voters are not 
animated by racial considerations in selecting candidates.

In another sense, however, the majority's interpretation is 
incorrect. There are many other possible non-racial causes of 
voter behavior beyond partisan affiliation. A rule conditioning 
relief under S 2 upon proof of the existence of racial animus in 
the electorate would require plaintiffs to establish the absence of 
not only partisan voting, but also any other potential innocent

36



explanation for white voters' rejection of minority candidates. I 
think that a rule requiring proof that the failure of white voters 
to support a particular minority candidate was not attributable, 
for example, to her inexperience or her reputation as a "bad" 
judge, see the discussion of the court's treatment of Travis 
County, infra, would impose far too great a burden on plaintiffs. 
Such a requirement would make racial bloc voting both difficult 
and, considering the additional analysis that would be needed, 
expensive to establish. Moreover, it would facilitate the use of 
thinly-veiled proxies by permitting, for example, testimony that a 
Hispanic candidate was a "bad" judge to defeat a claim that white 
voters' refusal to support him was based on race or ethnicity. 
Finally, an inquiry into causation beyond partisan affiliation 
seems inconsistent with the fundamental division between "partisan 
politics" and "racial vote dilution" under § 2. For these reasons, 
I would limit our inquiry into racial bloc voting to determining 
whether divergent voting patterns are caused by partisan 
differences, with the appropriate inference being drawn from this 
finding.

The importance of the distinction in § 2 jurisprudence between 
illegal vote dilution and political defeat, between protecting 
racial minorities and fostering the work of political coalitions, 
has led some to question whether different racial or ethnic 
minority groups, usually blacks and Hispanics, should be permitted 
to form a single minority group within the meaning of the Voting 
Rights Act. League of United Latin American Citizens v. Midland

37



Indep. School District. 812 F.2d 1494, 1505-07 (5th Cir. 1987)
(Higginbotham, J., dissenting); Katherine I. Butler & Richard 
Murray, Minority Vote Dilution Suits and the Problem of Two 
Minority Groups: Can a 'Rainbow Coalition'—Claim the Protection .of 
the votinn Rights Act?. 21 Pacific L.J. 619, 641-57 (1990).
We have determined, however, that such suits are permissible where 
the evidence suggests that the two groups are politically cohesive, 
see, e.g., Midland I.S.D.. 812 F.2d at 1500-02, and I accept the 
authority of these decisions. At the same time, I do not believe 
that plaintiffs should be able to avoid their full effects. The 
defendants claim that the district court erred in refusing to 
consider elections pitting Hispanic and white candidates in Harris 
and Tarrant Counties, counties in which plaintiffs proceed on 
behalf of black voters only, but where the indisputable evidence 
showed that blacks and Hispanics were politically cohesive. I 
agree.

Blacks and Hispanics have joined forces for purposes of this 
suit in Midland, Lubbock, and Ector Counties. In these counties,
I would agree that white-Hispanic elections are relevant to show 
legally significant white bloc voting, because the Hispanic 
candidate provides the combined Hispanic-black minority with a 
viable minority choice. But the plaintiffs contend that where they 
represent only black voters, white-Hispanic elections in which the 
Hispanic candidate received the support of black voters are 
irrelevant. A difference in litigation strategy cannot support 
this distinction. Cohesion is a fact, not a strategic card to be

38



played at the caprice of a plaintiff. As we stated in Campos v._ 
City of Baytown. 840 F.2d 1240 (5th Cir. 1988), "if the statistical 
evidence is that Blacks and Hispanics together vote for the Black 
or Hispanic candidate, then cohesion is shown." Id. at 1245 
(footnote omitted). If blacks and Hispanics vote cohesively, in 
effect making them a single minority group, then elections with a 
candidate from this single minority group are elections with a 
viable minority candidate. The plaintiffs cannot have it both 
ways.

Plaintiffs contend that there is evidence is the record 
suggesting that blacks and Hispanics are not politically cohesive 
in Harris and Tarrant Counties. They do not tell us to which 
evidence they refer, and understandably so. The record shows that 
blacks and Hispanics were more cohesive in Harris and Tarrant 
Counties than they were in Midland and Ector Counties, where the 
plaintiffs represent both blacks and Hispanics and the district 
court found cohesion.

In Harris County, Taebel studied 46 elections in which he 
determined the percentage of black and Hispanic votes cast for the 
minority/winning candidate. In 35 elections the black and Hispanic 
vote percentages varied by less than 10%. Similarly, the levels of 
black and Hispanic support for the same candidate were within ten 
percentage points in 13 of the 17 elections studied in Tarrant 
County. In Midland County, by contrast, the black and Hispanic 
voting percentages differed by less than 10% in only 4 of the 8 
elections analyzed; in Ector County, this close correlation between

39



the preferences of Hispanic and black voters was shown in just 2 of 
10 elections. I do not dispute the district court's findings of 
cohesion in Midland, Ector, and Lubbock Counties, because in those 
counties a significant number of blacks and Hispanics usually voted 
for the same candidates. Ginqles. 478 U.S. at 56. But these 
findings compel the conclusion that there is also black-Hispanic 
cohesion in Harris and Tarrant Counties. The district court thus 
clearly erred in ignoring elections involving Hispanic and white 
candidates in these counties.

The majority attempts to salvage the plaintiffs' argument by 
recasting it in terms of appellate procedure. According to the 
court, the district court's refusal to consider the results of 
elections pitting Hispanic candidates against whites "was not 
properly raised before the district court and therefore is not
properly before us on appeal." Majority op. at __. The court
correctly notes that the defendants did not ask the district court 
to find that blacks and Hispanics were cohesive in Tarrant and 
Harris Counties, but that is not the nature of the claim they press 
here. Defendants do not challenge the lower court's failure to 
find that Hispanics and blacks were cohesive; rather, they argue 
that the district court committed legal error by excluding 
Hispanic-white elections in determining whether white bloc voting 
existed in Harris and Tarrant Counties. It is true that this claim 
is, as the majority suggests, "fact-based," in that the validity of 
the district court's exclusion of these elections turns on whether 
blacks and Hispanics are cohesive, but the defendants contend that

40



the evidence of cohesiveness is indisputable, a claim that is amply 
supported by the record and not contested by the majority. In sum, 
the court's rejection of defendants' claim is wholly unpersuasive 
and its refusal to consider white—Hispanic elections in Harris and 
Tarrant Counties is unjustified.

Finally, the majority's holding of no § 2 violation in Travis 
County, while upholdingthe district court's finding of dilution in 
all others, is worthy of special note. This illustrates the 
difficulties present in the case, for the majority must modify its 
test in order to avoid liability. The majority concludes that 
plaintiffs have failed to establish legally significant white bloc 
voting, Gingles's third factor. I cannot say with such confidence 
that plaintiffs did not satisfy the threshold test. Instead, I 
would hold that the plaintiffs failed to show dilution under the 
totality of the circumstances.

The majority departs from its previous analysis on three 
significant points. First, Travis County was one of only two 
counties where voter registration statistics could have been 
introduced, tending to prove that past discrimination hindered the 
ability of Hispanics to participate. The evidence showed that only 
38.5% of eligible Hispanic voters were registered to vote, a much 
lower rate than in Bexar County, the only other instance in which 
evidence tending to prove this Zimmer factor was offered. The fact 
that the majority could find that Hispanics enjoy an equal 
opportunity to participate in the political process in spite of 
this evidence betrays the court's analysis of other counties, where

41



these Zimmer factors often seem to have nearly dispositive weight
in the absence of any evidence of depressed minority participation.

Second, the majority has upheld the district court's 
determination and plaintiffs' argument that black plaintiffs are 
entitled to limit their proof to those elections involving black 
candidates and may exclude those elections pitting a Hispanic 
candidate against a white candidate, even where these Hispanic 
candidates are preferred by an overwhelming majority of black 
voters. In Travis County, however, where plaintiffs represent only 
Hispanics, the significance of a loss by a Hispanic candidate is 
discounted because a black candidate, who was not the Hispanic- 
preferred candidate, received a bare majority of the white vote. 
This analysis goes well beyond the approach I have urged, which 
would include elections involving candidates from a different 
minority group only upon a showing that blacks and Hispanics vote 
cohesively. The election of a black candidate who is not the 
choice of Hispanics in the end seems relevant because it tends to 
demonstrate that the voting preferences of whites are not 
attributable to racial considerations, a showing that I believe 
quite probative but one that the majority, at least in the other 
eight counties at issue, finds insignificant.5

5The majority contends that evidence that white voters 
supported a black candidate rather than a Hispanic candidate 
preferred by Hispanic voters instead suggests "'that another 
candidate, equally preferred by [Hispanics], might be able to 
attract greater white support in future elections.'" Majority op.
at __ (quoting Gingles. 478 U.S. at 100 (O'Connor, J. , concurring).
White voters' rejection of a Hispanic candidate in a Democratic 
primary cannot be explained by partisan affiliation. Since our 
analysis would change materially had white voters chosen to support

42



The majority's reliance on causation, intimated above, becomes 
unmistakable in its treatment of another election loss by a 
Hispanic judge. The court asserts that this loss is explained by 
"testimony indicating that the reason Gallardo lost is because he
was a 'bad judge.'" Majority op. at __(emphasis in original). As
in its reliance on the election of a black candidate to explain the 
defeat of a Hispanic candidate preferred by Hispanics, the court's 
analysis goes far beyond the position it has previously discarded. 
As I have indicated, our analysis of causation should be limited 
largely to an inquiry into whether divergent voting patterns among 
minorities and whites are attributable to partisan voting. A 
demonstration that minority and white candidates receive roughly 
equal levels of support from their party creates the inference that 
a minority group's inability to elect representatives of its choice 
is not attributable to race. On the other hand, a showing that 
white voters are less inclined to give their votes to the minority 
candidates on their party's ticket creates an inference, one to be 
tested by an analysis of the Zimmer factors, that race is at work. 
I would be quite reluctant to rely, as the majority does here, on 
anecdotal testimony concerning the characteristics of a particular 
candidate to establish that white voters were not motivated by

the white candidate instead of the black candidate, I would submit 
that this election is indicative of future success for Hispanic 
candidates among white voters only because it shows that whites' 
preferences are not determined by racial or ethnic considerations. 
In the absence of other reasons why white support for a black 
candidate who was not the choice of Hispanic voters suggests that 
Hispanic candidates "might be able to attract greater white support 
in future elections," the majority's repudiation of my reading of 
its analysis is inexplicable.

43



racial or ethnic considerations. There are several reasons for 
this reluctance, some of which have been addressed above, but the 
most important one is that the Supreme Court has authorized a 
consideration of partisan voting in Whitcomb and Ginqles and we 
should not be quick to stray from this mark.

As I stated, I agree with the majority that plaintiffs have 
not proven that they do not have an equal opportunity to 
participate in the political process and elect representatives of 
their choice in Travis County. That the court must employ an 
approach incorporating much of the analysis it has previously 
rejected to reach what it understands to be the right result would 
seem to provide ample reason by itself to question whether the 
approach used to find illegal vote dilution in the other eight 
counties at issue is the proper test.

Ill
In addition to severing racial discrimination and the Voting 

Rights Act, the majority errs by failing to weigh correctly the 
state's interest in defining the judicial office of district judge. 
As this panel previously recognized, see LULAC 1. 902 F.2d 293,
307-08 (5th Cir. 1990), vacated. 902 F.2d 322 (5th Cir. 1990) (en
banc), important reasons exist to link the electoral bases of 
district courts to their primary jurisdiction. The Supreme Court 
directed that on remand this interest would be weighed in 
determining whether a violation of the Act has occurred.

The majority flees this command with an over-the-shoulder 
characterization of the Supreme Court's opinion as containing

44



"isolated passages" "suggesting" that the state's interest will be 
weighed. Majority op. at — . This flight fails. The Court 
focused on this linkage, and its language belies the asserted
ambiguity:

rTIhe State's interest in electing judges on a district­
wide basis . . .  is a factor to be considered by the 
court in evaluating whether the evidence in a particular 
case supports a finding of a vote dilution violation in 
an election for a single—member office.

*  *  *

[Wle believe that the State's interest in maintaining an 
electoral system— in this case, Texas' interest in 
maintaining the link between a district judge's 
jurisdiction and the area of residency of his or her 
voters— is a legitimate factor to be considered by courts 
among the "totality of circumstances" in determining 
whether a § 2 violation has occurred. A State's justification for its electoral system is a proper factor 
for the courts to assess in a racial vote dilution 
inquiry, and the Fifth Circuit has expressly approved the 
use of this particular factor in the balance of 
considerations. See Zimmer v. McKeithen, 485 F.2d 1297,
1305 (CA5 1973), aff'd sub nom. East Carroll Parish
School Bd- v- Marshall. 424 U.S. 636, 96 S. Ct. 1083, 47 
L. Ed. 2d 296 (1976). Because the State's interest in
maintaining an at-large, district-wide electoral scheme 
for single-member offices is merely one factor to be 
considered in evaluating the "totality of circumstances, 
that interest does not automatically, and in every case, 
outweigh proof of racial vote dilution.

Houston Lawyers'. Ill S. Ct. at 2380-81 (emphasis in original).
No other court has had difficulty in reading this language.

All correctly understood the Court's decision and weighed the
state's interest in an electoral scheme in the totality of the
circumstances. See e.Q. Nipper v._Chiles, 795 F. Supp. 1525 (M.D.
Fla. 1992); Magnolia Bar Ass'n, Inc._v̂ _Lee, 793 F. Supp. 1386
(S.D. Miss. 1992) ; Southern Christian Leadership Conf._of Ala, v.
Evans. 785 F. Supp. 1469 (M.D. Ala. 1992). Commentators have also

45



recognized that Houston Lawyers7 directs courts to consider the
strength of the state's interest at the liability stage. "[T]he
Court recognized that in balancing the many factors in the totality
of the circumstances test, the state interest in districtwide
judicial elections may, in some cases, outweigh proof of racial
voter dilution." Mary T. Wickham, Note, Mapping the Morass
Application of Section 2 of the Voting Rights Act to Judicial
Elections. 33 Wm. & Mary L. Rev. 1251, 1285 (1992).

The majority sees the weighing of the linkage interest in the
liability determination as a radical reworking of the traditional
balancing test— which could not have been intended. I read the
Supreme Court to say what it means, and find nothing radical in
that meaning. The amended Act, like court decisions before and
after it, considers the totality of the circumstances.
Significantly, the Court in Houston Lawyers' cited Zimmer at page
1305, where we noted the significance of a strong, as opposed to
merely non-tenuous state policy:

Where it is apparent that a minority is afforded the 
opportunity to participate in the slating of candidates 
to represent its area, that the representatives slated 
and elected provide representation responsive to 
minority's needs, and that the use of a multi-member 
districting scherne is rooted in a strong state policy 
divorced from the maintenance of racial discrimination, 
Whitcomb v. Chavis, [cite!, would require a holding of no 
dilution.

485 F.2d at 1305 (citing Whitcomb v. Chavis. 403 U.S. 124 (1971))
(emphasis added). The Senate Report on the 1982 amendment to § 2 
endorsed both Zimmer and Whitcomb as parts of the pre-Bolden 
precedential standards which Congress intended to reinstate.

46



S. Rep. 417 at 20-21, 23, 27-28; reprinted in 1982 U.S. Code Cong.
& Admin. News at 197-98, 200-01, 205-07.

The majority refuses to hold that we must weigh the state's 
interest, see majority op. at — , and then proceeds to weigh it, 
finding it insubstantial. That effort is flawed, misapprehending 
both the role and importance of linking jurisdiction to electoral 
base. While a state's interest will not automatically preclude a 
§ 2 violation, Texas' substantial interest in preserving linkage 
can, at the least, outweigh marginal evidence of dilution.

Linking primary jurisdiction to the electoral base advances 
Texas' vital interest in judicial fairness and independence.6 Each 
district judge remains accountable to all voters within his or her 
jurisdiction, preserving "the fact and appearance of independence 
and fairness [which] are so central to the judicial task." LULAC 
II. 914 F.2d at 646 (Higginbotham, J., concurring); see also John 
L. Hill, Jr., Taking Texas Judges Out of Politics: An Argument for
Merit Election. 40 Baylor L. Rev. 339, 364 (1988) ("the very
perception of impropriety and unfairness undermines the moral 
authority of the courts"). Each judge acts alone, rather than in 
a collegial body, distinguishing this office from most elective 
positions. Thus, Texas' interest in district-wide elections goes 
beyond its interest in choosing officials a certain way. This

‘The assertion that this interest had its "genesis" in Chief 
Justice Phillips' testimony at trial is nonsense. Its actual 
genesis was the Texas Constitution of 1850, which first provided 
for district-wide election of district judges. See LULAC II. 914 
F.2d at 646 (Higginbotham, J., concurring). Nor is this interest 
claimed only by Texas. Both Florida and Alabama have asserted the 
interest in voting rights cases, see text infra at p. 41.

47



election scheme is an integral component of the structure and 
effectiveness of the state judiciary. See LULAC II, 914 F. 2d at 
649-51 (Higginbotham, J. , concurring). One member of the majority 
has twice previously agreed with this conclusion. See id. at 634 ; 
LULAC I. 902 F.2d at 294.

The substantiality of similar linkage interests in Florida and 
Alabama has recently been acknowledged. See Nipper v. Chiles, 795 
F. Supp. 1525, 1548 (M.D. Fla. 1992) (holding Florida's legitimate 
interest in linkage weighed against violation); Southern Christian 
Leadership Conf. of Ala, v. Evans. 785 F. Supp. 1469, 1478 (M.D. 
Ala. 1992) (holding Alabama's strong interest in linkage weighed 
against violation) . At least twenty-six other states currently 
elect judges of their principal trial courts.7 Twenty-two of them, 
like Texas, Alabama, and Florida, employ district-wide, at-large 
elections. Of the remaining four, North Carolina allows every 
elector within a judge's jurisdiction to vote on that judge by 
holding statewide elections for district courts. Louisiana and 
Mississippi only recently abandoned at-large judicial elections in 
order to end prolonged litigation. Only in Cook County, Illinois, 
have judges with county-wide jurisdiction been historically elected 
from electoral districts smaller than the county--and those courts

7These states are: Arizona, California, Georgia, Idaho, 
Illinois, Indiana, Kentucky, Louisiana, Michigan, Minnesota, 
Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, 
North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, 
Tennessee, Washington, West Virginia, and Wisconsin. Some of these 
states appoint some trial judges, while others hold retention 
elections after initial selection by contested election.

48



have hardly been exemplars of judicial propriety.1 On the whole, 
the overwhelming preservation of linkage in states which elect 
their judges strongly supports Texas' contention that linkage is 
integral to the judicial role and is not simply Texas' preferred 
method of election.

The Supreme Court on the same day it decided Houston Lawyers' 
observed that, in our federal system, "the States' power to define 
the qualifications of their officeholders [referring to judges] has 
force even as against the proscriptions of the Fourteenth 
Amendment." Gregory v. Ashcroft. Ill S. Ct. 2395, 2405 (1991).9 
Gregory described the state's interest in maintaining a capable 
judiciary as "legitimate, indeed compelling." % Id. at 2407. 
Likewise, Texas has at least a substantial interest in defining the 
structure and qualifications of its elective judiciary. It has 
done so by refusing throughout its entire history to allow the 
jurisdictional bases of its trial courts to fall short of its 
election boundaries. Texas as a distinct political entity is 
entitled to strive for all the judicial independence that an

*During the 1980's, federal indictments alleged that the 
Circuit Court of Cook County was a corrupt enterprise in RICO 
prosecutions of Chicago judges. See U.S. v. Glecier. 923 F.2d 496, 
498 (7th Cir.), cert, denied. 112 S. Ct. 54 (1991). Cook County 
Circuit Judges were the target of the FBI's Operation Greylord, 
which resulted in the fraud, bribery, and RICO convictions of many 
circuit court judges. See e.g. U.S. v. Holzer. 840 F.2d 1343 (7th 
Cir.), cert, denied, 486 U.S. 1035 (1988); U.S. v. Reynolds, 821 
F.2d 427 (7th Cir. 1987); U.S. v. Murphy. 768 F.2d 1518 (7th Cir. 
1985), cert, denied. 475 U.S. 1012 (1986).

’Contrary to the majority's assertion, the Court held that even 
if ADEA was based on Congress' powers under the Fourteenth Amendment rather than the Commerce Clause, this state interest must 
be respected. Gregory, 111 S. Ct. at 2405.

49



elected judiciary can deliver. If setting the age requirements for 
judges lies at "the heart of representative government," surely a 
state's explicit definition of the authoritative reach of its 
judicial offices is also a powerful interest. Id. at 2402.

The suggestion that Texas abandoned this interest by 
permitting county residents to decide to create districts smaller 
than counties is false. The opposite is true. Texas gave voters 
the power to reconsider the interest. Not a single county in Texas 
has voted to break the link between jurisdiction and electoral 
base— 254 distinct reaffirmations of policy. Even if a county were 
to subdivide, the state preserves the interest for all other 
counties. Cf. Mahan v. Howell. 410 U.S. 315, modified. 411 U.S. 
922 (1973). In Mahan, the Court recognized that although Virginia 
divided one county when reapportioning its state legislature, it 
retained its interest in preserving boundaries of all other 
political subdivisions. Id. at 327.

The majority mistakenly suggests that Texas' interest deserves 
little weight because it might be accommodated by some remedies. 
Dismissing linkage on the basis that it might be preserved by 
certain remedies simply fails to weigh that interest in determining 
whether a violation has occurred. The majority shunts 
consideration of the interest from the liability stage to the 
remedy stage, contrary to Houston Lawyers'. Plaintiffs have 
asserted that at-large election of district judges violates § 2. 
We must decide whether the state's substantial interest in that 
electoral scheme outweighs plaintiffs' proof of dilution.

50



In several contexts courts balance states' interests against 
undesirable results. In doing so, we test the validity of the 
asserted interest or goal by considering how it may be achieved. 
Here, Texas' interest is in linking judge's electoral bases to 
their jurisdiction. That goal may only be achieved by a district­
wide election system. The majority's suggestions to the contrary 
aj-e red herrings. Cumulative or limited voting are election 
mechanisms which preserve district-wide elections. Thus, they are 
not even remedies for the particular structural problem which the 
plaintiffs have chosen to attack.

Plaintiffs went to trial attempting to prove the Gingles 
elements. Those elements test whether, but for district-wide, at- 
large voting, minority preferred candidates would likely prevail. 
That is all the Gingles elements prove. They do not establish 
whether other features of an electoral scheme, such as anti-single 
shot rules or majority runoffs, cause dilution. Since plaintiffs 
tried this case on the basis of Gingles. they did not show that the 
absence of cumulative or limited voting within the at-large scheme 
diluted minority votes. The question is whether Texas' district­
wide election of trial judges is illegal. To answer that question, 
we must determine the weight of its linkage interest without regard 
to purported remedies which preserve the challenged at-large 
scheme. Plaintiffs cannot attack at-large voting as a violation of 
§ 2 and ignore the state's interest in preserving linkage— unique 
to trial judges— by insisting that they will embrace a remedy which 
preserves that scheme. This cannot be done if Houston Lawyers'

51



holds that the state's interest must be considered in the liability 
phase— which is precisely what it held.

The majority revives the argument that Texas has little 
interest in linking jurisdiction and electoral base because non­
resident litigants may appear before judges they did not elect. 
Nothing has changed about this claim since it was previously 
rejected. See LULAC II. 914 F.2d at 651 (Higginbotham, J. , 
concurring). The majority's efforts to distinguish jurisdiction 
from venue prove little, if anything. Texas venue law, as amended 
in 1983, has been influenced by both Spanish and English 
principles. Besides protecting defendants from inconvenient 
forums, the rules strive to ensure that local matters are tried in 
local courts.10 In addition to conducting trials, district judges 
have responsibilities such as selecting a county's grand jurors. 
Tex. Code Crim. Proc. Ann. art. 19.01 (Vernon Supp. 1993). Thus, 
despite the state-wide jurisdiction which the majority emphasizes, 
the district court remains essentially a territorial court focused 
upon the county or counties comprising its district.

Perhaps the majority understates the local nature of the 
district court by overlooking the area of Texas practice where it 
is most evident: criminal law. There domicile and hence 
convenience to the defendant have never been a consideration.

10See generally Joseph W. McKnight, The Spanish Influence on 
the Texas Law of Civil Procedure. 38 Texas L. Rev. 24, 36-40 
(1959); Charles T. Frazier, Jr., Note, Venue Procedure in Texas: 
An Analysis of the 1983 Amendments to the Rules of Civil Procedure 
Governing Venue Practice Under the New Venue Statute. 36 Baylor L. 
Rev. 241, 241-44 (1984) .

52



Although the state constitution permits a district court to try any 
Texas felony, Ex Parte Watson. 601 S.W.2d 350, 352 (Tex. Crim. App. 
1980) (en banc) , the Code of Criminal Procedure limits the reach of 
that jurisdiction. In criminal practice a charging instrument must 
establish that the district court's county is a proper venue. Tex. 
Code Crim. Proc. Ann. arts. 21.02(5), 21.21(5) (Vernon 1989). 
Since the propriety of venue goes to the authority of the court, it 
is "quasi-jurisdictional in nature." George E. Dix, Texas Charging 
Instrument Law: The 1985 Revisions and the Continuing Need for 
Reform. 38 Baylor L. Rev. 1, 71 (1986).“ But whether the area of 
practice is criminal, civil, or family law, the conclusion reached 
in the concurring opinion in LULAC II remains valid. "[T]he state 
recognized that elimination of [the] risk and appearance of bias 
was essential to the office it was creating by an elaborate set of 
rules controlling venue." 914 F.2d at 651 (Higginbotham, J. , 
concurring). If a Code of Judicial Conduct were alone sufficient 
to dispel the public's concern with "home cooking" and bias, there 
would be less need for venue rules. Instead, the district-wide 
election of judges joins with those rules to assure fairness and 
independence in the district courts.

“indeed, despite technical differences between jurisdiction 
and venue, Texas law commonly refers to the county in which a 
district court is located as its "jurisdiction." See, e.g. Hodge 
v. State. 527 S.W.2d 289, 292 (Tex. Crim. App. 1975) (holding that 
charging instrument need only allege the county as the place of the 
offense when "the court in which the offense is tried has county­
wide jurisdiction"); Tex. Code Crim. Proc. Ann. arts. 21.02(5) and 
21.21(5) (stating that indictments and informations must show that 
the offense occurred within the court's "jurisdiction").

53



Conclusion
The aggressive play in this case with Texas's judicial offices 

was as predictable as it is unwise. Federal courts were asked to 
do a political and legislative task and this panel responded with 
self assurance enjoyed only by officials steeped in the mythology 
that Courts are the sole arbiters of constitutional right and 
custom and consensus about those rights carry no sway. The image 
of the noble federal judge carrying out his task of protecting 
people from themselves is heady stuff indeed. That a state has 
throughout its history thought it essential to preserve linkage is 
of no moment . . .  of no weight and it is cast aside in a flood of 
legalisms. In doing so the majority proceeds, as we often do, with 
the certitude that judges and lawyers are the anointed defenders of 
constitutional values and liberties. True, as far as it goes but 
we know and admit in quieter moments that constitutional values 
rest on the broader foundations of consensus, and the genetic-like 
grip of generation after generation of understanding. The point is 
made by a look at the constitutional histories of the former Soviet 
Union and many South American countries with their beautiful 
documents unsupported by a culture of commitment to liberty. As
T.S. Eliot put it:

The general ethos of the people they have to govern . . .
determines the behavior of politicians.
Congress may read a new consensus and strike a new balance, as 

the representative branch locates a new sense. But when it fails 
to do so it cannot simply hand its task uncharged to the courts 
with little more than "here, you figure it out." Courts must

54



accept such assignments with caution, asking for clearer statements 
as faithful agents probing for their charge. Much can be said, but 
I need not pause here because we need not reach so far. I ask only 
that we be a bit more modest and not so bent on announcing new 
truths while draped with the hypocrisy that it is duty's call that 
we answer. We ought not cast aside the interests of Texas as 
little more than an ephemeral election rule in collision with 
voting rights. Its weight is substantial and the found 
"violations” are here more remote from the Voting Rights Act or 
other normative voting rule than any we have encountered.

Congress was on sound ground in explicating the Civil Rights 
Amendments, but it failed to grip the difficult choices in 
resolving the political choices confronting it in 1982. Instead of 
taking hold Congress lifted itself from the maelstrom in which it 
found itself by lifting the debate to a level of generality about 
election rights that sapped statutory clarity. The 1982 amendments 
to the Voting Rights Act gave the courts little help in defining 
the dilution it forbids. One thing is sure, Congress did not, 
because it could not, sever race from the voting rights inquiry. 
The majority in every practical way today does precisely that.

We are enjoined to make pragmatic assessments of the political 
realities in these voting cases. The majority confounds common 
sense with its pretense that partisan voting sheds no light while 
accepting its totals as proof of bloc voting. This despite the 
inescapable fact that partisan voting is the single most powerful 
explanatory variable in the data. Its glib dismissal makes this a

55



fairyland. As uncertain as our congressional instructions are, 
they surely did not contemplate the collapse of the Voting Rights 
Act into a partisan fray gleefully attended by federal judges, none 
of whom are of course political in any partisan way. When the 
Republic National Committee and the NAACP join hands in attacking 
at large districts surely we can be honest enough to observe that 
dilution of the voting rights of minorities has now become cover 
for political factions, coalitions and parties to gain advantage. 
This is politics as usual except it has now walked through the 
courthouse door and so far we haven't said they are in the wrong 
hall. It is time we do that.

The next step must be to vacate the panel opinion and take 
this case en banc. Having lost the compass of race the majority is 
unable to develop a meaning for even dilution. The result is that 
the majority has looked inward and what we see is their own display 
and sense of the result they prefer in this case. In their march 
to result, the powerful confluence of tradition and state 
sovereignty has no voice. I would have resolved this by the 
proposed opinion which is attached hereto as Appendix A.

56



APPENDIX A

This panel again turns to the Voting Rights Act and the 
election of state judges. In our first effort we held that the Act 
covers judicial elections but concluded that the election of state 
district judges in county-wide elections in Texas did not violate
§ 2. League of United Latin American Citizens v._Clements, 902
F. 2d 293 (5th Cir. 1990) (11 LULA C I") . We considered the history of
judicial elections in Texas and the office of district judge the 
court of general jurisdiction. Our study persuaded a majority of 
the panel that Texas had a special interest in linking the 
jurisdictional and elective base of the trial courts, an interest 
accented by unwavering support throughout Texas history. Finding 
no truly informing analogues for resolving such an attack on at- 
large voting supported by a unique state interest, we looked to the 
weighing constructs familiar to the act. We concluded that, as a 
matter of law, the state interest linking jurisdiction and elective 
base outweighed its potentially dilutive effect. LULAC 1, 902 F.2d 
at 308. The parties questioned only the at-large election of 
judges and have not questioned other elements of process for 
electing Texas district court judges.

A majority of this court sua sponte ordered reconsideration of 
the panel decision en banc. League of United Latin American 
Citizens v. Clements. 914 F.2d 620 (5th Cir. 1990) ("LULAC II").

I.

57



The en banc court held that § 2 of the Act did not apply to 
judicial elections, rejecting the contrary view of the panel.

The Supreme Court granted certiorari and reversed, holding 
that § 2 does apply to state judicial elections. Houston Lawyers' 
Ass' n v. Attorney General. Ill S.Ct. 2376 (1991). The Supreme 
Court also held Texas has an especial interest in linking the 
elective and jurisdictional bases of district judges. Houston 
Lawyers'. Ill S.Ct. at 2381. The Court did not agree, however, 
that this state interest outweighed its dilutive effect in all 
cases, as a matter of law. Rather, the Court held that outcomes of 
the balancing will be case-specific. It also held that the balance 
will be struck in an inquiry into the totality of the 
circumstances. Justice Stevens explained that the state interest 
in linkage was to be weighed in deciding "whether a § 2 violation 
occurred." Id. Justice Stevens made plain that assessing the 
linkage interest is part of the determination of liability and not 
remedy alone. It was at this juncture that the Supreme Court 
disagreed with the Department of Justice position, choosing to rest 
between the "matter of law" view of the concurring opinion and the 
"goes only to remedy" view of the Department of Justice.

On remand the en banc court in turn remanded to the panel. We 
have had the benefit of oral argument and additional briefing and 
now must decide whether the district court erred in holding that 
Texas' system of electing judges at-large in nine Texas counties 
violates § 2 of the Voting Rights Act.

58



This is nominally a single case with common legal issues. 
However, after setting the common legal standard, we face nine 
distinct factual patterns. We will examine the findings of the 
district court in each county because each has unique political 
histories and cultures. In doing so, we heed the Supreme Court's 
admonishments to look to the political realities.

On July 11, 1988, individual voters and organizations, 
including the League of United Latin American Citizens sued in 
federal district court alleging that Texas' system of electing 
state trial judges violated plaintiffs' federal rights in several 
Texas counties12 under § 2 of the Voting Rights Act and the U.S. 
Constitution. Texas voters elect their trial judges in county wide 
elections. A voter in Dallas County, for example, may vote for all 
of the trial courts of general jurisdiction in the county, although 
each candidate runs for a particular court within the county's 
judicial system.

Plaintiffs contend that this method of electing trial judges 
violates § 2 of the Voting Rights by impermissibly diluting the 
voting power of Hispanics and blacks. Plaintiffs proceed on behalf 
of different ethnic groups or combinations of ethnic groups in 
different counties. Depending on the county, they argue that 
Hispanic voters, black voters, or the combination of both Hispanic 
and black voters "have less opportunity than other members of the

12Plaintiffs originally challenged the election of district 
judges in 44 counties, but by trial winnowed their targets to the 
following nine urban counties: Harris County, Dallas County, 
Travis County, Tarrant County, Jefferson County, Ector County, 
Bexar County, Midland County, and Lubbock County.

59



electorate to participate in the political process and elect 
representatives of their choice."

The case was tried in September 1989 in the U.S. District 
Court for the Western District of Texas. On November 8, 1989, the 
district court issued its opinion, sustaining plaintiffs' claim in 
every county. The district court found that, in all nine counties, 
minority voters were geographically compact and voted cohesively 
for the same candidates and that these candidates were consistently 
defeated by a majority of white voters who voted as a bloc. These 
findings, according to the court, constituted a prima facie case of 
illegal vote dilution under Thornburg v. Ginqles, 478 U.S. 30, 106 
S.Ct. 2752 (1986).

The district court also found that, under the totality of the 
circumstances, this dilution violated § 2 of the Voting Rights Act. 
In all counties, the district court based its finding of dilution 
on five facts. These were (1) a general history of discrimination;
(2) underrepresentation of minorities on the district court bench;
(3) the majority run-off requirement in primary races; and (4) the 
prohibition against single-shot voting. In the five larger 
counties, the district court also found that the counties' large 
size could hinder minority electoral success. Finally, in Dallas 
County only, the district court found evidence of racial appeals in 
elections.

Opting to follow Part III(c) of Justice Brennan's opinion in 
Gingles. a part of the opinion that a majority of justices did not 
join, the district court ruled after trial that the cause of county

60



voting patterns was legally irrelevant. The district court decided 
to ignore fully developed evidence regarding voters' partisan 
affiliation— evidence pointing unerringly to the conclusion that 
partisan affiliation of candidates was the single most powerful
explanation of election outcomes.

In evaluating the totality of the circumstances, the district 
court gave little weight to the state's historical insistence on 
linkage. The district court held that any state interest in 
linkage could be protected under a system of electing judges from 
single-member districts. As we will explain, this both under­
valued and misapprehended the state interest.

The district court judgment declared that Texas' at-large 
system of electing judges in nine counties violated § 2 of the 
Voting Rights Act and enjoined future elections under an at-large 
system. The district court at the same time rejected the 
constitutional attack finding no intent to dilute minority votes by 
county-wide election of district judges.

The parties presented statistical studies of county voting 
patterns in both judicial and non-judicial elections as well as 
opinions and anecdotal evidence of local politics. Supporting data 
differed, although studies included many of the same elections. 
Defendants' expert witness, Dr. Taebel, sometimes analyzed 
elections with no minority candidate. Plaintiffs' experts, Drs. 
Brischetto and Engstrom, limited their studies to those elections 
with a minority candidate.

61



Plaintiffs, however, did not examine every election in which 
there were minority candidates. In counties where plaintiffs were 
proceeding on behalf of black voters only, plaintiffs studied only 
those elections in which black candidates had run and ignored those 
elections with Hispanic candidates. Likewise, in counties where 
plaintiffs were proceeding exclusively on behalf of Hispanic 
voters, plaintiffs examined only those elections in which Hispanic 
candidates had participated, ignoring those races with black 
candidates. Simultaneously, plaintiffs urged that blacks and 
Hispanics were members of a single cohesive voting group in Ector, 
Midland, and Lubbock Counties. Plaintiffs considered all elections 
in which a minority had been a candidate only in these three 
counties.

Both parties offered evidence that minority voters in each 
county voted cohesively and that the minority-preferred candidate 
was the Democratic candidate. There was also evidence that 
minority residence was sufficiently compact that a minority 
district could be drawn in every county.

II. General Legal Principles
A successful claim that an at-large election dilutes the votes 

of protected minorities under § 2 of the Voting Rights Act must 
first meet the three threshold criteria explained in Thornburg v. 
Ginales. 478 U.S. 30, 106 S. Ct. 2752 (1986): (1) the minority 
group in question is sufficiently large and geographically compact 
that it could constitute a majority in a single-member district; 
(2) the minority group is politically cohesive; and (3) the white

62



majority votes sufficiently as a bloc to cause it usually to defeat 
the minority's preferred candidate. Id. at 51, 106 S. Ct. 2766-67; 
Westweao Citizens for Better Gov't v. City of Westweqo, 872 F.2d 
1201, 1205-06 (5th Cir. 1989).

Proving the three Gingles factors, however, does not prove 
liability under S 2. Plaintiffs must further show that, under the 
"totality of circumstances," the members of the protected class 
"have less opportunity than other members of the electorate to 
participate in the political processes and to elect representatives 
of their choice." 42 U.S.C. § 1973(b); see also Monroe v. City of 
Woodville. 881 F.2d 1327, 1330 (5th Cir. 1989).

This inquiry into the "totality of circumstances" is guided, 
in part, by the nine criteria discussed in the Senate Judiciary 
Committee Report accompanying the 1982 amendment to the Voting 
Rights Act. These are "Zimmer factors." Drawn in large part from 
this court's opinion in Zimmer v. McKeithen, 485 F.2d 1297 (5th 
Cir. 1973) (en banc) aff'd on other ground sub nom., East Carroll 
Parish School Bd. v. Marshall. 424 U.S. 636 (1976), they consist of 
nine signals of diminished opportunity for political participation 
of the minority group and election of the representatives of their 
choice. As the Senate Judiciary Report makes clear, these Zimmer 
factors are not the exclusive measures of dilution under the 
totality of the circumstances. S. Rep. 417, at 29, reprinted in 
1982 U.S. Code, Cong. & Admin. News at 207.

The Zimmer factors guide the inquiry into whether the 
complaining minority group lacks "an equal opportunity to

63



participate in the political process and to elect candidates of 
their choice." Gingles. 478 U.S. at 44, 106 S.Ct. at 2763. 
Inquiry into the totality of the circumstances is more than 
mechanical "factor-counting" with its illusion of neutral 
decisionmaking. It is "a searching practical evaluation of the 
past and present reality" and "a functional view of the political 
process." Id. at 45. Its focus is always whether the minority 
group has an opportunity for political participation equal to that 
of other voters.

But describing the trip is far easier than making it. It 
becomes especially complicated when we consider elections for trial 
court judges. We have earlier explained and will not here again 
rehearse that the judicial office differs from other elective 
offices in that the "appearance of independence and fairness [is] 
so central to the judicial task." LULAC II, 914 F. 2d at 646 
(Higginbotham, J., concurring); see also Gregory v. Ashcroft, 111 
S.Ct. 2395, 2407 (1991) (discussing how the deliberately fostered 
independence of judicial offices makes them different from other 
elective positions). The Supreme Court recognized that Texas' 
special interest in linking elective and jurisdictional base of its 
trial court judges was a "legitimate factor" to be weighed among 
the totality of circumstances to determine liability. Houston 
Lawyers'. Ill S.Ct. at 2381.

Our task is to determine coherent means for weighing Texas' 
linkage interest considered as part of the totality of the 
circumstances. This task is made more difficult because the

64



traditional totality of circumstances analysis asks only whether 
there was dilution. Including the linkage interest in the § 2 
assessment changes the usual weighing process, since the state's 
interest is not a signal of dilution like the Zimmer factors. 
Instead, it is a factor to be balanced against such signals. We 
ask not only whether, under the totality of the circumstances, 
there was dilution but also whether such found dilution is 
sufficiently substantial to support a finding of liability, given 
the state's interest in linkage. In other words, the state's 
interest is weighed against proven dilution. Houston Lawyers'., Ill 
S.Ct. at 2381 (noting that linkage interest does not always 
"outweigh proof of racial vote dilution").

We must also review the district court's legal conclusion that 
evidence of the defeat of minority-preferred candidates because of 
partisan affiliation rather than race was not relevant. Finally, 
we must determine the universe of elections by which we test 
s u c c e s s  of the minority-preferred candidate. These preliminary 
legal questions are the foundation upon which any analysis of the 
district court's factual finding of dilution must be based. We 
will then apply these principles to the district court's factual 
findings on a county-by-county basis.

A. Relevance of Partisan Affiliation
At trial, defendants maintained that partisan affiliation 

rather than race of either the voters or the candidates caused the 
consistent defeat of the minority-preferred candidate. Citing to 
Justice Brennan's plurality opinion in Gingles, the district court

65



ruled after the trial that the cause of the voting patterns that 
led to the consistent defeat of the minority-preferred candidate 
was not relevant under Gingles.

Defendants maintain that this holding was erroneous. We 
agree. Both logic and the weight of authority make plain that the 
cause of racially polarized voting patterns can be relevant to the 
vote dilution inquiry. In particular, we hold that there is no 
illegal dilution of minority voting when polarized voting patterns 
are the product of partisan affiliation untainted by racial 
politics. We find in the 1982 amendments to the Voting Rights Act, 
their relation to earlier dilution jurisprudence, and the Supreme 
Court's decision in Gingles powerful support for the conclusion 
that § 2 does not prohibit electoral systems that allow the 
minority-preferred candidate to be defeated by partisan voting 
patterns unaffected by race. Proof of majority voting based on 
party affiliation prevents the showing of bloc voting required by 
Gingles.

Section 2 of the Voting Rights Act prohibits "denial[s] or 
abridgment[s] of the right of any citizen of the United States to 
vote on account of race or color. . . ." 42 U.S.C. § 1973 (a) 
(emphasis added). The provision by its terms requires a causal 
link between race and the electoral scheme's impediment to voters' 
equal participation in the political process. The Act does not 
reach inequality of participation not caused by ("on account of") 
race or color.

66



Our insistence that a nexus to race be maintained in applying 
§ 2 does not rest alone on a parsing of statutory language, 
although the Act's plain language alone is sufficient. Rather, we 
insist that application of § 2 cannot escape its racial tether 
because that tether restrains the court from constitutional 
difficulty. The remedial power of Congress under the Civil War 
Amendments is for wrongs they prohibit. So the line between 
interest group politics and dilution of votes on account of race is 
both statutory and constitutional. Then-Justice Rehnquist 
summarized these limits. City of Rome v. United States, 100 S.Ct. 
1548, 1577 (1980) (Rehnquist, J., dissenting); see also Oregon v. 
Mitchell. 400 U.S. 112, 152 (1970) (Harlan, J., concurring in part 
and dissenting in part).

Our task, then, is to locate the meaning of this link between 
race and inequality in political participation. We must decide 
whether this link is satisfied when the minority-preferred 
candidate consistently fails to win a majority of the white vote 
and consistently loses, if the losses were the result of partisan 
affiliation rather than racial politics. We conclude that such 
consistent defeat of the minority-preferred candidate cannot be "on 
account of" race, unless it is tied to racial bias in the 
electorate. This is the heart of § 2.
1. Whitcomb v. Chavis

In Whitcomb v. Chavis. 403 U.S. 124 (1971), the Supreme Court 
held that the at-large election of state representatives and state 
senators from a multi-member district, Marion County, did not

67



violate the Equal Protection Clause of the Fourteenth Amendment. 
Black residents in one part of Marion County, referred to as the 
"ghetto" by the Whitcomb Court, voted heavily for the Democratic 
Party's candidates; however, as the rest of the County voted for 
the Republican candidate, the "ghetto's" preferred candidate was 
defeated in four out of five elections between 1960 and 1968. The 
Whitcomb plaintiffs maintained that, if the county were re­
districted, the preferred candidate of the minority voters would 
win more frequently.

Justice White, writing for five members of the Court, rejected
this challenge to the multi-district system. The Whitcomb Court
noted that the Democratic Party regularly slated candidates
"satisfactory to the ghetto" but that the Democratic Party lacked
the votes necessary to prevail frequently in the county's general
elections. Whitcomb. 403 U.S. at 151-52. The Court further noted
that both political parties were open to minority voters and
candidates and that there were no impediments to minority
participation in primaries, voting registration, or other aspects
of elections. The Court, therefore, concluded that

the failure of the ghetto to have legislative seats in 
proportion to its population emerges more as a function 
of losing elections than of built-in bias against poor 
Negroes. The voting power of ghetto residents may have 
been 'cancelled out' as the District Court held, but this 
seems a mere euphemism for political defeat at the polls.

Id. at 153. According to the Whitcomb Court, "[t]he mere fact that
one interest group or another . . . has found itself outvoted and
without legislative seats of its own provides no basis for invoking
constitutional remedies where, as here, there is no indication that

68



this segment of the population is being denied access to the 
political system." Id. at 154-55. The Court, therefore, rejected 
the proposition that "invidious discrimination . . .  results when 
the ghetto, along with all other Democrats, suffers the disaster of 
losing too many elections." Id. at 153 (emphasis added).

It bears emphasis that in Marion County there was inevitably 
a high correlation between black votes and party votes. There was 
no suggestion in Whitcomb that such raw correlations supported the 
idea that votes for Democratic candidates were proxies for racial 
interests. Nor did the Whitcomb Court dispute the findings of the 
three-judge panel— that black residents within the "ghetto" 
suffered from high unemployment, high levels of welfare assistance, 
poor housing, and other indicia of poverty. Whitcomb, 403 U.S. at 
132; Chavis v. Whitcomb. 305 F.Supp. 1364, 1376-81 (S.D. Ind. 
1969) . The Court nevertheless found no dilution. The clear 
implication of Whitcomb, therefore, is that consistent defeat of 
minority-preferred candidates as a result of polarized voting, even 
when combined with poverty and other lingering effects of past 
discrimination, does not suffice to show illegal dilution, when 
such defeat is the result of partisan competition between parties 
that are fully open to members of all races.
2. 1982 Amendments to 5 2 of the Voting Rights Act

According to the Senate Judiciary Committee Report, the 1982 
amendments to the Voting Rights Act enacted the "results test" 
contained in White v. Regester. 412 U.S. 755 (1973) and Zimmer v. 
McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd on other

69



around sub nom.. East Carroll Parish School Bd. v. Marshall. 424
U.S. 636 (1976). Congress understood Whitcomb to apply the 
"White/Zimmer" results test. S. Rep. 417 at 19-21, 30 (referring 
to the results test in "Whitcomb. White. Zimmer, and their 
progeny"), reprinted in 1982 U.S. Code Cong. & Admin. News at 196- 
98, 207. The Judiciary Committee pointed to the at-large systems 
upheld in Whitcomb to refute contentions by opponents of the 1982 
amendments that its results test would require the automatic 
invalidation of at-large election systems. S. Rep. 417 at 33, 
reprinted in 1982 U.S. Code Cong. & Admin. News at 211.

We are not persuaded that § 2, as amended by the 1982 
amendment and read in the light of Whitcomb, prohibits at-large 
districts in which the minority-preferred candidate is defeated by 
the voters' partisan affiliation. Section 2 was intended to 
prohibit electoral systems that lead to "discriminatory results." 
The term is best understood in light of § 2's prohibition on 
electoral schemes that impede minority voters' political 
participation "on account of race or color." See Solomon v. 
Liberty County. 899 F.2d 1012, 1021-1037 (11th Cir. 1990) (Tjoflat, 
J., concurring).

Under the results test, consistent defeat of minority- 
preferred candidates alone will not establish that minority voters 
are deprived of an equal opportunity to choose representatives on 
account of race. Such consistent defeat, by itself, is not the 
"discriminatory result" prohibited by § 2. If it were, the 1982 
amendments to § 2 would have abandoned the law of Whitcomb.

70



The legislative history of the 1982 amendments indicate that 
voters' race-conscious voting is relevant to the determination of 
the statute's required nexus to "race or color." The Judiciary 
Committee's report repeatedly refers to the need to prevent "racial 
politics" and "racial political considerations" from interfering 
with minority voters' equal opportunity for political 
participation. See S. Rep. 417 at 33, reprinted,_in 1982 U.S. Code 
Cong. & Admin. News at 211; Solomon, 899 F.2d at 1027-32 (minority 
voters are denied "equal opportunity to participate meaningfully in 
elections" in "communities where racial politics . . . dominate the 
electoral process"); United States v. Marengo County, Comm'n, 731 
F.2d 1546, 1567 (11th Cir. 1984) ("section 2 is intended not to
create race-conscious politics, but to remedy it where it already 
exists") (emphasis added). "Racial politics" implies racially 
conscious politics. It does not include politics in which minority 
voters only fail to achieve maximum feasible success because they
were outvoted by other interest groups.

The 1982 amendment responded to City of Mobile v.— Bolden, 446 
U.S. 55, 100 s.ct. 1490 (1980). Its overarching purpose was to
eliminate Bolden's requirement that plaintiffs prove that 
legislators intended to discriminate when they enacted or 
maintained a challenged electoral system. With the 1982 amendment, 
an electoral system cannot escape § 2 by innocent birth if its 
result is to dilute voting power "on account of race or color," but 
the "on account of race or color" language remained a part of the 
Act.

71



It is suggested that this smuggles the banned intent into our 
analysis. We disagree. Rather, we are persuaded that this is the 
meaning of the plain language of the Act as amended. Under the 
1982 amendments the state's intent in creating or maintaining an 
electoral system is not controlling. Jones v. City of Lubbock, 727 
F.2d 364, 378 (5th Cir. 1984) (purpose of 1982 amendments was to 
"prohibit electoral practices and procedures that created 
discriminatory results even though the responsible government body 
had not installed or maintained the electoral practice or procedure 
in order to discriminate") (emphasis added); see also S. Rep. 417 
at 27 (1982 amendment designed to "make clear that plaintiffs need 
not prove a discriminatory purpose in the adoption or maintenance 
of the challenged system or practice in order to establish a 
violation" (emphasis added)), reprinted in 1982 U.S. Code Cong. & 
Admin. News at 205. Nowhere in the statute or its legislative 
history is there any indication that voters' racial prejudice is 
not relevant to voting patterns. Indeed, the testimony by 
supporters of the "results" test suggest that "private
discrimination" is central to the issue of whether there is illegal 
dilution under § 2. See. e.g. . Hearings on the Voting Rights Act 
Before the Subcomm. on the Constitution of the Senate Comm, on the 
Judiciary. 97th Cong., 2nd Sess. 1367-68 (1982) (statement of Drew 
Days, Associate Professor of Law, Yale University) (§ 2's result 
test would operate "where a combination of public activity and 
private discrimination have joined to make it virtually impossible

72



for minorities to play a meaningful role in the electoral process") 
(emphasis added).

The Zimmer factors, incorporated into the dilution analysis by 
the Senate Judiciary Committee's report, are directly concerned 
with the cause of voting patterns. One of the Zimmer factors 
concerns "whether political campaigns have been characterized by 
overt or subtle racial appeals"; another is the "extent to which 
members of the minority group have been elected to public office." 
Both are relevant because they shed light on the political climate 
of the community— that is, the likely causes of voters' behavior.

Success of minority candidates goes directly to whether voters 
are influenced by race. As the facts of this case disclose, the 
minority candidate is not always the preferred candidate of the 
minority group. Therefore, the success of minority candidates must 
be relevant beyond showing that minority voters elect candidates of 
their choice. The success of minority candidates is significant in 
part because it indicates that white voters' racial bias is not 
excluding a candidate even when the minority-preferred candidate 
loses. Significantly, this Zimmer factor, directly relevant to the 
"on account of race" limits of the statute, is the only factor 
actually mentioned as probative in the text of the statute itself. 
3 . Thornburg v. Ginqles

Thornburg v. Ginqles. 478 U.S. 30, 106 S.Ct. 2752 (1986), is 
the Supreme Court's most detailed interpretation of § 2 as amended 
in 1982. Plaintiffs maintain that voters' motivations are not

73



relevant to the vote dilution inquiry under Gingles. This asks too 
much of Gingles. Of the four opinions in Gingles, only Justice 
Brennan's plurality opinion concluded that causation was not 
relevant to the ultimate question of illegal racial vote dilution. 
Gingles, 106 S.Ct. at 2772-78. Five Justices, writing separately, 
refused to join this part of Justice Brennan's opinion.

Justice White's brief opinion illuminates the relevance of 
partisan affiliation. Justice White notes that, in a district that 
is 60% white and 40% black, if six white and two black Republicans 
run against six white and two black Democrats, and all of the 
Republicans win, then, under Justice Brennan's analysis, there 
would be a likely § 2 violation, if black voters voted Democratic 
and were geographically compact. However, Justice White states 
that:

[t]his is interest-group politics rather than a rule 
hedging against racial discrimination. I doubt that this 
is what Congress had in mind in amending § 2 as it did, 
and it seems at odds with the discussion in Whitcomb v . 
Chavis. 403 U.S. 124, 149-160, 91 S.Ct. 1858, 1872-1878,
29 L.Ed.2d 363 (1971).

Id. at 2783. Justice O'Connor, writing for herself and three other 
Justices, agreed with Justice White that the race of the candidate 
is relevant to the finding of racial vote dilution. Id. at 2792. 
Justice O'Connor stated that the presence or absence of racial 
hostility among voters is relevant to the vote dilution inquiry, 
because such bias was relevant to determining whether minority 
voters could influence officials for whom they did not vote. 
Crucial to Justice O'Connor's analysis is the premise that minority 
voters can have influence even if their preferred candidates lose,

74



if "other indirect avenues of political influence" are not barred 
by racial animosity in the community. Id.

The majority of Justices in Gingles, in short, took the 
position that both the race of the candidate and the voters' 
motivations were relevant to the inquiry into racial vote dilution. 
As Justice O'Connor points out, evidence that white voters reject 
minority-preferred candidates for reasons other than race precludes 
a showing of racial bloc voting by whites. Id. Moreover, Justice 
White's opinion implies that, where the minority-preferred 
candidate loses the white vote because of partisan affiliation, and 
the white voters give their support to black candidates of the 
white voters' preferred party, then the defeat of the minority- 
preferred candidate is not the result of illegal vote dilution but 
rather is the result of interest-group politics. This division of 
the Court cuts deep, reflecting quite different visions of voting 
rights and their statutory treatment. The division also reflects 
fundamentally different political views of factions and our 
constitutional arrangement for accommodating their simultaneous 
demands for fluidity and fixity.

We find that the law before the 1982 amendments of § 2, the 
amendments themselves, and Ginqles support the conclusion that 
racial vote dilution does not occur when the minority-preferred 
candidate is defeated by partisan affiliation and not "on account 
of race or color." In the structure erected by Ginqles. we find 
that proof of majority voting based on partisan voting patterns 
unaffected by race precludes a finding of the third prerequisite:

75



Thewhite bloc voting to defeat minority-preferred candidates, 
black voter who supports a losing Democratic candidate in a county 
where the majority of voters are Republicans is in precisely the 
same position as the white Democratic voter in such a county. If 
the white Democratic voter is not the victim of a racially 
discriminatory result, then it is impossible to see why the black 
voter is. Both suffer an identical "political defeat at the 
polls," not "built-in bias" against a racial group. Whitcomb, 403 
U.S. at 153. Both are defeated because they belong to the weaker 
political party. Creating safe districts to protect the black 
Democrat but not the white Democrat subverts the very idea of 
political equality that § 2 is supposed to protect. See Alan 
Howard & Bruce Howard, The Dilemma— of— the— Voting— Rights— Act—  
Recognizing the Emerging Political Equality Norm, 83 Colum. L. Rev. 
1615, 1618-19 (1983) ("Giving some groups safe districts and
proportional representation and not others thus necessarily treats 
the groups, and individual voters, unequally."); see also Whitcomb, 
403 U.S. at 154 (questioning whether "poor Negroes of the ghetto 
[are] any more underrepresented than poor ghetto whites who also 
voted Democratic and lost") . "The mere fact that one interest 
group or another . . .  has found itself outvoted and without 
legislative seats of its own" provides no basis for finding illegal 
racial dilution where "there is no indication that this segment of 
the population is being denied access to the political system. 
Whitcomb. 403 U.S. at 154-55.

76



Section 2 was not enacted to create safe districts for 
political parties. It was intended to prevent minority voters from 
being shut out of interest group politics by race or color. 
Racially influenced voting presents a unigue obstacle to coalition- 
building, different in kind from disagreement over ideology or 
interest. As one commentator has observed, "prejudice is a lens 
that distorts reality. We are a nation of minorities and our 
system thus depends on the ability and willingness of various 
groups to apprehend those overlapping interests that can bind them 
into a majority on a given issue; prejudice blinds us to 
overlapping interests that in fact exist." John Hart Ely, 
Democracy and Distrust 153 (1980). Where the normal interplay of 
contending factions is untainted by "racial politics," and there 
are no barriers preventing black voters from joining and fully 
participating in all major political parties, forming coalitions, 
and taking their chances at the polls, there is no "discriminatory
result" within the meaning of § 2.

We do not ignore the concerns of Justice Brennan's plurality 
opinion in Gingles that apparently race-neutral reasons for the 
minority-preferred candidates' defeat may be a proxy for race. 
Political party can become a proxy for race when voters support or 
oppose a political party because of their bias against racial or 
ethnic groups. See Thomas B. Edsall & Mary D. Edsall, Chain
Reaction: The Impact of Race. Rights,--and— Taxes— on— American
Politics 137-53 (1991). The Act is violated when a minority-
preferred candidate is defeated by the bias of white voters

77



directed toward the candidate or his constituency. Describing the 
election in ostensibly race-neutral terns of partisan affiliation 
will not change the result.

Such a proxy, however, is not signaled by raw statistical 
correlation of partisan affiliation to race. Of course, socio­
economic characteristics may have some correlation to race. 
Ginoles, 106 S. Ct. at 2776. This correlation may lead members of 
minority groups to give stronger support to certain political 
platforms than non-members give. As a result, a majority of 
minority voters may support a political platform opposed by a 
majority of non-minority voters, and the minority-preferred 
candidate may be consistently defeated.

The partial correlation of differences in political interest 
or opinion with race, however, does not demonstrate that parties 
are proxies for racial groups. Partisan affiliation may only 
imperfectly map membership in racial groups. For instance, in 
several of the counties, the Democratic Party has the support of a 
large majority of black voters, while the Republican Party has the 
support of most white voters. However, about 30%-40% of the white 
voters also support the Democratic Party. The Democratic Party, 
therefore, does not represent interests uniquely or even mainly 
shared by black voters, and it is not a proxy for a distinctively 
black agenda. At best, this correlation is evidence only that the 
Democratic Party here represents a coalition supported by black 
voters, among others.

78



Opposition to such an interest group coalition is a far cry 
from opposition to a candidate on account of race or color. See 
Terrazas v. Clements. 581 F. Supp. 1329, 1351-52 (N.D. Tex. 1984) 
(three—judge panel) (noting that "[t]he testimony . . .  suggested 
that partisan affiliation has, to some extent, eclipsed the 
importance of [racial] bloc voting in Texas politics"). Such 
opposition is no more than the coalition building that has been 
part of the politics of this nation since its founding. In sum, 
proof that the minority-preferred candidate is defeated because he 
adopts a political platform opposed by a majority of voters is not 
proof that the defeat was the result of racial vote dilution 
prohibited by § 2.

But, it is urged, plaintiffs may face insuperable barriers in 
trying to prove the cause of voting patterns. Gingles, 106 S.Ct. 
at 2774. As Justice Brennan noted in Ginqles, the 1982 amendments 
were enacted in large part to alleviate the difficulty of proof 
faced by plaintiff alleging vote dilution under Bolden. Congress 
made some things clear, including the fact that plaintiffs need not 
produce a "smoking gun" of racial bias in the original adoption or 
subsequent maintenance of an electoral system for their prima facie 
case of illegal vote dilution. See Abigail M. Thernstrom, Whose 
Votes Count? Affirmative Action and Minority Voting Rights 120-22
(1987).

We impose no new burden of producing a "smoking gun" on the 
plaintiffs. As always, the district court may infer illegal racial 
dilution with some circumstantial evidence of racially influenced

79



voting by the electorate. Such circumstantial evidence may include 
(but is not limited to) proof of the relevant Zimmer factors—  
racial appeals, non-responsiveness of elected officials, history of 
discrimination, and lack of success of minority candidates. The 
consistent and predictable refusal of white voters to support 
minority candidates would also be relevant to an inference of race­
conscious politics, as would extremely close correlation of 
partisan affiliation with race of voters.

Where the factfinder infers racial politics from some 
combination of these facts and also finds that such race-conscious 
voting interacts with some electoral practice to prevent minority 
voters from having an equal opportunity to elect representatives of 
their choice, we will not second-guess the district court s 
inference of racial vote dilution. Likewise, the consistent and 
predictable willingness of white voters to give to minority 
candidates of the voters' preferred party support equal or greater 
than the white voters give to white candidates of the same party is 
powerful evidence that party rather than race determines voting 
patterns.

B . Texas' Interest in Defining the Judicial_Office
By making coterminous the elective and jurisdictional bases of 

trial courts, Texas serves uniquely judicial values of fairness and 
independence. At-large elections insure that trial court judges 
are each electorally accountable to all of the residents within the 
area of their primary jurisdiction. This linkage of jurisdictional 
and elective bases avoids the appearance, if not the fact, of

80



favoritism— protection of their voting constituents— to the 
prejudice of the other litigants who frequently appear before them.
LULAC IJ, 914 F.2d at 649—51 (Higginbotham, J. concurring) . By 
insuring that judges are accountable to a broad base of all people 
within their primary jurisdiction rather than one narrow 
subsection, at-large elections protect "the fact and appearance of 
independence and fairness [which] are so central to the judicial 
task." Id. at 646. Presumably for that reason the overwhelming 
majority of states which select trial judges by election share this 
structure and electoral scheme. By contrast, the systemic 
incentives of subdistricting "diminish the appearance if not the 
fact of . . . judicial independence— a core element of a judicial 
office." Id. at 650.

In Houston Lawyers'. the Supreme Court agreed. Justice 
Stevens noted that Texas' linkage interest is "a legitimate factor 
to be considered by courts among the 'totality of circumstances' in 
determining whether a § 2 violation has occurred." Houston 
Lawyers'. Ill S.Ct. at 2381. Houston Lawyers! disagreed that this 
"linkage" interest should defeat liability "automatically, and in 
every case." Rather, the Court held that the interest is one 
consideration that must be weighed against other relevant factors 
to ascertain whether the interest "outweigh[s] proof of racial vote 
dilution." Id. See also Nipper v. Chiles, 795 F. Supp. 1525, 1548 
(M.D. Fla. 1992) (holding that "a state's interest in maintaining 
an electoral system is a legitimate factor to be considered . . . 
in the liability phase of a section two case").

81



Therefore, while the Supreme Court rejected our contention 
that the linkage interest in all cases defeated liability under 5 2 
as a matter of law, the Supreme Court endorsed our position that 
the linkage interest is relevant to a determination of liability. 
Indeed, by noting that the linkage interest does not 
"automatically, and in every case, outweigh proof of racial vote 
dilution," the Court held that the state interest could outweigh 
what would otherwise be proof of illegal dilution and thus 
foreclose liability.

1. The Weight of Texas' "Linkage" Interest
The issue we face is determining when the linkage interest 

will outweigh other factors and defeat liability under § 2. In 
resolving this issue, we reject the polar extremes of the parties. 
The State of Texas and at least one defendant maintain that the 
interest defeats liability in every case, regardless of the other 
circumstances in the totality. The Supreme Court rejected this 
position when it held that the linkage interest does not 
"automatically, and in every case, outweigh proof of racial vote 
dilution." Houston Lawyers'. Ill S.Ct. at 2381.

We also reject the position of plaintiffs that the linkage 
interest can never defeat liability under the totality of the 
circumstances if "illegal" dilution is otherwise established. The 
plaintiffs maintain that only the absence of a compelling state 
interest in an electoral scheme is relevant to liability. 
According to plaintiffs, such an absence "is an optional factor" 
that plaintiffs can use to support a finding of illegal dilution;

82



however, according to plaintiffs, the existence of a compelling 
interest can never defeat liability that is otherwise established 
under the totality of the circumstances. This position was also 
rejected by the supreme Court. This state interest is to be 
weighed as part of the totality of the circumstances. Houston 
Lawyers'. Ill S.Ct. at 2381.

Plaintiffs urge that the Zimmer factor of non-tenuous state 
policy is among the least important of the factors for determining 
dilution and cite Jones v- City of Lubbock, 727 F.2d 364, 383 (5th 
Cir. 1984), and United States v. Marengo County Comm'_n, 731 F.2d 
1546, 1571 (11th Cir. 1984), in support of this contention. These 
decisions state only that defendants cannot defeat liability by 
using the non-tenuous policy justification of an electoral scheme 
to prove that scheme "does not have a discriminatory intents 
Marengo County. 731 F.2d at 1571. See also Terrazas v. Clements, 
581 F. Supp. at 1345 n.24 ("In the case of tenuousness, the lesser 
weight is consistent with the change in emphasis from intent to 
results. The principal probative weight of a tenuous state policy 
is its propensity to show pretext" (emphasis added)).

The plaintiffs' argument misses the point. The linkage 
interest is not urged as a non-tenuous policy to prove there was no 
discriminatory intent in adopting or maintaining the at-large 
election system. Rather, linking electoral to jurisdictional base 
is relevant because it serves objectively substantial interests. 
The plaintiffs confuse the inquiry into whether an interest is 
substantial with an inquiry into whether an interest is non-

83



tenuous. Proof of a merely non-tenuous state interest discounts 
one Zimmer factor but cannot defeat liability. It does not follow, 
however, that proof of a substantial state interest cannot defeat 
liability. As we have explained, the Voting Rights Act largely 
codifies Fourteenth Amendment jurisprudence embodied in White 
Reaester. 412 U.S. 755 (1972). Jones, 727 F.2d at 379-80. The 
substantiality of the state's interest has long been the 
centerpiece of the inquiry into the interpretation of the Civil War 
Amendments and their interplay with the civil rights statutes.

Having rejected both poles of the argument— that the linkage 
interest either always or never defeats § 2 liability, we turn to 
when the linkage interest precludes a § 2 vote dilution violation. 
The weight of Texas' interest is virtually assigned by a Supreme 
Court decision handed down on the same day that the Supreme Court
decided Houston Lawyers'. In Gregory v._Ashcroft, 111 S.Ct. 2395,
2404 (1991) , the Supreme Court held that the Age Discrimination in
Employment Act does not apply to judicial offices in Missouri. The 
Court noted that "the authority of the people of the States to 
determine the qualifications of their most important government 
officials . . . '"lies at the heart of representative
government."'" Id. at 2402 (quoting Bernal v. Fainter, 467 U.S. 
216, 221 (1984)). Gregory noted that "the States' power to define 
the qualifications of their officeholders has force even as against 
the proscriptions of the Fourteenth Amendment." Id. at 2405. To 
protect this power to define the judicial office, Gregory required 
a clear statement from Congress for an override of qualifications

84



imposed by the State for important state government office. Id. at 
2406.

"The people of Missouri have a legitimate, indeed compelling, 
interest in maintaining a judiciary fully capable of performing the 
demanding tasks that judges must perform." Id. at 2407. If that 
interest is compelling, the people of Texas have at the very least 
a substantial interest in defining the structure and qualifications 
of their judiciary. Linking elective and jurisdictional bases is 
a key component of this defining effort. That the Texas interest 
in linkage of electoral and jurisdictional base is substantial 
cannot then be gainsaid.

Our confidence in this conclusion is bolstered by the 
recognition and pursuit of the linkage interest in other states. 
Courts have recognized the legitimacy and substance of similar 
linkage interests in Florida and Alabama. See Nipper—v..— Chi1es, 
795 F. Supp. 1525, 1548 (M.D. Fla. 1992); Southern Christian 
Leadership Conf. of Ala, v. Evans, 785 F. Supp. 1469, 1478 (M.D. 
Ala. 1992). Of the twenty-nine states which elect their principal 
trial court judges, including Texas, Alabama, and Florida, twenty- 
five employ district—wide elections.13 Two others, Mississippi and 
Louisiana, only recently abandoned the link between jurisdiction 
and electoral base in order to settle prolonged litigation. The

nThose states are Alabama, Arizona, California, Florida, 
Georgia, Idaho, Indiana, Kentucky, Michigan, Minnesota, Montana, 
Nevada, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, 
Pennsylvania, South Dakota, Tennessee, Texas, Washington, West 
Virginia, and Wisconsin. Some of these states appoint some trial 
judges, while others hold retention elections after initial 
selection by contested election.

85



overwhelming preservation of linkage in states which elect their 
trial court judges demonstrates that district-wide elections are 
integral to the judicial office, and not simply another electoral 
alternative.

Thus we note now, as we noted in LULAC II. that the decision 
to make jurisdictional and elective bases coterminous is more than 
a decision about how to elect state judges. It is a decision of 
what constitutes a state court judge. Such a decision is as much 
a decision about the structure of the judicial office as the 
office's explicit qualifications such as bar membership or the age 
of judges. This decision preserves several values, among them a 
careful balance of judicial independence and judicial 
accountability.

On the other hand, plaintiffs' interest in full value of 
minority votes does not translate easily into single member 
districts for electing trial judges with county-wide jurisdiction. 
Measured by the concerns of the Act, single-member districts can 
create perverse results. After subdistricting, a handful of judges 
would be elected from subdistricts with a majority of minority 
voters. The price of such re-districting would be that all but a 
few sub-districts would be stripped of virtually all minority 
members. The great majority of judges would be elected entirely by 
white voters. Minority litigants would not necessarily have their 
cases assigned to one of the few judges elected by minority voters. 
Rather, the overwhelming probability would be that the minority 
litigant would appear "before a judge who has little direct

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political interest in being responsive to minority concerns." 
LULAC II. 914 F.2d at 650 (Higginbotham, J., concurring).

This concern does not rest on paternalism. It recognizes 
Texas' historic interest in having district judges remain 
accountable to all voters in their district. Regardless of the 
race or residency of particular litigants, judges make choices 
which affect all county residents. Texas has insisted that they 
answer to all county voters at the ballot box.

Unlike officers in legislatures or even judges on collegial 
benches who make decisions in groups, each district judge holds a 
single-member office and acts alone. While subdistricting in 
multi-member offices can enhance minority influence because members 
from minority subdistricts would participate in and influence all 
the members and decisions of the larger body, subdistricting for 
single—member district court judgeships would leave minorities with 
no electoral influence over the majority of judges in each county.

By contrast, under the present regime, minority voters 
participate in all judicial elections in each county. This 
participation gives minority voters the opportunity to influence 
all elections. As Justice O'Connor noted in her plurality opinion 
in Gingles. voters can wield influence over elections even when 
those votes are cast for losing candidates. Gingles, 106 S.Ct. at 
2791. Denying importance to this ability to influence asks that 
all measures of success be found in the win-loss column. This 
mandates proportional representation as the measure of dilution, 
contrary to the explicit terms of § 2. Indisputably,

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subdistricting would assure the absence of minority influence over 
the judicial process. See LULAC II. 914 F.2d at 649-50 
(Higginbotham, J.f concurring); Southern Christian Leadership Conf. 
of Ala, v. Evans. 785 F. Supp. 1469, 1478 (M.D. Ala. 1992) (Hobbs, 
J.) (by subdistricting judicial positions, "black voters . . . will 
. . . be sacrificing [an] extremely valuable political right— the 
right to vote for all of the judges who will be serving as judges 
in the circuit wherein they live").

Plaintiffs contend that linking electoral and elective bases 
does not, in fact, protect these uniquely judicial interests. All 
of the plaintiffs' arguments reduce to the single contention that 
Texas does not consistently apply the policy of linking 
jurisdictional and elective bases. The plaintiffs contend, for 
instance, that Texas district court judges often adjudicate 
controversies involving litigants who are not residents of the 
county and that Texas allows the residents of counties to 'opt out' 
of the linkage by selecting judges from regions smaller than a 
county.

We have rejected these arguments in LULAC II and need pause 
only briefly to address them here. See LULAC II. 914 F.2d at 651. 
Doing so, we note that in assessing the relationship between the 
end pursued and the means employed, "our scrutiny will not be so 
demanding where we deal with matters resting firmly within a 
State's constitutional prerogatives." Sugarman v. Douaall. 413 
U.S. 634, 648 (1973). As both Sugarman and Gregory make clear, 
such "matters" include "the establishment and operation of its own

88



government, as well as the qualifications of an appropriately 
designated class of public office holders.” Suqarman, 413 U.S. at 
648. Examining Texas' linking of electoral and jurisdictional 
bases in light of these considerations, we find that it serves the
substantial interests we described.

By drawing attention to venue, plaintiffs only remind us of 
concerns unique to the trial judge's office. Venue rules preserve 
judicial fairness by preventing forum-shopping and diminishing the 
chances of biased adjudication. At the same time, the rules keep 
most local matters in local courts, where judges are accountable to 
voters for the legal and policy choices they make. Even though 
district courts try some cases involving non-resident litigants, 
Texas' venue rules ensure that they principally handle cases 
related to the counties comprising their districts. This is 
particularly true in criminal matters, when venue is based on 
events related to the offense and not by reference to a defendant's 
domicile. Tex. Code Crim. Proc. Ann. ch. 13 (Vernon 1977). 
Similarly, family law matters will almost always be handled by the 
local district court. See, e.g,„, Tex. Fam. Code Ann. §§ 3.21, 
11.04 (Vernon 1986) (concerning venue in divorce and parent-child 
relationship suits). Of course quintessential^ local matters such 
as suits against counties or disputes involving title to real 
property must be tried in the district court of the same county. 
Tex. Civ. Prac. & Rem. Code Ann. §§ 15.001, 15.015 (Vernon 1986). 
The argument that Texas' venue rules somehow abrogate its interest 
in linking jurisdiction and electoral base is illusory.

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Likewise, the contention that Texas abandoned its interest in 
linkage by allowing voters to approve the creation of districts 
smaller than counties is without merit. As Chief Justice Phillips 
explained at trial, this provision was merely part of a 
constitutional and statutory scheme designed to equalize court 
dockets by allowing the realignment of judicial districts. The 
1985 amendment states that a district smaller than a county may not 
be created unless approved by a majority of county voters. Tex. 
Const, art. V, § 7(a) (i). In none of Texas' 254 counties have 
voters voted to break the link between jurisdiction and electoral 
base. In no district has the linkage been abandoned.

Moreover, even if one county were to subdivide, the interest 
in linkage would not be lost in the state as a whole. In Mahan v. 
Howell. 410 U.S. 315, modified 411 U.S. 922 (1973), the Court 
recognized that although Virginia divided one county when 
reapportioning its state legislature, it retained its interest in 
preserving boundaries of all other political subdivisions. Id. at 
327. Texas' interest in preserving the structure of its judiciary 
by linking jurisdictional and electoral boundaries is even greater 
than a state's interest in observing boundaries in legislative 
reapportioning.

In finding that Texas' interest is substantial, we recognize 
that it will not always defeat § 2 liability. Substantiality is 
not quantifiable, and we translate its force in the practical world 
of trials to the burden required to overcome it. As we see it, 
plaintiffs cannot overcome a substantial state interest by proving

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insubstantial dilution. We hold that the totality of all 
circumstances besides the state interest must sum to substantial 
proof of dilution and do so convincingly if they would overcome the 
state's linkage interest. As a matter of law, Texas' interest 
cannot be overridden by a totality of circumstances that sum to a 
marginal case. It will take more to create a fact issue for trial.

We do not now attempt to define in detail what sort of proof 
of dilution would be substantial enough to override the state's 
linkage interest. We do not change the nature or usual means of 
proof. The Zimmer factors remain relevant. In particular, proof 
of racial appeals in elections, non-responsiveness of elected 
officials to minority voters, and persistent lack of electoral 
success by minority candidates must all be considered. We also 
look to the degree and nature of racial bloc voting to see if such 
voting patterns suggest racial bias in the electorate.

Two facts are especially relevant to assessing the 
substantiality of the plaintiff's proof of dilution: first, the 
willingness of the racial or ethnic majority (in this case, white 
voters) to give a majority of their votes to minority candidates, 
and, second, the ability of the racial or ethnic minority to elect 
candidates of their choice even when opposed by a majority of votes 
from the racial or ethnic majority. Where the dominant racial or 
ethnic group repeatedly casts most of its votes for members of 
racial or ethnic minorities, the likelihood is that racial bias (as 
opposed to ideological difference) is not an insurmountable 
obstacle to coalition-building. Likewise, where the racial or

91



ethnic minority is large enough repeatedly to elect candidates of 
its choice even when opposed by the racial or ethnic majority, one 
cannot conclude that the minority is incapable of influencing 
elections because it is submerged in a sea of hostile voters. In 
either case, the plaintiff's proof of dilution may, as a matter of 
law, be too insubstantial to overcome the state's substantial 
interest, even if it might be sufficient to establish liability 
absent that interest.

2. Weight of Texas' interest is 
a legal question, not a question of fact

The plaintiffs urge that whether Texas' linkage interest is 
substantial is a matter of fact for the district court to decide in 
the first instance. The plaintiffs contend that we may review such 
a factual determination only for clear error. We disagree.

The Supreme Court has held that the ultimate finding of 
dilution is a factual matter reviewable only for clear error. A 
substantial state interest is not inherently preclusive of dilution 
and is not raised to disprove the existence of dilution. Rather, 
the state's interest is weighed against proven dilution to assess 
whether such dilution creates § 2 liability. Houston Lawyers'. Ill 
S.Ct. at 2381 (weighing of linkage interest on remand goes to 
determination of whether interests "outweigh[s] proof of racial 
vote dilution") .

The weight to be assigned to a state's interest under the 
Fourteenth Amendment has always been a legal question, not a 
factual question. The determination of the substantiality of 
Texas' linkage interest under the Voting Rights Act, a statute

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enacted to enforce the guarantees of the Civil War Amendments, is 
analogous. We hold that the determination of substantiality of 
Texas' interest under § 2 is a question of law for this court to 
determine de novo and not a question of fact that somehow will be 
described on a county-by-county basis.

3. Absence of less restrictive means to 
accommodate the linkage interest

Plaintiffs urge that the linkage interest can be accommodated 
through a scheme of single-member districts, by making the district 
court judges' area of primary jurisdiction co-extensive with the 
single-member district from which the district court judge is 
elected. They provide no evidence that such a radical re-working 
of the venue of Texas courts would be administratively feasible. 
The district court likewise simply asserted that such an 
arrangement of venue limited to a single-member district could 
accommodate Texas' interests, without a glance at the feasibility 
of such an arrangement. A glance at Harris County cut into a grid 
of fifty-nine venue squares is enough to show the bizarre nature of 
this proposal. Enough time and money is already wasted arguing 
over which county's courts should try a suit, without the venue 
depending upon in which voting precinct an event occurred.

We cannot conclude that Texas' interests could be adequately 
accommodated by such a radical re-working of Texas venue rules. 
The proposal illustrates how different the judicial offices' at- 
large election scheme is from legislative and executive at-large 
elections. Plaintiffs propose essentially that the district court 
eliminate Texas venue rules and replace them with rules of the

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district court's own creation. The very necessity for the proposal 
is a powerful testament to the reality that linkage is an essential 
part of the structure of the judicial office, much more than the 
method by which the holder of the office is elected.

C. Relevance of Elections with Hispanic Candidates 
To Black-Preferred Candidates' Success

In determining the success of the black-preferred candidate as 
required by Gingles. the plaintiffs examined only those elections 
in which black candidates participated. Thus, in Harris, Tarrant, 
Jefferson, and Dallas counties, the plaintiffs ignored the success 
of the minority-preferred candidates in elections in which 
Hispanics had run. The district court seems also to have 
discounted the importance of these white-Hispanic elections.

The district court also found, however, that black and 
Hispanic voters were a single cohesive minority group in three 
counties (Midland, Lubbock, and Ector), apparently because the 
members of the two minority groups generally voted for the same 
candidates. Taebel studied a number of elections in each county 
and determined the percentage of black and Hispanic votes cast for 
the minority/winning candidate. In Midland County, of the 8 
elections Taebel studied, the black and Hispanic voting percentages 
were within 10% of each other 4 times. In Lubbock County, 6 out of 
7 elections showed blacks and Hispanics voting together within 10%. 
In Ector County, blacks and Hispanics voted within 10% of each 
other in only 2 out of 10 elections.

The district court made no findings as to whether black and 
Hispanic voters were also a cohesive group in other counties.

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However, nothing in the record suggests that black and Hispanic 
voters were not equally cohesive outside Ector, Midland, and 
Lubbock counties. Indeed, in Harris and Tarrant Counties, the 
undisputed data in Taebel's studies show that a large majority of 
both Hispanics and blacks usually supported the same candidates. 
In Harris County, Taebel studied 46 elections. In 35 of these, the 
black and Hispanic vote percentages were within 10% of each other. 
Out of 17 elections in Tarrant County, 13 involved blacks and 
Hispanics voting for the same candidate within 10%. Thus, the 
record shows that blacks and Hispanics were actually more cohesive 
in Harris and Tarrant County than in Midland and Ector, two out of 
three counties in which the district court made a finding of 
cohesion.

If black and Hispanic voters form a cohesive minority group in 
counties outside Ector, Midland, and Lubbock, then the district 
court clearly erred in ignoring races with Hispanic candidates in 
assessing the success of the black-preferred candidate. This court 
has held that elections between white candidates alone are 
generally less probative in determining the success of the 
minority-preferred candidates, because such elections do not give 
minority voters the choice of a viable minority candidate. Campos 
v. City of Baytown. 840 F.2d 1240, 1245 (5th Cir. 1988) ("The 
district court was warranted in its focus on those races th..t had 
a minority member as a candidate"); Citizens for a Better Gretna v. 
City of Gretna. 834 F.2d 496, 503 (5th Cir. 1987). As we noted in 
Gretna, "Gingles is properly interpreted to hold that the race of

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the candidate is in general of less significance than the race of 
the voter— but only within the context of an election that offers 
voters the choice of supporting a viable minority candidate." 
Gretna. 834 F.2d at 503.

Gretna does not explain which elections are relevant in 
determining the success of the black-preferred candidate in 
communities where black and Hispanic voters vote cohesively. 
However, if black and Hispanic voters are truly a cohesive minority 
group, then logic requires that the district court consider 
elections with Hispanic candidates, because Hispanic candidates 
would count as members of this bi-minority "group." If black and 
Hispanic voters are, in effect, a single minority group with common 
"social, economic, and political interests," Leaque of,United Latin 
American Citizens v. Midland Indep.— gchool . Dist_̂, 812 F.2d 1494, 
1501 (5th Cir. 1987), then elections with a viable candidate from 
this single minority group constitute elections with a "viable 
minority candidate" within the meaning of Gretna.

This panel is not free to examine afresh whether Hispanic and 
black voters ought to be treated as a single minority group under 
§ 2 of the Voting Rights Act. Both judicial opinions and 
commentators have suggested that such treatment of different ethnic 
groups as fungible for the purposes of § 2 is contrary to the 
purposes of the Voting Rights Act and flies in the face of 
political reality. See. e. g. , Midland I.S.D_._, 812 F.2d at 1505-07 
(Higginbotham, J., dissenting); Katherine I. Butler & Richard 
Murray, Minority Vote Dilution Suits— and— the— Problem— of— Two

96



Minority Groups: Can a "Rainbow Coalition1*_Claim the Protection of
the Voting Rights Act?. 21 Pacific L. J. 619, 641-57 (1990).

The law of this circuit, however, is that black and Hispanic 
voters can form a cohesive minority group under Gingles. Midland 
T.S.D.. 812 F.2d at 1501. We hold that, where black and Hispanic 
voters are cohesive, then elections with Hispanic candidates 
present black voters with the option of supporting a viable 
minority candidate within the meaning of Gretna. Therefore, where 
Hispanics and blacks vote cohesively, it is error not to examine 
elections with candidates of either group in assessing the success 
of either black- or Hispanic-preferred candidates.

Plaintiffs contended at oral argument that blacks and 
Hispanics are cohesive only in those counties where the plaintiffs 
proceeded on behalf of the combined minority voters in the county. 
If blacks and Hispanics are cohesive for the purposes of Gingles, 
however, they are cohesive regardless of the plaintiffs' litigation 
strategy. Cohesion is a political and social fact, not a matter 
determined by the plaintiffs' pleadings. Plaintiffs essentially 
urge that Hispanic and black voters are cohesive only when such 
cohesion is beneficial to the plaintiffs' proof. Such an approach 
is illogical and insupportable, if understandable.

The undisputed facts show that blacks and Hispanics are just 
as cohesive in Harris and Tarrant Counties as in Midland, Ector, 
and Lubbock Counties: the voting patterns in all five counties were 
not different in any relevant respects. The district court, 
therefore, clearly erred in ignoring elections with Hispanic

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candidates in determining the success of the black-preferred 
candidate in Harris and Tarrant Counties.

D. Relevance of Small Number_of—Minority—Lawyers
Undisputed evidence shows that in all of the counties, the 

percentage of minority lawyers was much smaller than the percentage 
of minority voters. In Ector County, for example, there appear to 
be six minority lawyers eligible for district judgeships.14 It is 
true that we have refused "to preclude vote dilution claims where 
few or no [minority] candidates have sought offices in the 
challenged electoral system." Westwego Citizens for Better Gov t̂ 
v. City of Westwego. 872 F.2d 1201, 1208 n.9 (5th Cir. 1989) . That 
holding is a far cry from the conclusion that the number of 
minority candidates eligible to run has no relevance. Section 2 
and the Senate Report instruct us to consider the number of 
minority candidates elected to office. At the same time, we are 
instructed to look at the totality of the circumstances, which 
includes the fact that few minority citizens can run for and be 
elected to judicial office. Our functional analysis of the 
electoral system must recognize the impact of limited pools of 
eligible candidates on the number of minority judges which have
resulted. See Southern Christian Leadership_Conf._of— Ala..— v̂ _
Evans. 785 F. Supp. 1469, 1476-77 (M.D. Ala. 1992).

District judges in Texas must be licensed attorneys. Tex. 
Const, art. V, § 7. As a result, relatively few minority citizens

uLawyers must be licensed in Texas for four years and resident 
in the district for two years to be eligible for district court 
judgeships.

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are eligible to run for this office. Consider Tarrant County, 
where black lawyers comprised only 2.4% of eligible attorneys in 
1989. From 1985 to 1989, however, between 8% and 13% of Tarrant 
County district judges were black. In four counties, Dallas, 
Harris, Tarrant, and Bexar, the percentage of minority judges 
exceeds the percentage of minority lawyers. The absence of 
eligible candidates goes a long way in explaining the absence of 
minority judges. Plaintiffs here cannot emphasize the scarcity of 
successful minority candidates to support their dilution claims and 
simultaneously urge that the number of minorities eligible to run 
is not relevant. The district court erred by dismissing the 
significance of the paucity of minority lawyers.

III. Application of Law to Each County 
We now turn to the application of these principles of law in 

each county. The district court's findings of dilution were based 
upon erroneous legal principles and cannot be relied upon. 
Considered in light of the controlling standards, the evidence 
admits of only one conclusion in each county: no violation of § 2.
Therefore, we reverse. We reach our conclusions, however, by 
different routes in different counties. In six counties (Dallas, 
Tarrant, Travis, Midland, Ector, and Lubbock), we find that the 
district court erred in finding proof of dilution, regardless of 
Texas' linkage interest. In four of those counties (Dallas, Ector, 
Midland, and Lubbock), the overwhelming evidence showed that 
partisan affiliation, not race, explained the results. In the 
three remaining counties (Harris, Bexar, and Jefferson), we assume

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that the evidence may have sufficed to show dilution absent the 
state's substantial interest. The proof of dilution, however, was 
so insubstantial that it was outweighed by Texas' linkage interest 
as a matter of law.

One thread runs throughout the plaintiffs' case in all of the 
counties— the insubstantiality of the plaintiffs' proof that the 
minority-preferred candidate lost -on account of race." Except in 
Dallas County, the district court's finding of such racial dilution 
was based on only three findings. These were according to the 
district court, (1) proof of the Ginqles factors; (2) general 
history of discrimination in the counties; and (3) 
underrepresentation of minorities in the state judiciary of each 
county. This evidence was supplemented by proof of some
"enhancing" Zimmer factors (large districts, anti-single shot 
voting, etc.). In Dallas County, the district court also found two 
instances of racial appeals.

As we explain in more detail below, this evidence of dilution 
by itself is slender, barely amounting to a proof that any 
minority-preferred candidate lost on account of race. We are 
persuaded that it is outweighed by Texas' linkage interest.
A. Dallas County

The voting age population of Dallas County is 1,106,757. Of 
this number, 180,294 (16.3%) are black, and 90,966 (8.2%) are
Hispanic. Plaintiffs proceed on behalf of the black voters in

In 1989 there were 36 district court judges in 
Until 1987, there were no black district court

Dallas County. 
Dallas County.

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judges. In 1987 and 1988, there were three black district court 
judges or 8.3% of the total and in 1989, there were two or 5.5% ot 
the total. There were also two black county court judges elected 
at-large in Dallas county. The defendants' undisputed expert 
testimony and surveys showed that black lawyers made up at most 
2.2% of the lawyers residing in Dallas County.

The undisputed expert evidence demonstrated that 99%-100% of 
black Dallas voters support the Democratic candidate in every 
judicial election. The evidence also indicated that the majority 
of the white voters always voted for the Republican, and thus for 
candidates other than the black-preferred Democratic candidate.

As a result of these voting patterns, the black-preferred 
Democratic candidate always lost in judicial elections, regardless 
of the year of the election in Dallas County. The Republican Party 
dominated every analyzed judicial race. Defendants understandably 
contend that the defeat of black-preferred candidates is the result 
of partisan affiliation rather candidates' race. According to 
defendants, elections are determined by straight-party voting in 
which voters support their party's ticket regardless of the race of 
the candidates. The undisputed facts overwhelmingly support this
assertion.

Taebel and Engstrom analyzed seven district court general 
elections with black candidates. The following is a summary of the 
election results as they appear in the record. The underlined 
candidate is the black candidate. The first figure represents the 
non-black vote as estimated by plaintiffs' expert. The range is

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defined by the homogenous precinct and bi-variate regression 
analysis performed by Engstrom. The second figure, in parentheses, 
represents the white vote as estimated by Taebel- Taebel did not 
analyze the 1984 Tinsley-Maloney race.

Year Election NB vote (white vote)
1980 Winn (Dem.) 

Howell (Rep.)
38.6-39.7% (36%)

1984 Baraka (Reo.) 
Metcalfe (Dem.)

60.6-61.8% (61%)

I I  I I Tinslev (Dem.) Maloney (Rep.)
28.7-30%

I f  I I White (Dem.) 
O'Donnell (Rep.

30.6-31.9%
)

(31%)

1986 Tinslev (Dem.) 
Kendall (Rep.)

36.6-37.5% (31%)

I I  I I Wriaht (Reo.) Brin (Dem.)
70.6-71.7% (77%)

1988 Oliver (Dem.) 
Brown (Rep.)

36.9-37.9% (38%)

Roughly 61%-77% of white voters consistently support Republicans, 
even when black Republicans run against white Democrats. Virtually 
all black voters supported the Democratic candidate, even when the 
Democratic candidate was white, running against black Republicans.

Moreover, white support for Republicans remained constant, 
even when the Republican was black. Black Republicans won in two 
of the seven analyzed district court races. According to Taebel's 
study, one of these Republicans, Carolyn Wright, did better among 
white voters than any other Republican, white or black, winning 77% 
of the white vote. Even Engstrom's study shows Wright doing better

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among white voters than most white Republicans, receiving between 
70% and 72% of the white vote. Other black Republicans received 
percentages of the white vote comparable to those received by white 
Republicans. Judge Baraka, the other black Republican district 
court candidate, took about 61% of the white vote against a white 
Democrat. County Judge Brashear, a black Republican, took 66% of 
the white vote in his successful race for a county court judgeship 
against a white Democrat.

Just as black Republicans did as well as or better than white 
Republicans, so too, black Democrats won as large a percentage of 
the white vote as white Democrats. The white vote for Democratic 
candidates ranged between 23% to 39%. According to plaintiffs' 
exhibits, black Democrat Oliver won about 38%— a larger than 
average share of the white vote for a Democrat. Winn, another 
black Democrat, received as much as 39% of the white vote. By 
comparison, white Democrat Brin received no more than 29% of the 
white vote when running against Wright, a black Republican.

Republican candidates lost the black vote and won the white 
vote regardless of their public positions on matters related to 
race. Judge Carolyn Wright, for instance, had been a member of the 
Dallas Chapter of the Coalition of 100 Black Women, served as a 
legal intern for the Lawyer's Committee on Civil Rights, a project 
related to civil rights in South Africa, and was a charter member 
and past vice-chair of the National Political Congress of Black 
Women. By contrast, the record is silent regarding the record of

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Wright's opponent, Brin. He nevertheless won the black vote
handily in the general election.

Professor Anthony Champagne, defendants' expert witness, 
testified that this voting pattern was the result of straight- 
ticket voting. According to Dr. Champagne, judicial elections are 
low-profile elections in which the voters know little more about 
the candidates than what they read on the ballot. The voters, 
therefore, will make their choice based on the information that the 
ballot contains— which means party affiliation. Because a majority 
of voters in Dallas are Republican, Republicans tend to prevail in 
most of the races.

Engstrom did not control for partisan affiliation in his study 
of Dallas county voting patterns. The district court also made no 
finding that partisan affiliation did not determine election 
outcomes, but instead held that the cause of voting patterns was 
irrelevant under Gingles.

We are persuaded that the undisputed facts indicate that the 
defeat of the black-preferred candidate was the result of the 
voters' partisan affiliation, not the result of race. The black- 
preferred candidate was always the Democratic candidate, while the 
majority of white voters always supported the Republican candidate. 
Although between about 30%-40% of the white voters supported the 
Democratic candidate, the combination of black and white Democratic 
votes was insufficient to cause the Democratic candidate to 
prevail. Black and white Democratic voters alike were, therefore, 
unable to elect any Democratic judicial candidates. Plaintiffs

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have therefore failed to establish racial bloc voting as required 
by Ginales.

As we noted above, the race of the candidate did not affect 
the pattern. White voters' support of black Republican candidates 
was equal to or greater than the support that white voters gave to 
white Republicans. Likewise, black and white Democratic candidates 
received equal percentages of the white vote. Given these facts, 
we cannot see how the minority-preferred candidate was defeated "on 
account of race or color." Rather, the minority-preferred 
candidates were consistently defeated because they ran as members 
of the weaker of two partisan organizations.

The plaintiffs contend that the Democratic Party better 
represents the political views of black voters in Dallas County. 
This contention, if true, is not relevant to whether the minority- 
preferred candidate is defeated on account of race. To the extent 
that black voters' preferred candidates are consistently defeated 
because of their substantive political positions, they are simply 
the casualties of interest group politics, not racial 
considerations. This is not the harm against which § 2 protects. 
Section 2 protects black voters against defeat of the minority- 
preferred candidate on account of race or color, not on account of 
political platform. See Whitcomb. 403 U.S. at 154-55. We do not 
deny that political positions can be proxies for racial prejudice. 
See Gingles. 106 S.Ct. at 2774. However, where white voters 
support black candidates of a particular party in larger 
percentages than they support white candidates of the same party,

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■̂ here is no basis, without more, for us to conclude that the 
parties' political positions are proxies for racial bias.

Even assuming arcruendo that plaintiffs have met the Gingles 
threshold by showing bloc voting, the totality of circumstances in 
the record cannot support a § 2 violation. Plaintiff—intervenors 
Oliver, White, and Tinsley contend that "race considerations 
pervade elections in Dallas County." They support this proposition 
with the district court's finding that there were two instances of 
overt or subtle racial appeals in Dallas County elections. In one, 
Larry Baraka was called a "Black Muslim" by his opponent. In 
another, Vance, a candidate for district attorney, printed his 
opponent's picture in campaign literature, thus informing the 
electorate that Vance was running against a black opponent. 
Nothing in the district court's opinion indicates that these racial 
appeals were anything more than isolated incidents. In the only 
judicial election affected by a racial appeal, the black candidate, 
Baraka, won both the Republican primary and the general election, 
winning a majority of the white vote in both elections.

Oliver, Tinsley, and White also contended at trial that voting 
patterns in non-partisan elections show that partisan affiliation 
could not explain the defeats of black-preferred candidates. They 
produced data from seven Dallas City Council elections, one 
Democratic Presidential primary, and four ballot issues to support 
this contention. The district court made no findings about this 
data, and the parties do not discuss it in their briefs on appeal.

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Assuming arguendo that these high-profile elections had any 
relevance to voting patterns in low-profile judicial elections, we 
find that the data presented does not support the plaintiffs' 
argument. The data shows that the candidate favored in 
predominantly black areas of Dallas prevails in four out of seven 
City elections and wins the highest plurality (46%) in the 
Presidential primary. If this data proves anything, it shows that, 
when one controls for partisan affiliation, the minority-preferred 
candidate is not defeated and wins the majority of the white vote 
in most elections.

All other evidence indicated that racial politics played no 
role in the minority-preferred candidates' defeat. The district 
court rejected the suggestion that the Republican Party was a white 
slating organization. The undisputed testimony shows that any 
eligible candidate could run as a Republican, and plaintiff- 
intervenors themselves testified at trial that they had been 
heavily lobbied by the Republican Party leadership to do so. The 
plaintiffs presented general evidence of the lingering effects of 
past discrimination, but no specific evidence of depressed levels 
of black political participation such as low black voter 
registration or turn-out.

On the contrary, the minority-preferred candidates ran 
professional, well-financed campaigns backed by the Democratic 
Party, an party that, until the late 1970's, had dominated Dallas 
County judicial races just as completely as the Republican Party 
now dominates those races. These Democratic candidates lost

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because Dallas County had shifted from being a county of 
predominantly Democratic straight-ticket voters to a county of 
mostly Republican straight-ticket voters.

Plaintiffs made no substantial factual riposte to the 
overwhelming evidence that election outcomes were the product of 
partisan affiliation. Rather, plaintiffs' answer was the legal 
assertion that the effect of partisan affiliation, virtually 
admitted, was not relevant. Plaintiffs' own Dr. Engstrom conceded 
that there is "a stronger association between partisan affiliation 
and success than there is between the race of the candidate and 
success." Dr. Engstrom asserted that partisan affiliation did not 
explain all of the voting patterns in Dallas County. However, he 
conceded that he had no data that black Democrats generally did 
worse than white Democrats. In fact, the undisputed facts show 
that, when one controls for party, black candidates did as well as, 
or better than, white candidates in winning the white vote and 
elections. Plaintiff-intervenor Judge White conceded that partisan 
affiliation determined her electoral defeat. She admitted that "if 
I ran as a Republican . . . the likelihood is that I would win."

In short, the undisputed facts show that the defeat of the 
minority-preferred candidate was the result of the voters' partisan 
affiliation. The district court erred in finding racial vote 
dilution.
B. Harris County

Harris County elects 59 district court judges at-large. At 
the time of trial, three were black, three were Hispanic, and the

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rest were Anglo. Defendants produced uncontested expert testimony 
and surveys which established that black lawyers make up at most 
3.8% of the lawyers residing in Harris County but comprised 5.1% of 
Harris County's district judges. There was also one black county 
court judge in Harris County who was elected at-large. According 
to plaintiffs' evidence, 1,685,024 people of voting age reside in 
Harris County; 305,986, 18.2%, are black, and 222,662, 13.2%, are 
Hispanic. Plaintiffs claim to represent all black voters in Harris
County.

Defendants' expert, Taebel, studied Harris County judicial 
elections between 1980 and 1988 with either a black or Hispanic 
candidate. Taebel's study covered 24 district court elections, 9 
county court elections, one court of appeals election, one Supreme 
Court election and ten primary elections. Plaintiffs' expert, 
Engstrom, studied 17 district court elections with a black 
candidate in Harris County. All but two of Engstrom's elections 
were included in Taebel's study. Neither Taebel nor Engstrom 
analyzed all of the judicial races in which blacks or Hispanics 
ran. There was evidence in defendant Judge Sharolyn Wood's 
exhibits that minority candidates participated in 42 races between 
1980 and 1988, including six omitted by Taebel and Engstrom.

Engstrom studied 17 judicial races with black candidates 
between 1980 and 1988. The black-preferred candidate won three, 
about 17.65%. County court judges also run in county-wide races. 
The jurisdiction of county court is also county—wide but is limited 
to smaller cases than the listed courts. If we include races for

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county court judgeships with black candidates, races that Engstrom 
apparently ignored, the black-preferred candidate prevailed in five
out of twenty-three races— 21.74%.

Curiously, plaintiffs' study ignores judicial races with 
Hispanic candidates. Taebel's study includes some of these races, 
and Judge Sharolyn Wood's exhibits include all of them. In the 
judicial races with black or Hispanic candidates, the black- 
preferred candidate won 15 of 37 races or about 40.5% of the time. 
Eliminating the two exogenous races for Supreme Court posts by 
Gonzalez in 1986 and 1988, the minority-preferred candidate still 
prevailed 37.143% of the time.

These percentages do not fully reflect the success of 
minority-preferred candidates. The black-preferred candidate was 
sometimes neither black nor Hispanic. Partisan affiliation always 
trumped race in predicting which candidates would be supported by 
white voters. For instance, when black Republican Mamie Proctor 
was defeated by white Democrat Schuble in her 1986 race for a 
district court judgeship, Proctor won the majority of the white 
vote, but lost the vast majority of the black vote to Schuble, the 
black-preferred candidate. Likewise, when Cheryl Irvin, another 
black Republican, ran against Duncan, a white Democrat, for a 
county court judgeship, she won the white vote, but Duncan received 
virtually all the black vote. Judge Kenneth Hoyt, now a United 
States District Court Judge, won the white vote and the election 
(as well as the endorsement of the Houston Lawyers' Association) 
but lost virtually all of the black vote in his race as a black

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Republican against a white Democratic opponent for a position on 
the state appellate bench.

In 1980, 1984, and 1988, years in which popular Republican 
presidential candidates ran, Republicans defeated virtually all 
Democrats and, thus, black-preferred candidates. In 1982 and 1986, 
however, the black-preferred candidates won eight out of the twelve 
races in which black candidates participated. In races with a 
Hispanic candidate, the black-preferred candidate won 22 out of 36 
races. The black-preferred candidates enjoyed consistent success 
of 20% or 40% victory, looking respectively to races with black 
candidates only and elections with both Hispanic and black 
candidates. The black-preferred candidate was the Democratic 
candidate in every election in every county. Defendants buttressed 
these facts with expert testimony that the defeat of both white and 
black Democrats was the result of straight-ticket voting. 
According to defendants, both white and black judicial candidates, 
whether Democratic or Republican, fared according to the popularity 
of ticket leaders. Defendants contended that the race of the 
candidate was irrelevant to the outcome of judicial elections. The 
black-preferred, that is Democratic, judicial candidate would win 
when the more visible Democratic candidates were strong and would 
do poorly when the Republican ticket was headed by a popular 
presidential candidate.

Undisputed data in the parties' studies provides substantial 
support for defendants' theory. The black-preferred Democratic 
candidates' success varied with the year of the election.

Ill



According to the data, in 1980, 1984, and 1988, when the Republican 
ticket was headed by popular presidential candidates, all but one 
Republican judicial candidate, including one black Republican, won, 
and Democrats lost. In 1982 and 1986, when either Governor Mark 
White or Senator Lloyd Bentsen headed the Democratic ticket, the 
success at the top of the ballot carried down to judicial races 
more marked by anonymity than name identity.

Defendants further note that the Republican candidate always 
won the white vote and the Democratic candidate won the black vote, 
regardless of that candidate's race or the race of his opponent. 
Republicans always won a majority of the white vote, generally 
taking between 55% and 65% of the white vote regardless of whether 
the Republican candidate was black, Hispanic, or white. Similarly, 
Democratic candidates always took virtually all of the black and 
Hispanic vote, even when a white Democratic candidate ran against
a black or Hispanic Republican.

It does not follow from this data, however, that black 
candidates did as well as white candidates, even if one controls 
for partisan affiliation. According to Judge Sharolyn Wood's 
exhibits, of 22 black Democrats only three were elected, about 
13.64%. By contrast, white Democrats won four out of five, 80%, of 
their races. Indeed, again according to Judge Wood's exhibits, 
four out of six black Democratic candidates, Berry, Fitch, Fisher, 
and Lee, lost in 1986, a year in which all other Democrats won. 
The undisputed testimony also indicated that Francis Williams, a 
black Democrat not included in Judge Wood's exhibits, also lost his

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race in 1986. All of the defeated black Democrats were incumbent 
judges. In short, black Democratic candidates did not fair as well 
as white Democratic candidates in the elections studied.

The district court made no findings about the cause of the 
defeat of the black or black-preferred candidates for judicial 
posts. Instead, relying on Justice Brennan's opinion in Gingles, 
the district court incorrectly held that the actual cause of the 
defeats of the black-preferred and black candidates was legally 
irrelevant in a § 2 vote dilution case.

Nonetheless, we will assume arguendo that the district court 
could infer dilution from the evidence of elections in Harris 
County. We will also assume that, absent Texas' substantial 
interest in its at-large system, such dilution might create 
liability under § 2. The question remains whether such assumed 
proof of dilution is sufficient to overcome Texas' interest in 
linking electoral and jurisdictional bases of trial court judges.

The district court found dilution based from the three Gingles 
factors, two primary Zimmer factors, and three "enhancing" Zimmer 
factors. The primary Zimmer factors were (1) the general history 
and lingering socio-economic effects of past discrimination and (2) 
the underrepresentation of minorities in the judiciary. The 
enhancing Zimmer factors were (1) the large size of Harris County; 
(2) the prevention of single shot voting by numbered post election; 
and (3) the majority runoff requirement in primary elections.

Assuming that this proof sufficed to show dilution absent 
Texas' substantial interest, we find the proof to be marginal. The

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undisputed facts show that a majority of white voters invariably 
supported black Republican candidates and that black voters could 
repeatedly elect their preferred candidates even when opposed by a 
majority of white voters. In the absence of any substantial 
evidence of racial politics, any possible inference that the 
minority-preferred candidate lost on account of race would be 
tenuous. As a matter of law, Texas' linkage interest must outweigh 
such a tenuous case.

First and most significantly, white voters repeatedly support 
black Republican candidates, showing that the defeat of minority- 
preferred candidates was substantially, although perhaps not 
entirely, caused by partisan affiliation. Kenneth Hoyt, Mamie 
Proctor, and Cheryl Irvin, black Republicans, all won a majority of 
the white vote; Proctor and Irwin lost elections because black 
voters gave virtually all of their votes to the white Democratic 
candidates. In the Democratic primaries where party affiliation 
plays no part, blacks actually did better than white candidates, 
winning 70% of their contested races.

In addition to evidence of partisan affiliation, minority- 
preferred candidates had substantial success in winning elections, 
even when they were opposed by a majority of white voters. The 
undisputed facts showed that minority voters elected the candidate 
of their choice in 13 out of 37 analyzed non-exogenous elections in 
which either black or Hispanic candidates participated— 37.14% of 
the time.

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Minority voters could, therefore, repeatedly elect candidates 
of their choice, even when opposed by a majority of white voters. 
Far from being submerged in a white majority, black voters were a 
potent electoral force that could form coalitions with minorities 
of white voters to elect their preferred candidates. This ability 
to form coalitions and influence the elections of all judges in 
Harris County would be lost in the system of single-member 
districts proposed by the plaintiffs. Instead, black voters would 
receive the right to elect nine judges, abdicate any right to vote 
for the balance of fifty, and thus radically the reduce the chances 
of having their disputes decided by a judge over which they had any 
influence. As we stated, absent clear evidence that the at-large 
vote is meaningless because of racial politics, such a result is 
perverse.

The remaining evidence adds little to plaintiffs' claims of 
illegal vote dilution. The district court cited these Zimmer 
factors: (1) the general history and lingering effects of 
discrimination in Harris County, (2) the underrepresentation of 
blacks on the Harris County bench, and (3) the consistent defeat of 
the minority-preferred candidate by the majority of white voters.

The lingering effects of past discrimination can "exacerbate 
the effects of a racially or ethnically polarized electoral 
process" by reducing minority registration, voting, and general 
political participation. Terrazas. 581 F. Supp. at 1346 n. 26. 
See also White v. Reaester. 412 U.S. 755, 768 (1973); Kirksev v. 
Board of Supervisors. 554 F.2d 139, 145 (5th Cir. 1977) (en banc).

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However, while past discrimination exacerbates racial politics 
otherwise proven, it is at best weak circumstantial evidence of 
racial politics. The legislative history of the 1982 amendments 
indicates that such past discrimination by itself does not support 
an inference of dilution. See S. Rep. 417 at 34 ("mere existence 
of underrepresentation plus a history of dual schools" is 
insufficient to show dilution under White/Zimmer test), reprinted 
in 1982 U.S. Code Cong. & Admin. News at 212. Whitcomb also 
suggests that evidence of black poverty alone, even when combined 
with polarized voting, does not prove dilution: in Whitcomb, the 
Supreme Court did not dispute the three-judge panel's finding that 
black residents in the so-called "ghetto" area suffered from poor 
housing, high unemployment, and other burdens of poverty. 
Whitcomb. 403 U.S. at 132.

Moreover, if lingering effects of past discrimination in 
combination with polarized voting could prove dilution, then proof 
of the three Gingles factors would virtually always suffice to 
establish § 2 liability, because there are few if any communities 
in the United States that do not still suffer from the economic 
effects of racism. Allowing proof of the effects of past 
discrimination alone to prove dilution under the totality of 
circumstances would make a mockery of the "totality of the 
circumstances" inquiry. Far from being intensely local, such 
inquiry would involve no more than judicial notice of the obvious.

In Harris County, the plaintiffs presented no evidence that 
general black poverty has reduced levels of black registration or

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black voters' turnout. Indeed, there is no record evidence that 
black voters' registration or turnout is lower than white 
registration or turnout. We do not presume that past 
discrimination causes lower turnout or registration of minority 
voters. S. Rep. 417 at 29 n.114 ("The courts have recognized that 
disproportionate educational, employment, income level and living 
conditions arising from past discrimination tend to depress 
minority political participation. Where these conditions are 
shown, and where the level of black participation in politics is 
depressed. plaintiffs need not prove any further causal nexus 
between their disparate socio-economic status and the depressed 
level of political participation" (emphasis added)), reprinted in 
1982 U.S. Code Cong. & Admin. News at 207 n.114; see also McIntosh 
Ctv. NAACP v. City of Darien. 605 F.2d 753, 759 (5th Cir. 1979). 
Given the lack of any evidence that a smaller percentage of black 
voters register and vote than white voters, plaintiffs have failed 
to show even that past discrimination has deprived black voters of 
equal access to the political system.

Likewise, the representation of blacks on the Harris County 
bench cannot support an inference of racial politics. Three blacks 
were district court judges in 1989— 5.1% of the total. By 
contrast, black attorneys make up at most only 3.8% of the 
attorneys in Harris County. The fact that blacks occupied a 
smaller percentage of the bench than the black voters' percentage 
of Harris County's population, therefore, is not surprising: if

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judges were chosen at random from the pool of eligible candidates, 
there would be fewer black judges on the Harris County bench.

Aside from the number of blacks on the Harris County bench and 
the general history of discrimination, the district court found 
three Zimmer enhancing factors. See Nevett v. Sides. 571 F.2d 209, 
218 (5th Cir. 1978). Such factors enhance the opportunity of a 
white majority to engage in racial politics. However, they do not 
"meaningfully advance the inquiry into whether race is at issue," 
Terrazas. 581 F. Supp. at 1346 n.26, and therefore cannot support 
an inference of racial politics.

The circumstantial evidence of a relation between defeats and 
race is, at best, tenuous, given the willingness of white voters to 
support black Republican candidates and substantial success enjoyed 
by minority-preferred candidates. We express no opinion as to 
whether this minimal proof of dilution shows a violation of § 2 
absent Texas' linkage interest. Assuming without deciding that it 
does, we find that plaintiffs' proof at best produces only a 
marginal case in Harris County too insubstantial to outweigh Texas' 
linkage interest, as a matter of law.
C. Tarrant County

There were 23 district courts in Tarrant County in 1989. In 
1985, 1986, 1987, and 1988, three of these judges (over 13%) were 
black. In 1989, two district court judges were black (8.7%). The 
defendants' undisputed testimony and surveys indicated that only 
2.4% of the Tarrant County Bar is black. There are 613,698 
residents of voting age in Tarrant County. Of this number, 63,851

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(10.4%) are black. Plaintiffs proceed on behalf of black voters in 
Tarrant County.

The evidence indicated that blacks voted cohesively for the 
Democratic candidate. Brischetto, plaintiffs' expert, analyzed 
four elections, three of which were general elections for district 
judgeships and one of which was the Democratic presidential primary 
of 1988. In all four elections, the regression estimates show that 
from 85% to 100% of Tarrant County blacks voted for the black- 
preferred and Democratic candidate. Taebel's analysis is 
substantially the same.

Taebel analyzed nine general elections, including three 
exogenous elections, in which a black or Hispanic had participated. 
Brischetto analyzed only those elections in which a black candidate 
had participated— three general elections for state district court 
judge and one Presidential primary. As in all other counties, the 
evidence showed that black voters voted cohesively for Democratic 
candidates. Unlike other counties, however, black judges made up 
more than 13% of the Tarrant County bench for four out of five 
years— a proportion of the bench that is greater than the 
proportion of black voters in the County's population.

The success of the black-preferred candidate was also greater 
in Tarrant County than in other counties. In those general 
elections with black candidates, the black-preferred candidate, 
always the Democratic candidate, won only one out of three general 
elections--33.3% of the studied races. However, in nine general 
elections with Hispanic candidates included in Taebel's study, the

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black-preferred candidate won four out of nine, or 44.4% of the 
elections. In the six non-exogenous district and county court 
elections included in Taebel's study, the black-preferred candidate 
won three out of six, or 50% of the elections.

Brischetto includes the 1988 Democratic presidential primary 
in which Jesse Jackson won virtually all of the black vote in 
Tarrant County but received between 14% to 16% of the white vote.15 
Taebel's study also includes a 1986 Democratic primary for state 
district court in which Ross, the black-preferred candidate, 
received 57% of the black vote but lost the white vote and thus 
came in third out of a field of four candidates. Brischetto 
ignores the two Democratic primaries in which black-preferred 
Hispanic candidates prevailed.16

In short, the evidence shows that the black-preferred 
candidate won 40% of the Democratic primaries and half of the non- 
exogenous judicial elections, including elections with Hispanic 
candidates. The record also shows that black judges have 
consistently made up a greater proportion of the Tarrant County 
bench than the proportion of black voters in the Tarrant County's 
population.

15We note that there were four other viable Democratic 
candidates in the 1988 primary, so that Jackson could expect to 
receive only 20% of the white vote if that vote were randomly 
distributed.

16Taebel's exhibits also include a 1982 County Court primary in 
which the black-preferred candidate, Hicks apparently won by seven 
votes. However, this tabulation is apparently based on election 
returns prior to a recount under which Hicks apparently lost.

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Finally, the undisputed evidence showed that black candidates 
won as great a share of white votes as white candidates, if we 
control for party affiliation. For instance, Sturns, a black 
Republican with a long history of involvement in civil rights and 
black community organizations, won 57% of the white vote to beat a 
white Democrat. Wayne Salvant, another black Republican, also won 
a majority of the white vote, although he lost his race for a 
district court judgeship to a white Democrat supported by a 
combination of black voters, Hispanic voters, and white Democrats. 
Black Republicans also won the same share (50%) of their elections 
as white Republicans.

A prima facie case of vote dilution requires proof that the 
white bloc majority is "usually . . . able to defeat candidates 
supported by a politically cohesive, geographically insular 
minority group." Gingles. 106 S.Ct. at 2766 (emphasis in 
original). The plaintiffs failed to prove that the minority- 
preferred candidate was usually defeated in Tarrant County and 
therefore, failed to prove a prima facie case of vote dilution.

The district court by contrast, found that the black-preferred 
candidate was consistently defeated in Tarrant County. The 
district reached this conclusion by ignoring elections in which 
Hispanics had participated. This rejection of white-Hispanic 
elections was erroneous. The undisputed facts as reflected by 
Taebel's exhibits are that a majority of Hispanic voters always 
supported the candidate favored by black voters in every general 
election. The district court found that Hispanic and black voters

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were cohesive in Midland, Lubbock, and Ector counties on similar 
evidence. With virtually identical proof in Tarrant County the 
same conclusion must follow, and we hold that it does.

Given that black and Hispanic voters cohesively shared 
political interests, Hispanic candidates were capable of 
representing these shared interests. Hispanic candidates, in 
short, represented "viable minority candidates" within the meaning 
of Gretna. It follows that white-Hispanic elections were relevant 
in determining the success of black-preferred candidates. 
Considering such elections, it is clear that the black-preferred 
candidates were not consistently defeated. Considering white- 
Hispanic races, the black-preferred candidate won four out of nine 
elections— 44.4% of the time. Excluding the three state-wide 
exogenous elections for Supreme Court and Attorney General, the 
black-preferred candidate won three out of six elections— or 50% of 
the time. Exogenous elections are generally less probative of the 
local communities' political culture and are therefore less 
probative of polarized voting than non-exogenous elections. 834 
F.2d at 502. This is not the "consistent defeat" required by 
Ginoles.

Moreover, blacks were not underrepresented on the Tarrant 
County bench. Plaintiffs' own exhibit indicates that, for four of 
the five years studied, three of Tarrant County's district court 
judges were black; for these four years, while blacks made up only 
11.8% of the population of Tarrant County, more than 13% of the 
Tarrant County bench was black. Given this persistent and

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substantial black presence on the Tarrant County bench, the 
consistent and substantial success of the minority-preferred 
candidate, and the absence of any evidence of racial politics in 
Tarrant County, we find that, even if the plaintiffs had proven the 
three Gincrles factors, the district court clearly erred in finding 
that the illegal vote dilution under the totality of the 
circumstances. There is no case as a matter of law in Tarrant 
County.
D. Travis County

There are 13 district judges elected in Travis County. From 
1985 to 1988, there was one Hispanic district judge, or 7.7% of the 
total number. This judge was defeated in 1988. The undisputed 
expert testimony and surveys of defendants showed that Hispanic 
lawyers made up at most 3.9% of the lawyers in Travis County. 
There are 312,392 voting age residents in Travis County. 44,847 
have Spanish surnames. Only 29,067 are black. Plaintiffs proceed 
on behalf of Hispanic voters in Travis County.

Plaintiffs' witnesses stated that the Republican Party is 
insignificant in Travis County and the proper testing ground for 
candidates is the Democratic primary. Plaintiffs analyzed three 
Democratic primary elections for district court positions. 
Defendants analyzed four exogenous general elections, one for state 
senator, two for Supreme Court justice, and one for Attorney 
General; four exogenous primary elections, one for state senator, 
one for Supreme Court justice, and two for appellate court justice; 
and the three indigenous elections analyzed by plaintiffs.

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By Taebel's analysis, the Hispanic-preferred candidate won all 
four exogenous general elections. In three of the four, the 
Hispanic-preferred candidate won a majority of the Anglo vote. The 
Hispanic-preferred candidate also won two exogenous primaries, for 
Supreme Court and state senator, out of the seven primaries. The 
Hispanic-preferred candidate, therefore, won 54.55% of both the 
primaries and general elections studied, giving the exogenous 
primary and general election races for intermediate appellate 
courts and the Supreme Court the same weight given to the three 
entirely indigenous primary elections studied by plaintiffs.

The district court however, found that the three indigenous 
primary elections for district court positions were "closer in 
nature to District Court elections" and were sufficient to show a 
pattern of racial bloc voting sufficient to defeat the Hispanic- 
pref erred candidate. The district court therefore relied solely on 
the three elections analyzed by both Taebel and Brischetto to find 
that the Hispanic-preferred candidate lost 100% of the time.

In each of the three district or county court primary 
elections analyzed by the plaintiffs, the Hispanic and Hispanic- 
preferred candidate was defeated by a white majority. In one of 
these races, however, white voters gave their support to a black 
candidate and thereby defeated both a Hispanic and a white 
candidate. The black candidate, Brenda Kennedy, had the 
overwhelming support of black as well as white voters, so it is 
difficult to conclude that Celia Castro and Robert Hughes, the 
Hispanic and white candidates respectively, were defeated by a

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white bloc. They were defeated by a black-white coalition. 
Castro's defeat is not evidence of the white majority's ability 
"usually to defeat the minority's preferred candidate." Gingles, 
106 S.Ct. at 2766-67.

The two remaining primary elections are too meager a proof to 
support a finding of liability, even if we disregard Texas' linkage 
interest. It was clear error for the district court to find 
otherwise. Plaintiffs' proof reduces to three facts: (1) two 
Hispanic and Hispanic-preferred candidates lost in 1988 in their 
Democratic primary races for district and county court judgeships; 
(2) only one Hispanic has served on the district court bench 
between 1985 and 1988, while no Hispanic served in 1989; and (3) 
Hispanics had suffered from past discrimination in Travis County.

In finding clear error, we repeat Justice Brennan's admonition 
that "the usual predictability of the majority's success 
distinguishes structural dilution from the mere loss of an 
occasional election." Ginales. 106 S.Ct. at 2767. It defies 
common sense to believe that the loss of two races in one year 
constitutes usual and predictable defeat by a white bloc, rather 
than simply "loss of an occasional election." However, assuming 
arguendo that these two elections constituted sufficient proof of 
the third Gingles factor, they are too meager to show dilution 
under the totality of the circumstances, as a matter of law. The 
plaintiffs contend that Hispanics are underrepresented on the 
Travis County bench. Hispanics make up 7.7% of the Travis County 
bench in four out of five years, while they make up, at most, 3.9%

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of the Travis County bar. Given such a small pool of eligible 
candidates, it is not surprising that Hispanics make up such a 
small proportion of the Travis County bench. One need not assume 
racial bias among voters to explain such a result.

The cause of the low number of Hispanic district judges in 
Travis County need not be attributed to the interaction of racial 
bias with the at-large system. Rather, it is equally likely such 
low numbers were the result of a dearth of eligible Hispanic 
candidates. The plaintiffs can point to only one race in which a 
Hispanic candidate lost an election for district court— Gallardo's 
1988 defeat by Scott McCown. However, even if Gallardo had won 
this race, the Hispanic share of Travis County's bench would be 
only 2 out of 13 — 15.4%, or 2% less than the number of Hispanics in 
the population. Gallardo's victory, of course, would not affect 
Hispanic representation in 1985, 1986, and 1987. It is pure 
speculation to attribute the low number of Hispanic judges to 
racial discrimination, given the low number of eligible candidates. 
To find dilution on the basis of these low numbers is clear error.

Far from signaling a submerging of minority voting strength by 
an intervention of elective processes and bias, the undisputed 
facts indicate that Travis County's political system is open to 
Hispanic and white candidates alike. Hispanics won half of the 
four exogenous primary elections for Supreme Court, Court of 
Appeals, and State Senator produced by the defendants. The 
Hispanic-preferred candidate also won all four of the general 
elections produced by the defendants. The City of Austin contains

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most of Travis County's population. As this court noted in
Overton v. City of Austin. 871 F.2d 529, 540 (5th Cir. 1989),

Austin has repeatedly elected black and Mexican-American 
council members during the past 17 years. . . . [T]he
winning minority candidates freguently received well over 
fifty percent (50%) of the Anglo vote and were also the 
preferred candidates of the minorities. Minority 
candidates have routinely been elected to other posts in 
Austin and the surrounding Travis County.

The defendants produced uncontradicted evidence that Hispanic
County Commissioners had been elected from predominantly Anglo
districts and won Anglo precincts and that John Trevino, a Hispanic
City Council member, had been elected in city-wide elections to the
Austin City Council. Against this background of minority success,
plaintiffs' minimal case, based on two defeats of the Hispanic-
preferred candidate by a white majority, is plainly insufficient to
prove illegal vote dilution.

There was no evidence that racial politics defeated the two 
Hispanic-preferred candidates, Juan Gallardo and Alberto Garcia. 
The district court found no Zimmer factors indicating that race 
played any part in any election, such as racial appeals or 
unresponsiveness of elected officials to minority constituents. 
The only Zimmer factors found by the district court concerned the 
absence of single-shot voting and majority runoff requirement. 
Their only relevance is a tendency to enhance the effect of racial 
politics, not to prove racial politics' existence.
E. Bexar County

672,220 voting age residents reside in Bexar County. Of 
these, 46,767 (7.0%) are black, and 278,577 (41.4%) are Hispanic.

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nineteen district judges are elected from Bexar County. Of this 
number, five (26.3%) were Hispanic. Defendants' undisputed 
evidence shows that 11.7% of the lawyers in Bexar County were 
Hispanic. Plaintiffs proceed on behalf of Hispanic voters in Bexar 
County.

Plaintiffs and defendants analyzed six district court general 
elections with Hispanic candidates. Defendants also analyzed two 
appellate court and three county court elections with either 
Hispanic or black candidates. As in every other county, Hispanics 
voted cohesively for the Democratic candidate while Anglos 
supported the Republican candidate.

In the twelve studied elections, the Hispanic-preferred 
Democratic candidate won four times, 33.3%. The Republican 
candidate usually won the general election, and always won the 
Anglo vote, regardless of the candidate. There were four 
exceptions to this pattern: (1) the 1980 appellate court race 
between Murry and Esquivel; (2) the 1980 district court race 
between Prado and Priest; (3) the 1988 district court race between 
Bowles and Mireles; and (4) the 1988 county court race between 
Patterson and Canales. In these races, Priest, an Anglo Democrat, 
beat Prado, a Hispanic Republican, while Esquivel, Mireles, and 
Canales, Hispanic Democrats, beat their Anglo Republican opponents.

We find, however, that partisan affiliation does not 
completely explain the voting patterns in the Democratic primary 
elections. By defendants' own evidence of Democratic primaries in 
Bexar County, the Hispanic-preferred candidate lost in nine of

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fourteen elections, prevailing only 35.7% of the time, when Anglo 
voters voted for the Hispanic candidate's Anglo opponent. White 
support for the Hispanic candidate was seldom above 30% and as low 
as 1%— whereas the Hispanic vote for the Hispanic-preferred, and 
always Hispanic, candidate was above 70% for all but four of the 
unsuccessful candidates.

Although the evidence may create a fact-issue as to whether 
there was dilution, there is no fact-issue as to whether the proof 
of dilution was tenuous. As in Harris County, the undisputed facts 
indicated Anglo voters would invariably support minority candidates 
of their preferred party and that minority-preferred candidates 
could prevail even when a majority of Anglo voters opposed them. 
Given these facts and a complete absence of substantial evidence of 
racial politics, any proof of dilution was meager at best and 
therefore could not overcome Texas' linkage interest as a matter of 
law.

The undisputed facts indicate that partisan affiliation 
accounts for much of the voting patterns analyzed by the parties. 
Most white voters are Republicans, most Hispanic voters are 
Democrats; the Republican candidate generally wins because the 
Republican party has more supporters. As in Harris County, white 
voters give a majority of their votes to Republicans and Hispanic 
voters give a majority of their votes to Democrats even when 
Hispanic Republicans are opposed by white Democrats. Prado and 
Barrera, Hispanic Republicans, won 70% and 84% of the estimated 
white vote respectively when running against white Democratic

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opponents, who received the overwhelming majority of the Hispanic 
vote.

Because Hispanic voters make up 41% of the population, they 
can elect Democratic candidates with minimal white support and do 
so repeatedly. The minority-preferred candidate won four out of 
twelve elections in which a Hispanic candidate participated— 33% of 
the time— with as little as 17% of the white vote. As in Harris 
County, Hispanic voters were plainly a potent political force that 
could elect candidates by forming coalitions with small percentages 
of white voters. If Bexar County were sub-districted, Hispanic 
voters might elect a few more of their preferred candidates, but 
only at the price of losing their influence over the majority of 
Bexar County judges. The perversity of such a result is self- 
evident .

Finally, the evidence that elections were affected by racial 
politics preventing the formation of such coalitions is thin. As 
in Harris County, it consisted solely of (1) the general history of 
past discrimination; (2) the usual enhancing factors present in 
every Texas county— anti-single shot voting and majority runoff 
requirement; and (3) the fact that Hispanic judges occupied only 
five out of nineteen district judgeships— 26% of the total— when 
Hispanics made up 41% of Bexar County's population. Again, we note 
that Hispanic attorneys made up only 11% of the bar, so that the 
representation of attorneys on the bench is actually higher than 
would be produced by random choice from the pool of eligible

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candidates. This evidence, even if probative of racial vote 
dilution, is as meager as the evidence in Harris County.

The lingering effects of past discrimination, including 
evidence of low Hispanic voting registration, would exacerbate any 
racial politics in Bexar County. However, as we noted regarding 
Harris County, such evidence is, at best, weak circumstantial 
evidence that the minority-preferred candidate was defeated on 
account of race-conscious politics. The effects of past 
discrimination, therefore, does little to strengthen plaintiffs' 
proof in the area where it is weakest.

The undisputed facts compel the conclusion that whatever 
dilution could have been found by the district court was marginal 
at best and cannot as a matter of law outweigh Texas' substantial 
state interest. If Texas' linkage interest does not outweigh thiŝ  
proof of dilution, then the interest would be a nullity. We hold 
that plaintiffs' proof fails in Bexar County as a matter of law.
F. Jefferson County

There are 8 district judges elected in Jefferson County. No 
black Judge has been elected there between 1985 and 1989. 
Defendants' evidence showed that 3.1% of the attorneys in Jefferson 
County are black. Depending on the survey examined, the evidence 
showed that between 14 and 17 black lawyers reside in Jefferson 
County. The Jefferson County district court judges have filed an 
amicus brief requesting judicial notice that John Paul Davis, a 
black, was elected to the county court in 1990. The amicus brief 
also notes that Morris Overstreet, a black Democrat, and Dan

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Morales, a Hispanic Democrat, won a majority of votes in Jefferson 
County for state appellate court judge and Attorney General 
respectively in 1990. 179,708 people reside in Jefferson County 
who are of voting age. Of this number, 44,283 (24.6%) are black. 
Plaintiffs proceed on behalf of black voters in Jefferson County.

Brischetto analyzed eight primary and run-off elections 
including the 1988 Democratic Presidential Primary. Taebel 
analyzed four primaries and two general elections involving either 
blacks or Hispanics, all exogenous elections. Unlike their other 
studies, Brischetto and Taebel analyze totally different elections.

In all but one of the elections analyzed by Brischetto, the 
black vote was cohesive. In one case, the black-preferred 
candidate won a high plurality (47%) of the black vote. A majority 
of white voters always opposed the minority-preferred candidate in 
the primary elections.

Whether the black-preferred candidate was consistently 
defeated by the white bloc is a close question. The answer varies 
with the elections counted and how they are counted. Defendants 
point to two exogenous primaries (one for Supreme Court, and one 
for state appellate court) and two primaries for state 
representative in which black or Hispanics participated. In three 
of these, the black-preferred candidate prevailed. Defendants also 
rely on two exogenous general elections, for Supreme Court and 
Attorney General, in which Hispanic candidates participated in 
which both of the black-preferred candidates prevailed. Plaintiffs

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offer six indigenous primaries, four for justice of the peace,17 
one for county court, and one for U.S. President, in which black 
candidates participated. The black-preferred candidate prevailed 
only once, when Jesse Jackson won a plurality in the Democratic 
Presidential primary of 1988.

Unlike Tarrant County, defendants' exhibits do not include 
estimates of how Hispanic residents in Jefferson County voted. We 
cannot find from the undisputed facts that Hispanic and black 
voters were politically cohesive in Jefferson County. It is 
possible, therefore, that white-Hispanic elections are entitled to 
less weight in a determination of the minority-preferred 
candidate's success than black-white races.

However, even if we confine our consideration to the elections 
analyzed by the parties in which black candidates participated, we 
find that the plaintiffs' evidence is inadequate to prove that 
black voters were denied an equal opportunity to participate in the 
political process so as to overcome the state's linkage interest. 
The plaintiffs and defendants together produced evidence of eight 
primary elections in which black and black-preferred candidates had 
participated. The black-preferred candidate won 3 primaries out of 
these eight elections— a victory rate of about 38%. All three of

pThe black-preferred candidate prevailed in only six out of 
the fourteen elections, or 42.86% of the time, counting Freeman's 
failure to win the highest plurality in the 1972 and 1974 
Democratic primaries for justice of the peace as "defeats" separate 
from Freeman's defeat in the run-off elections. However, Freeman 
won the second highest number of votes and was therefore able to 
compete in the subsequent run-off elections. We do not consider 
Freeman's primary elections to be separate from the run-off 
elections.

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the black-preferred candidates' victories were exogenous: Jesse 
Jackson won the 1988 Democratic Presidential primary in Jefferson 
County, while Price won two Democratic primaries for state 
representative.

As in every other county but Dallas, the district court found 
no sign of racial appeals or non-responsiveness on the part of 
elected officials to the concerns of black constituents. The 
statistics indicated that the white vote did not monolithically 
throw its power against the black-preferred candidate. Price won 
the Democratic nomination for state representative with over 40% of 
the white vote in his two primary races. The minority-preferred 
candidate also prevailed in every general election submitted by the 
parties.

The plaintiffs' case was further weakened by their use of 
extremely dated statistics: three of their five elections came from 
elections held in 1972, 1974, and 1978. This is hardly a practical 
and searching appraisal of contemporary conditions in Jefferson 
County. See Nipper v. Chiles. 795 F. Supp. 1525, 1540 (M.D. Fla. 
1992) (noting limited probative force of "stale" elections).
G. Midland County

There are three district judges in Midland County; none are 
Hispanic or black. Defendants' undisputed survey evidence shows 
that 10 black or Hispanic lawyers reside in Midland County. The 
County contains 82,636 voting age residents, 6,893 (11.9%) of whom 
have Spanish surnames and 4,484 (7.8%) of whom are black.

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Plaintiffs analyze three general elections in Midland County, 
two of which are the exogenous Gonzalez races for Supreme Court and 
one of which is an indigenous race by a black candidate for a 
Justice of the Peace position in 1986. Defendants also analyze 
Gonzalez's two bids for the Supreme Court in 1986 and 1988, as well 
as two Democratic and two Republican primaries in which either a 
black or Hispanic candidate participated. Defendants also analyze 
the Mattox-Barrera race for Texas Attorney General.

The analysis of both parties shows that the majority of whites 
always opposed the candidate preferred by the geographically 
compact and cohesive combined minority population in the general 
elections. The minority-preferred candidate was always defeated by 
this white majority.

We find that the district court clearly erred in finding 
dilution. The undisputed facts indicate that partisan affiliation, 
not race, caused the defeat of the minority-preferred candidate. 
The majority of minority voters always cast their votes in favor of 
the Democratic candidate. The white voters cast the majority of 
their votes for the Republican, regardless of the race of the 
Republican candidate. Indeed, Barrera, the Hispanic Republican 
candidate for Attorney General, won 76% of the white vote when 
running against Mattox, a white Democrat— the second highest vote 
received by any of the four Republicans who ran in the analyzed 
general elections. Because Republican voters outnumbered

Plaintiffs proceed on behalf of both Hispanic and black voters in
Midland County.

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Democratic voters, the minority-preferred Democratic candidate 
consistently lost. The plaintiffs have not met the third 
requirement of Gingles.

Even if plaintiffs could meet the Gingles threshold, the 
totality of circumstances does not add up to dilution. The 
plaintiffs can show only a general history of discrimination and a 
lack of minority judges. The latter fact proves little: in Midland 
County, only one minority lawyer has ever run for local office, 
according to the plaintiffs' exhibits, and none has ever run for a 
district court position. These low numbers are a reflection of low 
numbers of eligible candidates. According to the defendants' 
undisputed surveys, there were only ten minority lawyers residing 
in Midland County in 1989. As we have noted above, a general 
history of discrimination, without more, cannot show dilution.

Because the undisputed facts show that partisan affiliation 
uninfected by racial politics caused the minority-preferred 
candidates' defeat, we hold that the district court erred in 
finding dilution.
H. Lubbock Counties

There are five district judges elected from Lubbock County. 
None are black or Hispanic. The surveys introduced by the 
defendants indicate that 22 or 23 black or Hispanic lawyers reside 
in Lubbock County. The total voting age population is 150,714 
people. Of this number, 22,934 (15.2%) have Spanish surnames, and 
9,5090 (6.4%) are black, yielding a combined minority percentage of

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None of the parties analyze indigenous elections in Lubbock 
County; no minority has ever run for a position on the district 
court. Plaintiffs analyze two exogenous primaries and two 
exogenous general elections, for the Supreme Court and for the 
court of criminal appeals. Defendants analyze the same two general 
elections, adding a further exogenous general election for Attorney 
General of Texas.

Plaintiffs' and defendants' evidence showed that blacks and 
Hispanics tend to vote cohesively. There is also no dispute that 
the majority of white voters vote against the candidate favored by 
the minority voters in Lubbock County in all the elections studied.

As in Midland County, however, the undisputed facts show that, 
in general elections, partisan affiliation and not racial politics 
caused the consistent defeat of the minority-preferred candidate. 
The data indicated that, in both counties, 60%-65% of the white 
voters supported the Republican candidate, while the majority of 
minority voters supported the Democratic candidate. As a result of 
this voting pattern, the minority-preferred, and always Democratic, 
candidate consistently lost to his Republican opponent, regardless 
of the ethnicity of the candidates.

In the 1986 and 1988 races for the Texas Supreme Court, 
Gonzales, Hispanic Democrat, lost Lubbock County's vote to Bates 
and Howell, white Republican opponents. However, in his race for 
the position of Texas Attorney General, Mattox, a white Democrat,

21.6%. Plaintiffs proceed on behalf of the combined Hispanic and
black voters in Lubbock County.

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lost to Barrera, a Hispanic Republican. Like Howell and Bates, 
Barrera took a majority of the white votes, while his white 
opponent, Mattox, took a majority of the minority votes. In short, 
the defendants established as a matter of law that voting patterns 
in these two counties were unaffected by the race of the candidates 
but rather were the result of partisan loyalty. Therefore, 
plaintiffs have not met the third Ginales factor.

Additionally, the totality of circumstances cannot support 
dilution. As in Midland County, the countervailing evidence of 
racial politics was too slender to create a fact issue. Although 
there were no minority judges on the Lubbock County bench, no 
minority candidate ever ran for such a position. The dearth of 
minority candidates, in turn, is not probative of race-conscious 
politics in light of the defendants' undisputed estimate that only 
23 minority lawyers reside in Lubbock County.

The plaintiff also relied on two exogenous Democratic primary 
elections for state appellate and Supreme Court positions.18 
However, the minority-preferred candidate won a majority of the 
votes cast in one of the two elections included in the plaintiffs' 
exhibits. Balancing Martinez's defeat, Gonzales won a majority of 
the votes cast in the Lubbock County Democratic primary for state 
Supreme Court. These primary races, therefore, do not indicate

18We hold that the runoff election subsequent to a primary 
election is a single election for the purposes of computing the 
success or failure of the minority-preferred candidate. The victor 
of the runoff election is the victor of the combined primary/runoff race.

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that the minority-preferred candidate was consistently defeated 
within the meaning of Ginales. and they cannot establish dilution.
I. Ector County

There are four district judges in Ector County. All are 
Anglo. Defendants' surveys estimated that six black and Hispanic 
attorneys reside in Ector County. Ector County has 79,516 voting 
age residents. 14,147 (17.8%) are Hispanic, while 3,255 (4.1%) are 
black. Plaintiffs proceed on behalf of the combined minority 
population in Ector County.

The parties rely on the same exogenous races in Ector County 
that they produced in Lubbock. The plaintiffs rely on two primary 
and two general elections of Gonzalez and Martinez for Supreme and 
appellate court respectively. The defendants add the Mattox- 
Barrera race for Attorney General.

The undisputed facts indicate that the minority-preferred, 
Democratic candidates were consistently defeated in general 
elections by a white majority voting for their Republican 
opponents. The undisputed facts also indicate that the minority- 
preferred candidate won half of the Democratic primary races and 
therefore was not consistently defeated in the primaries: Martinez 
won a majority of the votes cast in the Democratic primary.

As in Lubbock County on virtually identical facts, we find 
that the district court clearly erred in finding racial vote 
dilution. The undisputed facts indicate that partisan affiliation 
controlled the outcomes of the general elections: as in Lubbock 
County, while Hispanic Democratic candidates lost the white vote,

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Barrera, a Hispanic Republican, won a majority of the white vote 
running against Mattox, his white Democratic opponent.

While partisan affiliation would not explain polarization in 
the Ector County Democratic primaries, the undisputed facts 
indicate that the minority-preferred candidate was not consistently 
defeated by racial polarization in the primary elections, but 
rather won half of the two races analyzed. Plaintiffs have failed 
to meet the third threshold requirement of Ginales.

IV. Conclusion
We find that the district court erred by holding that the at- 

large method of electing judges violated § 2 in any of the nine 
counties. Defendants prevail by two routes. Either the evidence 
was insufficient to support a conclusion of vote dilution, or the 
proof of dilution was so meager as to be outweighed by the linkage 
interest as a matter of law.

There was no evidence that white voters refused to support 
black candidates. In all counties, white voters supported the 
minority candidate of their preferred party. There was no evidence 
that minority candidates could not be elected in any county. In 
all counties, minority candidates were elected with support from 
the white community. In the one alleged racial incident in a 
judicial race, the minority-preferred candidate, a black, won with 
61% of the white vote. Any racial appeal was rejected.

In short, in the totality of the circumstances, plaintiffs 
produced no substantial evidence to override the state's 
substantial interest. Plaintiffs failed to prove a dysfunction

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traceable to race or color in the political climate of the 
contested counties. Absent such dysfunction, there is little 
indication that minority voters could not influence elections 
through the normal mechanisms of interest-group democracy despite 
the defeats of the minority-preferred candidate. Ending the 
county-wide election of district judges would only reduce minority 
influence by denying minority voters any say in the election of a 
judge that by large odds will preside over any dispute of their own 
or their family. This perversity coupled with the problematic 
proof of any dilution on account of race leaves the weighing of 
totality of the circumstances so plain as to permit only one 
outcome.

REVERSED.