Gomez v. City of Watsonville Brief Amicus Curiae

    UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 87-1751

DOLORES CRUZ GOMEZ, PATRICIA LEAL 
and WALDO RODRIGUEZ,
Plaintiffs-Appellants

v.
CITY OF WATSONVILLE, 
Defendant-Appellee.

On Appeal from the United States District Court 
for the Northern District of California

Honorable William A. Ingram

BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON PAMELA S. KARLAN
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

Counsel for Amicus Curiae



Table of Authorities ......................................  ii
Introduction ..............................................  1
Argument ..................................................  5
I. The Plaintiffs in this Case Satisfied the "GeographicCompactness" Requirement ............................. 5

A. A Finding of Geographic Compactness Does Not
Depend on the Ability to Draw a Plan That 
Places All Minority Voters in Predominantly 
Minority Districts ............................... 5

B. The District Court Failed to Consider the
Discriminatory Impact of Watsonville's Entire Electoral Structure .............................. 8

C. The District Court Had the Duty To Develop a 
Remedy That Cured the Dilution of Hispanic
Voting Strength in Watsonville ..................  10

II. The District Court Misconstrued the "Political
Cohesiveness" Requirement ............................  13
A. The Presence of "Political Cohesiveness" Must

Be Discerned By Looking at the Actual Voting Behavior of Minority Voters .....................  13
B. The District Court's Approach to the Question of 

Political Cohesiveness Focused on the WrongIssues ..........................................  15
1. The District Court Misunderstood the Relevance

of Socioeconomic Characteristics ...........  17
2. The District Court Misunderstood the Relevance

of Low Hispanic Turnout .....................  19
Conclusion ................................................  23
Certificate of Service .................................... 24

TABLE OF CONTENTS
Page



TABLE OF AUTHORITIES

Bolden v. City of Mobile, 542 F. Supp. 1050
(S.D. Ala. 1982) .................................... 12

Campos v. City of Baytown, Civ. Act. No. H-85-1021
(S.D. Tex. Jan. 5, 1987)   8

Chapman v. Meier, 420 U.S. 1 (1975) .....................  11
City of Rome v. United States, 446 U.S. 156(1980)   9
Conner v. Finch, 431 U.S. 407 (1977) ....................  11
Cross v. Baxter, 604 F.2d 875 (5th Cir. 1979) ...........  20
Dillard v. Crenshaw County, 640 F. Supp. 1347, 649

F.Supp. 289 (M.D. Ala. 1986)   12
Gaston County v. United States, 395 U.S. 285 (1969) .....  20
Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984)

(three-judge court), aff'd sub nom. Thornburg v.
Gingles, 478 U.S. ___ (1986) ....................  6,7,8,17

Ketchum v. City Council of City of Chicago, 630
F. Supp. 551 (N.D. 111. 1985)   8

Kirksey v. Board of Supervisors, 534 F.2d 139 (5th Cir.)
(en banc), cert, denied. 434 U.S. 968 (1977) ......  19

McNeil v. City of Springfield, No. 86-2365 (C.D.
111., Jan. 12, 1987) .............................. 8,9,12

Martin v. Allain, Civ. Act. No. J84-0708(B) (S.D. Miss.,
Apr. 1, 1987) .......................................  21,22

Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978),
cert, denied. 446 U.S. 951 (1980 ...................  9

Perkins v. City of West Helena, 675 F.2d 201 (8th Cir.),
aff'd. 459 U.S. 801 (1982) .......................... 9

Rogers v. Lodge, 458 U.S. 613 (1982) ....................  10
Thornburg v. Gingles, 478 U.S, ___, 92 L.Ed.2d 25

(1986) ..........................................  2,passim

Cases Page

ii



United Jewish Organizations v. Carey, 430 U.S. 144(1977)   7
United States v. Dallas County Commission, 739F. 2d 1429 (11th Cir. 1984) .......................... 19
United States v. Marengo County Commission, 731 F.2d 1546

(11th Cir. 1984) ................................ 9,20,21
Velasquez v. City of Abilene, 725 F.2d 1017 (5th Cir.1984)   9
White v. Regester, 412 U.S. 755 (1973)   9,10
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)

(en banc), aff'd on other grounds sub nom.
East Carroll Parish School Board v. Marshall,
424 U.S. 636 (1976) (per curiam) ....................  9,11

Statutes
Voting Rights Act of 1965, § 2, 42 U.S.C. § 1973 .....  2,passim
Other Authorities
H.R. Rep. No. 97-227 (1982) ...........................  9
S. Rep. No. 97-417 p. 33 (1982) ....................  2,passim
U.S. Bureau of the Census, Current Population Reports,
Series P-20, No. 405, Voting and Registration in theElection of November 1984   21
S. Verba & N. Nie, Participation in America (1972) .....  21
R. Wolfinger & S. Rosenstone, Who Votes (1980) ..........  21
Note, Alternative Voting Systems As Remedies for Unlawful

At-Large Systems, 92 Yale L.J. 144 (1982) ..........  11

£ase Page

iii



No. 87-175
--------------------------------------------- x
DOLORES CRUZ GOMEZ, PATRICIA LEAL, and :
WALDO RODRIGUEZ,

Plaintiffs-Appellants, :
v. :

CITY OF WATSONVILLE, :
Defendant-Appellee. :

--------------------------------------------------------

Amicus curiae NAACP Legal Defense and Educational Fund, 
Inc., submits this brief in support of the position of 
plaintiffs-appellants. The interest of amicus is set out in the 
accompanying motion for leave to file this brief.

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

INTRODUCTION

In 1982, Congress amended section 2 of the Voting Rights Act 
of 1965, 42 U.S.C. § 1973,1 to make clear that the touchstone of

1In pertinent part, amended section 2 provides that:
(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 of 
abridgement of the right of any citizen of the United 
States to vote on account of race or color, or in 
contravention of the guarantees set forth in section 
4(f)(2), as provided in subsection (b).

(b) A violation of subsection (a) of this section is established if, based on the totality of 
circumstances, it is shown that the political processes 
leading to nomination or election . . . are not equally 
open to participation by members of a class of citizens



a Voting Rights Act violation is whether "a particular election 
method . . . den[ies] minority voters equal opportunity to
participate meaningfully in elections," S. Rep. No. 97-417, p. 33 
(1982) ["Senate Report"],2 and not whether the method was adopted 
or maintained with a discriminatory purpose. See id. at 2, 15- 
16, 27.

The Supreme Court first interpreted amended section 2 in
Thornburg v. Ginqles. 478 U.S. ___, 92 L.Ed.2d 25 (1982). There,
in the context of a challenge to five multimember districts in 
the North Carolina Legislature, the Court described three 
circumstances that a plaintiff challenging at-large elections 
should "generally" show to prove a violation.of section 2, id. at 
45:

First, the minority group must be able to demonstrate 
that it is sufficiently large and geographically 
compact to constitute a majority in a single-member 
district. If it is not, as would be the case in a 
substantially integrated district, the multimember form 
of the district cannot be responsible for minority 
voters' inability to elect its [sic] candidates. . . . Second, the minority group must be able to show that it

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 . . .  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.
2The Supreme Court has recognized the Senate Report as "the 

authoritative source" for discerning Congress' intent in amending 
section 2. Thornburg v. Gingles, 92 L.Ed.2d at 42, n. 7.

2



is politically cohesive. If the minority group is not 
politically cohesive, it cannot be said that the 
selection of a multimember electoral structure thwarts 
distinctive minority group interests. . . . Third, the
minority must be able to demonstrate that the white 
majority votes sufficiently as a bloc to enable it— in 
the absence of special circumstances . . .—  usually to 
defeat the minority's preferred candidate. . . .  In 
establishing this last circumstance, the minority group 
demonstrates that submergence in white multimember 
district [sic] impedes its ability to elect its chosen representatives.

92 L.Ed.2d at 46-47 (emphasis in original; footnotes and 
citations omitted).

The standard enunciated in Ginoles represents the Supreme 
Court's distillation from the Senate Report of those factors 
particularly applicable to claims regarding at-large elections. 
See id. at 45 and n. 15.3 But the Senate Report itself made

3The Senate Report listed these "[t]ypical factors" that may 
combine with a challenged electoral structure or practice to deny 
minorities an equal opportunity for meaningful political participation:

1. the extent of any history of official 
discrimination in the state or political subdivision 
that touched the right of the members of the minority 
group to register, to vote, or otherwise to participate in the democratic process;

2 . the extent to which voting in the elections of 
the state or political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election 
districts, majority vote requirements, anti-single shot 
provisions, or other voting practices or procedures 
that may enhance the opportunity for discrimination against the minority;

4. if there is a candidate slating process, 
whether the members of the minority group have been denied access to that process;

5. the extent to which members of the minority 
group in the state or political subdivision bear the 
effects of discrimination in such areas as education, 
employment and health, which hinder their ability to

3



clear that "there is no requirement that any particular number of 
factors be proved, or that a majority of them point one way or 
the other" for a court to find a violation of section 2 . Id. at 
29. The three-part test set out in Gingles must therefore be 
applied in light of Congress' rejection of a "formalistic" 
approach to section 2 claims in favor of a "functional" view of 
the political process, id. at 30, n. 120.

In this case, the district court employed an excessively 
formalistic view of the Gingles test. It discussed "geographic 
compactness" and "political cohesiveness" as if they were self- 
contained, technical inquiries, rather than means of addressing 
the real question in a section 2 case: whether "a certain 
electoral law, practice or structure interacts with social and 
historical conditions to cause an inequality in the opportunities

participate effectively in the political process;
6. whether political campaigns have been 

characterized by overt or subtle racial appeals;
7. the extent to which members of the minority 

group have been elected to public office in the jurisdiction.
Senate Report at 28-29 (footnotes omitted). The Report also 
noted two additional factors which "in some cases have had probative value":

whether there is a significant lack of 
responsiveness on the part of elected officials to the 
particularized needs of the members of the minority group.

whether the policy underlying the state or 
political subdivision's use of such voting 
qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

Id. at 29 (footnotes omitted).
4



enjoyed by black and white voters to elect their preferred 
representatives." Ginales. 92 L.Ed.2d at 44.

ARGUMENT

I• The Plaintiffs in this Case Satisfied the 
"Geographic Compactness" Requirement

In Ginales, the Supreme Court noted that "the use of 
multimember districts generally will not impede the ability of 
minority voters to elect representatives of their choice . . . . 
[unless the minority group] is sufficiently large and 
geographically compact to constitute a majority in a single­
member district." 92 L.Ed.2d at 45, 46 (emphasis added). The 
court below elevated this observation to the status of a rigid 
threshold requirement that precludes section 2 claims unless 
jurisdictions are so segregated that single-member districting 
would place virtually the entire minority community in districts 
where they constitute a majority of the population. The Voting 
Rights Act contains no such "ghetto requirement."

A. A Finding of Geographic Compactness Does Not 
Depend on the Ability to Draw a Plan That 
Places All Minority Voters in Predominantly Minority Districts

Ginqles' emphasis on "geographic compactness" reflects the 
theory under which the case was litigated. The North Carolina 
Legislature consisted of both single-member and multimember 
districts. As described by the district court:

The gravamen of plaintiffs' claim is that the plan
[apportioning the Legislature] makes use of multi-

5



member districts with substantial white voting 
majorities in some areas of the state in which there 
are sufficient concentrations of black voters to form 
majority black single-member districts, and that in 
another area of the state the plan fractures into 
separate voting minorities a comparable concentration of black voters . . . .

Ginales v. Edmisten. 590 F. Supp. 345, 349 (E.D.N.C. 1984) 
(three-judge court), aff'd sub nom. Thornburg v. Ginales. 478
U.S. ___ (1986). Thus, Ginales raised a claim of "vote dilution
through submergence" of large, geographically compact groups of 
black voters into multimember, majority-white districts.
Ginales. 92 L.Ed.2d at 58.4 It was in the context of this 
specific theory as to how North Carolina's legislative 
apportionment diluted the voting strength of black citizens that 
the Supreme Court enunciated the geographic compactness test.

Notably, the Supreme Court did not require that plaintiffs 
show that minority group members constitute a majority in each 
single-member district in which they lived. The actual remedial 
plan imposed by the district court, and approved by the Supreme 
Court, convincingly refutes that notion. For example, 
multimember House District No. 21, which was 21.8% black, was 
divided into 6 single-member districts. One district had a black 
majority of 63.4%, but the black percentage in the other 5 
districts ranged from 6.5 to 21.3%. Ginales v. Edmisten. 590 F.

4Appellants did not challenge the district court's finding 
of liability with respect to the claim that the apportionment 
scheme had impermissibly split a large concentration of black 
voters between two districts. Thus, the sole issue before the 
Supreme Court was plaintiffs' "submergence" claim with regard to 
the multimember districts. See Ginales. 92 L.Ed.2d at 41.

6



Supp. at 377-38. Thus, less than half the blacks in multimember 
House District No. 21 were ultimately placed in a majority-black 
district. And multimember House District No. 36, which was 26.5% 
black was divided into 8 single-member districts. Two of these 
districts were predominantly black— one 63.1% black, the other, 
66.3%. But the other six districts had black percentages ranging 
from 2.1 to 28.2%. Ginales v. Edmisten. 590 F. Supp. at 378. 
Roughly 40% of the black citizens in multimember House District 
No. 36 thus remained in majority-white districts even after 
reapportionment.

In light of Ginales. the district court erred as a matter of 
law in concluding that the fact that a slight majority of the 
Hispanic community would remain in majority-white districts 
precluded finding a violation of section 2. See slip op. at 19. 
The plain fact is that, under the present system, Hispanics have 
never been able to elect the candidate of their choice, and the 
persistence of bloc voting by the white community renders greater 
electoral success in the near future unlikely. By contrast, 
plaintiffs' proposed districting scheme offered the Hispanic 
community a realistic chance to elect two members of the city 
council. Claims of racial vote dilution are necessarily group- 
based claims. See United Jewish Organization v. Carev. 430 U.S. 
144 (1977) (plurality opinion). Thus, as long as the group 
strength of Watsonville's Hispanic voters is fairly represented, 
the fact that some Hispanics will still be submerged in majority- 
Anglo districts, does not constitute impermissible racial vote

7



dilution under section 2. Absent rigid residential apartheid, 
there cannot be a perfect fit between the race of voters and the 
districts in which they live. And so "the compactness 
requirement in redistricting . . . makes inevitable the exclusion 
of some parts of racial groups that may be dispersed." Ketchum 
v. City Council of City of Chicago. 630 F. Supp. 551, 557 (N.D. 
111. 1985).5

B. The District Court Failed to Consider the
Discriminatory Impact of Watsonville's Entire Electoral Structure

The other problem with the district court's overly literal 
approach to the requirement of geographic compactness is that the 
it failed to consider the combined effect of a complex of 
electoral mechanisms on the ability of Hispanic voters in 
Watsonville to elect the candidates of their choice. Ginales 
counseled an intense factual appraisal of the design and 
operation of the particular multimember form used by the 
challenged jurisdiction. 92 L.Ed.2d at 65.

Courts have long recognized that various features of an

5This principle— that finding a violation of section 2 does 
not require finding that, under single-member districting, every 
minority voter would live in a predominantly minority district—  
has been recognized in several post-Gingles cases. In McNeil v. 
City of Springfield, No. 86-2365 (C.D. 111., Jan 12, 1987), the 
district court found a violation of section 2 in a city in which 
over one-fourth of the black population lived outside the areas 
of heaviest minority concentration. Slip op. at 17. And in 
Campos v. City of Baytown, Civ. Act. No. H-85-1021 (S.D. Tex.
Jan. 5, 1987), the court found sufficient geographic compactness 
where only 65% of black residents and 58% of Hispanic residents lived in contiguous census tracts.

8



election system may combine with one another to deprive 
minorities of an equal opportunity for meaningful participation: 
submergence is not the only way in which at-large electoral 
systems dilute the voting strength of minorities. Often, at- 
large systems also possess features such as majority vote 
requirements,6 prohibitions on single-shot voting,7 or designated 
seat requirements,8 and staggered terms of office,9 that 
exacerbate the dilution of minority voting power. See also 
Senate Report at 30; H.R. Rep. No. 97-227, p. 18 (1982) 
(discussing various barriers).

In addition to possessing the normal dilutive potential of 
all at-large systems, Watsonville's system has one particular 
feature that has enhanced its potential to dilute Hispanic voting 
strength: no subdistrict residency requirements, see Tr. at 32-
35.

Courts have repeatedly recognized the discriminatory impact

6See, e.g.. White v. Regester, 412 U.S. 755, 766 (1973); 
United States v. Marengo County Comm'n, 731 F.2d 1546, 1570 (llth 
Cir. 1984); Velasquez v. City of Abilene, 725 F.2d 1017, 1021 (5th Cir. 1984).

7See, e.g.. Nevett v. Sides, 571 F.2d 209, 217, n. 10, (5th Cir. 1978), cert, denied. 446 U.S. 951 (1980), Zimmer v. 
McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973) (en banc), aff'd 
on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976) (per curiam);

8See, e.g., McNeil v. City of Springfield, No. 86-2365 (C.D. 111., Jan 12, 1987), slip op. at 27.
9See, e.g., City of Rome v. United States, 446 U.S. 156, 185 

n. 21 (1980); Perkins v. City of West Helena, 675 F.2d 201, 212 (8th Cir.), aff'd. 459 U.S. 801 (1982)

9



of the absence of residential subdistricting. See, e.q.. Rogers 
v. Lodge, 458 U.S. 613, 627 (1982); White v. Regester. 412 U.S. 
755, 766, n.10 (1973). Absent residency subdistricts, 
legislators need not come from all the areas within the district, 
but rather may be selected from predominantly white areas.

This is the case in Watsonville. The evidence presented at 
trial in this case showed that virtually all the members of the 
city council live in census tract 1102, which contains roughly a 
fifth of Watsonville's population. None of the members lived in 
the areas where the Hispanic community is concentrated. Tr. at 
32-35.

Thus, the current electoral scheme in Watsonville clearly 
reduces the ability of the Hispanic community to elect the 
candidates of their choice. Indeed, the district court 
recognized as much when it acknowledged the improbability under 
the current scheme of Hispanic candidates achieving election.
Slip op. at 15.

C. The District Court Had the Duty To Develop a 
Remedy That Cured the Dilution of Hispanic 
Voting Strength in Watsonville

The fact that a single-member district plan might not by 
itself enable every minority voter to elect the candidates or his 
or her choice cannot justify sanctioning a system that denies 
every minority voter that chance, as Gingles itself made clear.
It is indeed ironic that in this case the district court held 
that because no plan can avoid submerging some Hispanics in

10



majority-Anglo districts, the city can continue to use an 
electoral scheme that submerges all Hispanic voters.

Single-member districts may be the preferred remedy in 
court-ordered legislative reapportionments. Conner v. Finch. 431 
U.S. 407, 415 (1977); Chapman v. Meier. 420 U.S. 1, 19 (1975).
But the Senate Report makes clear that "the court should exercise 
its traditional equitable powers to fashion the relief so that it 
completely remedies the prior dilution of minority voting 
strength and fully provides equal opportunity for minority 
citizens to participate and to elect candidates of their choice." 
Senate Report at 31. Thus, if a change to single-member 
districts alone would not provide that relief, the city or the 
district court is obligated to construct a plan that would. The 
preference for single member districts must yield "where a 
district court determines that multi-member districts afford 
minorities a greater opportunity for participation in the 
political processes than do single-member districts," Zimmer. 485 
F.2d at 1308, or where other remedies more effectively restore 
minorities to the position they would have occupied in the 
absence of discrimination. See Note, Alternative Voting Systems 
as Remedies for Unlawful At-Larae Systems. 92 Yale L.J. 144, 158 
(1982) .

Other district courts have recognized this essential 
remedial principle. For example, several courts have found 
violations of section 2 when the number of seats in an at-large 
system is too small for minorities to have a reasonable chance of

11



electing any representatives.10 In Bolden v. City of Mobile. 542 
F. Supp. 1050 (S.D. Ala. 1982), the court ordered the expansion 
of the city commission from three to seven members to afford 
blacks a more realistic chance of electing a commissioner. In 
Dillard v, Crenshaw County. 640 F. Supp. 1347, 649 F. Supp. 289 
(M.D. Ala. 1986), the court ordered two Alabama counties to 
increase the size of the county commissions to five members to 
give black citizens, who constituted 16 and 17% of their 
populations, a chance to elect representatives. It also ordered 
that the chairmanship of the Calhoun County Commission be rotated 
among the commissioners to assure that the commissioner elected 
by the black citizens would have effective political power. And 
in McNeil v. City of Springfield. No. 86-2365 (C.D. 111., Jan.
12, 1987), the court found a violation of section 2 despite the 
fact that blacks constituted only 10.8% of the population and 
were so dispersed geographically that it was mathematically 
impossible for them to constitute a majority in even one of the 
five districts into which the city council might be divided; the 
court found that if the city were divided into ten wards, a 
permissible alternative under Illinois law, at least one ward 
could have a majority black population.

10These cases, of course, also stand for the principle that 
geographic compactness, as defined by the district court in this 
case, is not an essential element of a section 2 case, since the 
minority groups were not sufficiently numerous to create 
predominantly minority districts under the existing schemes.

12



II• The District Court Misconstrued the "Political Cohesiveness11 Requirement

The district court also found that plaintiffs had failed to 
show the "political cohesiveness" required by Ginales. 92 L.Ed.2d 
at 47. The district court's conclusion that the Hispanic 
community in Watsonville was not politically cohesive rests on a 
misconstruction of Ginqles' holding.

A. The Presence of "Political Cohesiveness" Must- 
Be Discerned By Looking at the Actual Voting 
Behavior of Minority Voters

Congress clearly intended, in amending section 2, that 
courts focus on "objective factors," not subjective attitudes, in 
deciding whether a practice results in minority vote dilution. 
Senate Report at 27; see also id, at 29, n. 116 (proof of 
responsiveness to the needs of the minority community "would not 
negate plaintiff's showing by other, more objective factors 
enumerated here[11] that minority voters nevertheless were shut 
out of equal access to the political process"). The Supreme 
Court also recognized this distinction. See Gingles, 92 L.Ed.2d 
at 54 (rejecting claim that finding of racially polarized voting 
depends on proof that voting patterns "are in some way caused bv 
race, rather than . . . merely correlated with the race of thp. 
voter") (emphasis in original):

It is the difference between the choices made by blacks

i:LThe factors listed by the Senate are set out supra. note

13



and whites— not the reasons for that difference— that 
results in blacks having less opportunity than whites 
to elect their preferred representatives.

Id. at 55 (emphasis in original). Ginqles recognized that the
Voting Rights Act is concerned with the practical effect of
challenged practices, not with metaphysical explanations for why
these practices disadvantage minorities. See id. at 42-43; see
also Senate Report at 36 (the intent test "asks the wrong
question" because the issue is whether an electoral system
"operates today to exclude blacks or Hispanics from a fair chance
to participate" not "what may or may not be provable about events
which took place decades ago").

Ginales' discussion of political cohesiveness is part and
parcel of the result-oriented approach of section 2. Both
Ginqles and the Senate Report makes clear that "racial bloc
voting is a key element of a vote dilution claim." 92 L.Ed.2d at
50; see Senate Report at 33. Legally significant racial bloc
voting requires the presence of two factors. First, minority
voters must support the same candidates, that is, they must vote
as a bloc. Second, white voters must support different
candidates, with a degree of unity sufficient "usually to defeat
the minority's preferred candidates." Ginqles. 92 L.Ed.2d at
50.12 "Political cohesiveness" refers to the degree of 12

12The court below erred in stating that "[o]n the issue of 
polarization, as indicated in Thornburg. the court is principally 
concerned with the behavior of the Anglo community . . . ." Slip 
op. 15. Bloc voting by both white and minority voters is 
essential to a finding of legally significant racial 
polarization, since "polarization" implies cohesive, and 
different, behavior by both groups.

14



solidarity among minority voters:
A showing that a significant number of minority group 
members usually vote for the same candidates is one way 
of proving the political cohesiveness necessary to a 
vote dilution claim, and, consequently, establishing 
minority bloc voting within the context of § 2 .

Id. (citation omitted). Political cohesiveness, then, does not
depend upon a theoretical assessment of whether minority citizens
share a common philosophic perspective on public issues. Rather,
it turns on whether the reviewing court can discern a pattern of
political behavior common to minority voters. See id. at 52
(district court's findings "clearly establish the political
cohesiveness of black voters" when "black voters' support for
black candidates was overwhelming in almost every election").

B. The District Court's Approach to the Question 
of Political Cohesiveness Focused on the Wrong Issues

In this case, the district court found the presence of both
of the elements of racially polarized voting expressly discussed
in Gingles. First, it recognized the "essentially unanimous"
support of Hispanic voters for Hispanic candidates. Slip op. 15.
Second, it recognized that "the [voting] behavior of the Anglo
community . . . as a factual matter dictates the virtual
impossibility of the election of an Hispanic candidate under the
present at-large election procedures." Id. Nonetheless, it
declined to find a violation of section 2 :

[U]ndoubtedly a substantial factor in the failure to 
elect Hispanic candidates may very likely be due to an 
apparent disinclination of Hispanics of voting age and 
citizenship to register and/or turn out to vote.

15



Slip op. 18. In essence, the district court held that plaintiffs
could not show "that a significant number of minority group
members usually vote for the same candidates," Gingles. 92
L.Ed.2d at 50, because they had failed to show that a significant
number of Hispanics voted at all:

The true issue, as stated by Justice Brennan [in 
Gingles!, is whether a significant number of minority 

. group members have demonstrated a tendency or practice 
to vote for the same candidate. The evidence amply 
supports the affirmative of this issue with respect to 
those who have actually voted. Dr. Grofman has stated 
these numbers to be statistically significant.
However, the issue deals with political cohesiveness in 
the community as a whole. I find that no significant 
number of eligible Hispanics have voted in the 
elections under consideration, and therefore that 
political cohesiveness based upon racile [sic] 
polarization alone has not been demonstrated by a preponderance of the evidence.

Slip op. 19. At bottom, the district court concluded that the 
lack of Hispanic political success in Watsonville is Hispanics7 
own fault because its primary cause is the political apathy of 
the Hispanic community and gave dispositive weight to low turnout 
in the Hispanic community.

The apparent evidentiary basis for the district court's 
conclusion was the testimony of Dr. Peter Morrison, a demographer 
and urban analyst called by defendant. Dr. Morrison made two 
major points regarding the political cohesiveness of the Hispanic 
community in Watsonville. First, Dr. Morrison pointed to what 
he saw as significant socioeconomic variations within the 
Hispanic community. In Dr. Morrison's view, Hispanics in 
Watsonville were so diverse that "the antecedents for political 
cohesiveness are not there . . . ." Tr. at 457; see slip op. at

16



17-18. Second, Dr. Morrison suggested that the lack of Hispanic 
political power stemmed from the tremendous disparity in turnout 
between Hispanic and Anglo voters. Dr. Morrison stated that if 
the Hispanic community increased its level of voting to that 
demonstrated by the Anglo community, then Hispanics could achieve 
significant political power. Tr. at 460-64; see slip op. at 18- 
19. Neither of Dr. Morrison's observations can support the 
district court's conclusion regarding political cohesiveness.

1. The District Court Misunderstood the Relevance of 
Socioeconomic Characteristics

Dr. Morrison's comments about what he perceived to be the 
socioeconomic heterogeneity of the Hispanic community are, quite 
simply, irrelevant to the question whether Watsonville's 
Hispanics exhibit political cohesiveness as Gingles defined that 
concept. Dr. Morrison stated that he "would not expect, based on 
the heterogeneity that [he saw] here, to find all Hispanics in 
Watsonville voting alike." Tr. at 457. Whatever Dr. Morrison 
might expect, the uncontroverted evidence showed that Hispanics 
in Watsonville consistently do "vote alike," at "landslide" 
levels. See, e.cr. . Tr. at 66-67 (testimony of Dr. Bernard 
G r o f m a n ) s l i p  op. at 14-15. Whatever the socioeconomic 
status of the Hispanic citizens of Watsonville who voted may be, 
it is patently clear that their voting behavior is correlated 13

13Dr. Grofman, who testified as an expert for plaintiffs in 
this case, also testified as an expert in Gingles v. Edmisten,
590 F. Supp. 345 (E.D.N.C. 1984) (three-judge court), aff'd sub 
nom, Thornburg v. Gingles, 92 L.Ed.2d 25 (1986). The Supreme 
Court explicitly relied on and adopted Dr. Grofman's methodology.

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within their ethnicity, cf. Gingles. 92 L.Ed.2d at 54.
Thus, the district court erred in finding that socioeconomic 

variations among Hispanics make it "unlikely" that the Hispanic 
community would have a "shared point of view," slip op. at 17.
Dr. Morrison's hypothesis that Hispanics would not have a shared 
point of view was convincingly disproved by actual election 
returns which showed that Hispanics, regardless of socioeconomic 
differences, united behind Hispanic candidates at landslide 
levels.

As a matter of political science, shared socioeconomic 
traits may explain why a group of voters prefers the same 
candidate. But Gingles makes clear that "under the 'results 
test' of § 2, only the correlation between race of voter and 
selection of certain candidates, not the causes of the 
correlation, matters." 92 L.Ed.2d at 55 (plurality opinion); see 
also id. at 78-79 (O'Connor, J., concurring in the judgment) 
(question is whether voting behavior of white and minority 
communities diverges, not whether divergence "may be explained in 
part by . . .  an underlying divergence in the interests of 
minority and white voters"). In essence, Gingles held that even 
when a racially identifiable group can accurately be described in 
socioeconomic terms, its collective voting pattern constitutes 
racial bloc voting. Certainly, then, when a common voting 
pattern exists among members of a racially identifiable group 
despite socioeconomic variations, the conclusion that this 
pattern constitutes racial bloc voting must be even stronger. If

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the district court was correct in crediting Dr. Morrison's claims 
of wide socioeconomic variations within the Hispanic community, 
then there is no factor other than ethnicity to explain the 
different voting patterns among Hispanic and Anglo voters. The 
proof in this case thus clearly satisfied Ginales' definition of 
political cohesiveness.

2. The District Court Misunderstood the Relevance of Low Hispanic Turnout
The second aspect of Dr. Morrison's testimony upon which the 

district court relied— that low turnout among Hispanics is the 
real cause of their lack of electoral success— is similarly 
irrelevant to section 2. Initially, it is important to realize 
that, with respect to this issue, Dr. Morrison was not offering 
an expert opinion, but merely an observation of the simple fact 
that few Hispanics voted. See Tr. at 460.

In light of Dr. Morrison's concession that he was "frankly 
at a loss to say why the rates are so disparate," Tr. at 464, 
absolutely no evidentiary basis exists for the district court's 
conclusion that apathy among Hispanic voters is responsible for a 
disparity in turnout which clearly results in Hispanic voters 
being unable to elect the candidates of their choice. The case 
law is clear: apathy among minority voters "is not a matter for 
judicial notice." Kirksev v. Board of Supervisors. 534 F.2d 139, 
145 (5th Cir.) (en banc), cert, denied. 434 U.S. 968 (1977); see 
United States v. Dallas County Commission.' 739 F.2d 1529, 1535-36 
(11th Cir. 1984) (apathy not a matter for judicial notice when

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clear evidence of racially polarized voting exists). When faced 
with a claim that racially polarized voting precludes minority 
voters from participating equally in the political process, it is 
simply not enough for a district court to conclude that it is 
"'equally likely'" that the cause of the observed disparity in 
political success is low turnout caused by the failure of 
minority candidates "'to ignite the patriotic fervor of their 
brothers.'" Cross v. Baxter. 604 F.2d 875, 881-82 (5th Cir.
1979) (quoting district court opinion). As the Eleventh Circuit 
has explained "[bjoth Congress and the courts have rejected 
efforts to blame reduced black participation on 'apathy,'" in 
light of the well-established correlation between low 
socioeconomic status and depressed political participation.
United States v. Marengo Countv Commission. 731 F.2d 1546, 1568- 
69 (11th Cir. 1984); see Senate Report at 29, n. 114.

Even if the socioeconomic status of Hispanics in Watsonville 
is not monolithic, the evidence before the district court clearly 
showed that a large part of the Hispanic community is 
disproportionately poor and poorly educated. See, e.g.. slip op. 
at 9. Moreover, a significant proportion of the Hispanic 
community in Watsonville moved there recently, see id. at 4, and 
to the extent that these new arrivals came to Watsonville because 
of its greater economic and political opportunities for 
Hispanics, they may continue to bear the effects of political or 
economic discrimination they previously faced. Cf. Gaston Countv 
v. United States. 395 U.S. 285, 293, n. 9 (1969). The link

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between socioeconomic status and political participation is
clear. See, e.g.. S. Verba & N. Nie, Participation in America 
125 (1972); R. Wolfinger & S. Rosenstone, Who Votes 13 (1980); 
U.S. Bureau of the Census, Current Population Reports, Series P- 
20, No. 405, Voting and Registration in the Election of November 
1984, Table 8 and Appendix A (correlation between participation 
and years of school completed); id.. table 13 (correlation 
between participation and yearly family income); id.. table 12 
(correlation between participation and occupational status). in 
light of the likelihood that the low level of Hispanic political 
participation in Watsonville is connected to a complex set of 
factors, including socioeconomic status, political experience, 
the complete lack of success by Hispanic candidates, and the 
like, see Kirksev. 534 F.2d at 145, n. 13, the district court 
erred in hypothesizing without any evidence that Hispanics don't 
vote because they don't care.14

Moreover, it is important to realize that the simple fact 
that Hispanics may constitute a large proportion of Watsonville's 
voting age population (and that, given the rate of Anglo turnout, 
there is room for Hispanics to turn out at a higher rate and 
thereby elect the candidates of their choice) does not preclude a 
section 2 challenge. For example, in Martin v. Allain. civ. Act.

14The brief lay testimony by defendants' witnesses that they 
did not support the candidacy of certain Hispanic candidates 
cannot support the district court's conclusions regarding voter 
apathy. Even if the Hispanic community did not support a 
particular Hispanic candidate, the evidence in this case showed 
low Hispanic turnout in every election. Cf. Marengo County Commission. 731 F.2d at 1569, n. 39.

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No. J84-0708(B) (S.D. Miss., Apr. 1, 1987), the district court
found that several multimember judicial districts violated 
section 2 even when the voting-age population of those districts 
was over 50% black. See slip op. at 10, 12, 26, 27-28. When low 
turnout among minorities interacts with a challenged electoral 
structure to result in minority voters having less ability than 
white voters to elect the candidates of their choice, then the 
challenged practice violates section 2 .

In short, the district court in this case "ask[ed] the wrong 
guestion," Senate Report at 36, when it sought to explain away 
what the evidence clearly showed: that Hispanic voters in 
Watsonville display a group preference for particular candidates 
and that racially polarized voting makes it impossible for them 
to elect these candidates.

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CONCLUSION

The judgment of the district court should be reversed and 
the case remanded for consideration of an appropriate remedy.

Respectfully submitted,""?

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON PAMELA S. KARLAN
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, 16th Floor New York, New York 10013 
(212) 219-1900

Counsel for Amicus Curiae

Dated: July 24, 1987

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CERTIFICATE OF SERVICE

I hereby certify that on 1987, I served a copy of
the Brief Amicus Curiae of the NAACP Legal Defense and 
Educational Fund, Inc., on counsel for the parties by depositing 
the same in the United States mail, postage prepaid, and 
addressed to the following:

1987, I served a copy of

Joaquin G. Avila, Esq.
One Warm Springs Professional Center 200 Brown Road, Suite 114 
Fremont, California 94359
Vincent R. Fontana, Esq.
Wilson, Elser, Moskowitz, Edelman, and Dicker 420 Lexington Avenue 
New York, New York, 10170

Counsel for Amicus Curiae 
NAACP Legal Defense and 
Educational Fund, Inc.

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