Overton v. City of Austin Memorandum Opinion

    ,&;u:Ai: -it. ", ZLD 
/. tU...,r'"r tr'-.\r^t FILED

xiurr Y Lur ra.i * ;Jo, J. ;ro5' r-'J' r^'r ' r rJo-! 
lhn 12 9 os ffi t85

Iil THE.UilITED STATES DISTRICT C0URT sH^rrEsh vAi\rn.cLEir

FoR THE ITESTERil DISTRIcT oF TExAS !Y

AUSTIT{ DIVISION
sEIUTY

v0Lt'lA 0vERT0N, ET AL

vs.

CITY OF AUSTIN, ET AL

I,IE I,IORANDUI.l OP I N IO N

This- is a case in thict piaintif f s il lege vote di_lution,- anit

assErt- their rights under the Thirteeath, Fourteenth and

F i f teenth Ame ndments and 42 u. s. c. SS '19 7l , l9 73 and I 9g3.

Pla'i ntif f s a11ege that the purpose and ef f ect of the at-large
election system f or the city counci I 'i n Austin, Texas, .i s to
d'i lute the voting rights of the m'i norities of Aust.i n.

The questions that this Court must resolve strike at the

most important of our democratic va'l ues. The f irst is whether as

a result of the at-'l arge electoral system used to elect the

members of the Austin City Council, BIack and l,lexican-American

c'itizens have less opportunity than do rhite citizens to
participate in the po1 itical process and to elect members of

their qhoice to this City council. A corollary question .is

whether the at-l arge electoral system ut i I ized by the City of

s
$
5
s
$

c Iv IL N0. A-84-CA-189



Austin unlarfulry dirutes the voting strength of brack and
l{exican-American voters. Thus, the regar questions this court
must resorve are rhether the at-rarge erectorar system for city
council menbers viorates either the yoting Rights Act of I965,
42 U.S.C. 5 1973, dS amended in 1982 or the Thirteenth,
Fourteenth or Fifteenth Amendments of the united states
Constitution. 0bviously, other subordinate issues remain to be

resolved in the quest to make this determination.
It is incumbent on the Plaintif f s to estab'l ish that the

current system of erecting city counci r members vior ates the
united States Constitution. This task is onerous in settings of
much starker discrirnination. The burden has proven too difficult
for P'l aintiffs in this cause of action.

The Court rishes to pause for a moment to enunciate,rhat it
believes to be its role in this larsuit. This court will
ensure fidelity by the city of Austin to the one_manj one vote
pri nciple annunciated in Re.vnolds v. Sims,377 u.s. 5g3, g4 s.
ct. 1352 (.l964). The court has also carefully analyzed the
evidence to determine rhether the city of Austin has violated the
Voting Rights Act of I965, dS amended, or the.Constitutjon. It
is expressly not the role of th.i s court to determine rhat it
believes to be the best electoral system for the City of Austin.
That debate is better left for academicians, pol iticians, .od for
the body pol itic. This court must ansrer onry the questions of
constitutional ity and legal'ity of the current system.

Austin has a counci r-manager form of goyernment. The
present plan has six councir persons and one mayor, erected at



at

large. Each candidate must choose one of the six places (or
nayor) and rin the seat by a naJority of yotes.

The City of Austin is a municipa'l pol itica'l subdivision of
the State of rexas. It seryes as the capitol of the state, and

rhjle perhaps not as we'l I knorn as its sister cities, Houston and

Da1'l as, is a thiliving city located in central Texas. Accord.ing

to the '1980 decennia'l census, it has a population of more than

345,000. The ethnic composition Has approximate'ly 239,000

Ang'los, 42,000 Bl acks, and 65,000 ilexican-Americans. In
percentages, the round figures are l0 percent Anglo, L? percent

Black, and 13 percent ilexican-American. Austin, I ike most if not

a'l I Texas cities, Iacks a sterling record of minority invo'tvement

in the polit'ical affairs of the city. If one xere to take a

snapshot vier of historJ, and_that snapshot Has taken before the-_

1970's, I itt'le argument xould exist that mlnorit'iei suff ered f rom

discrimination. Yet, Austin in r985, ood the Austin of the past

fifteen years, has made progressive strides in m.i nority
representation and partic'i patjon. Indeed, th.i s Court takes

iudic'i al not'i ce of the order entered by the Honorable Jack

Roberts in a s'imil ar suit from 1917. Hernandez v. Friedman,

A-75-cA-229 and 0verton v . Ir ! edman, A-76- cA- ?zo. T he court
views L977 as a benchmark year for Austin. This Court f.irmly
believes that if the City of Austin is examined in terms of the
progress of the past fifteen years, rith spec'i a1 emphasis since
1977, the conclusion at whjch it must arrive is that the at-large
system violates none of Plaintiff's constitutional or statutory
rights.

a



The Court has attempted to avoid any nechanlcal analysls
that precludes common sense and the lntense Iocal appraisal
demanded by rhite v. Reqester, 412 u.s. 755, 769,93 s. ct. 2332,
2341 ( 1973). Rather the Court has intensely reviered the facts
presented as evidence in this case to determine whether, in its
overal I j udgment, based on the total i ty of the circumstances and

guided by the relevant factors of this case, the yoting strength
of minority voters is minimized or cancel led out.

The Plaintiffs tried to establ ish that tro (or presumably

more) Bl acks would better represent the Bl ack community than

rould only one. This Court refuses to equate the effectiveness
of a council member rith the color of his skin. The voting
R'i thts Act specif ical ly prohibits th js Court f rom requ'iring the
establishment o_f proportional repre-sentation-. .Fo. example, the
Plaintiffs sought to establish that lerry Dav-is,.'a Blaek attorney
rho has run f or city counci'l , is atypical of the Black society.
The Court cannot see the relevancy to this case of this effort
other than the most base paternal.ist.ic attituoe towards

minorities. Pla'i ntiff's efforts underscored the entire thrust of
its case; to establ i sh that to guarantee ef f ect'ive representation
of the m'i nority community, this court must guarantee that
minorities be elected and, inferentialty, that minorities be

el ected rho are acceptable to Pl a'i ntif f s. The Court can f j nd no

support f or these c'l aims in the Constitution.
The primary relevant factors are polarization,

unresponsiveness, and a tenuous state pol icy; and the close
correlation of these factors rith the ultimate issue of denial of



.t

minority access to the e'lectoral process.

reight than enhancing factors, such as the
requirement, thich are raci al ly neutral.

In finding an absence of intentiona'l discrimination, this
Court has examined a multitude of factors. These include the
adverse effects of past discrimination by the State of Texas and

c'ity governments on the exercise by minorities of their rights to
vote and access to participation in the pol itical system. The

Court has al so anal yzed the soc i oeconomi c st atus of mi nor i t i es i n

Austin, the amount of polarization, slating, the possible
tenuous ness of the pol i cy beh i nd the at- I arge system, and other
features that determine rhether the system as a whole has a

di scrimi natory effect.
The underlying f acts of this case _are rel_l documented in the

Fifth ciqcuit opinion of oye.ton ,. city o ,'.od In Re,'

0verton, 718 f .Za 941 (5th Cir. ). This Court ril.l delete the
facts unnecessary to render its opinion below.

0n April 5, .l984, prajntiffs volma 0verton, Iola Tay'lor and

John Hall filed the'i r compraint rith this court on behalf of
themselves, and al I other brack voters s jmilarly situated .in

Austin, Texas. The named Defendants rere the city of Austin, and

its Mayor and City Council members, both in their individual and

offic'i al capacities. Plaintiffs based the case on the broadest
of c'l aims ( i. e. 'this is a proceeding to vindicate the rights of
Black citizens of Austin, Texas, to participate in the pol itical
pr0cess on an egual basis, to which they are presently denied jn
the at-lar9e manner of electing the city council of Austin,).

They are due nore

naJorl ty yote

5



tt

P I ai nt i ffs requested that the Court des i gnate them as a cl ass,

and that as a class, Black voters are less than l?/ of the

electorate. Plaintiffs alleged that the at-large system of

electing City Counci'l members in Austin 'is not equal ly open to

participation by B'l ack citizens, in that they have less

opportunity than other members of the electorate to participate
in the pol itical process and e'l ect representatives of their
choice.ol plaintiffs base their claim on the Thirteenth,
Fourteenth, and Fifteenth Amendments to the united States

constitution. The civ i I Rights Act of '1856, '1871 and 19G4,

42 U.S.C. SS l98l and 1983, ird the Voting Rights Act of t9G5,

42 U.S.C. S .l973, €t seq., dS amended. The complaint thus

al leges both unconstitutional intentional racial discrinination
and unlarful dilution of the voting strength of Blacks.

Plaintiffs sought to have this Court-(1)- declare this
matter to be a cl ass action, (Z) decl are that the present

at-1arge system is unconstitutional and/oli 11ega1 under the

Unjted States Const'itution and the Voting R'ights Act of .l965, 
ds

amended; (3) adopt and institute a new pl an that remedies this
viol at'i on of their rights; and (4) enjoin an.y f urther elections

10ften at the hearing, it appeared to the Court that by ,,of
their cho'i ce' Pl aintif f s t6ant "bf their race. o This Court-wi ilnot be so patroni z'i ng to any ethni c group as to suggest that on'l y
persons of their own skin color can legal 1y serve their'interests.



from taking p'l ace under

sought no preliminary I

the present at-l arge

nJunctive relief .?

the Bl ack Citizenrs

pl an. The comp I a i nt

0n April 12, 1984, Task Force ( BCTF )

moved thi s Court to i ntervene as Def endants. The BCTF c'l aimed to
represent interests of Bl acks in Austin, but with the be'l .i ef that
the current at-large system was not unconstitutional or unlawful.
Indeed, the BCTF c'l aimed that the dif f erent system bei ng proposed

(single-member districts) would dilute the votes of Blacks. The

Court f irst a'l lored the BCTF in as amicus curiae, pitther than as

intervenors (order dated July ZS, l984).

The Defendants filed their ansuer on April zg, .l994, denying

that the at-large system of electing the six council members and

one mayor denied or abridged any of p'l aintjff's rights under

eithe_r the United States Constitu-tion or_ the Yoting Rights Act.
Defendants -also denied any diserimio.io.y intent on the part of.,
the City.

0n ApriI 30,1984, Plaintjffs filed their First Amended

complaint. Ljttle was altered from the original complaint,
except that the cl ass action al legations tere omitted and the

Austin branch of the NAACP was added as a party plaintiff. 0ther
than the request for cl ass status, plaintjffs stil I sought

essenti a1ly the same re'l ief f rom this Court.

Pl aintiffs and Defendants each fi led an objection to the

I'totion of the BcTF to intervene. 0n l,lay 11, 1994, the BCTF was

2Pla jntif f s f i led a motion requesting such 'i njunctive rel.iefon January 25, .l985.



Joined by'0orothy Turner, rnd Yelna Roberts, black cltizens of
Austinr'rho flled an amended srotion to lntervene as defendants.
This brought a response only from plaintiffs, rho fi led thelr
opposition on tlay 2L, 1984.

0n June 29, 1984, Ernesto ca'lderon, John !,loore, and Ernesto
Perales moved to intervene as Plaintiffs, individual ly and on

beha'lf of the cl ass of llex i can-Ameri cans regi stered to vote i n

Austin, Texas. They, too, al leged vioration of their
constitutional rights under the Voting Rights Act. p'l aintiffs
d'id not object to this intervention, and on July 23, 19g4, this
court entered an 0rder granting the motion to i ntervene.

0n July 31, 1984, the parties, acting in concert, f iled a

consent to dismissal without prejudice of the suit aga.inst the
mayor and counci I member defendants in their individual
capacities. -l{o notice of this dism.issal ras made to members of
the putative class nor did this Court approye of the dismissal.

The parties, again acting in concert, then fi'led a oJoint

l'lotion for Interim 0rder" on August 3, .l9g4. The court took no

act'i on on th'i s l,!otion. It would advance the bal I l.i ttle to
recount the next few chapters in deta'il. In short, the Court did
not s'ign this proffered 0rder, precip.itating an appeal to the

F'if th circuit by al I parties then in the suit. The Fif th
circuit, after oral hearing, denied the rrit of mandamus and

returned the case to this District court. This court then

al I owed i ntervent i on by lrtark Spaeth and the BCTF i n 0ecember,
.l984. The C'ity Counci I decided that the citizens of Aust jn would

be given the opportunity to vote on the change of the electoral

I



system as is proyided ln the crty charter and supported by the
Constitution and Statutes of the State of Texas (Tex. Const. art.
xI, S 5; Tex. Rev. clv. stat. Ann. arts.1185r 1170, vernon 1963,
Vernon Supp. 1984; City of Austin Charter art. II, $ l).

Th'i s election ras held on January I9, r9g5 and by a

fifty-three percent (531) margin, voters of the city of Austin
Yoted to retain the at-'l arge system. Reference in this 0pinion
to that vote may appear as voting on .proposition Five.,, A vote
for Proposition Five tas a vote for a change to a single member

district plan. proposition Five faired. This court set this
matter for non-jury tria'r for February 4, 19g5. The tria.l took
approximately one full reek to complete. The Court rishes to
note that al though the part i es, NAAcp, l{ALDE F, and the c.ity of
Austin had reached a settlement agreement and jointly appealed to
theFifthci..u]t,1tthetria]thereisnodispute.n..,.
attorneys fgr the City of Austin acted in a futly adversaria.l
fashion to the plaint.iffs.

Thus, this court has had the opportunity to hear the
testimony of those concerned and knowledgeable about the current
system of voting in Austin. It has also reviewed the myriad of
exhi bi ts i ntroduced by ar r of the part i es. The court i s we r r

aware of the responsibi I ity that it bears in th'i s case, ird that
the determination of rhether there has been a dilution of voting
strength or access is a question of fact that this Court alone
must resoJve.

9



The rost li.iklng aspect of Ithe erpert,sJ stuOy lsthat no other varl able than race or ethnlclty ieretested. In other rords, Ithe expert] dld not test forother .xp!anatory factors than race or ethnicity asintultlvely obvious as canplign expendltures, pirtyldentlflcation, lncoqq, media use neasured bi tost,rel igion, name identif ication, or dtstance tirat a
candidate I ived from any particul ar district. There
are rel l-established statistical methods, such asstep-rise multiple regressions, to test for therelative importance of such mult.iple factors.Signirlcaltly, the inference of b'loc voting from this
model builds on an assumption that race or nationalorigin is thg on'ly expl anation of the correspondence.It 'ignores the real ity that race or national' origi n may
mask a host of other exp'l anatory variables.

Jones, 730 F.2d at 235.

This Court bel ieves that pol arization is not simply rhen a

majority of all three srinorities do not vote for the same

candidate. This rras one of the definitions of polarization
offered by Plaintiffs.T -Rather, racia-l polarization is a

gattlln ln rhich Anglo voters consistentlf and p"edominantly rote
for only Anglo candldates, and minority voters consistently vote
for minority candidates. That is simply not the case in Aust.i n.

Although Plaint'i ff s are unw'i ll'i ng to give any reight to the f act

that minorities are elected to eyery official body in the Austin

7tn'is definition_Iequires the court to seek a utopia. It isunI ikely that one could envision any set of these groups:
environmental, gqI, business, ethnic, dorntorn, la5or, etc. whoagree on al I candidates al I of the time. Certiinly because amajority of a minority grgup does not alrays vote ior the rinningcandidates does not trans'l ate into a discriminatory impact onthat group or di lution of their ro'le. Additiona'l ly, tirls Courtnotes that the failure of ob!aining a consensus of Anglos, Blacksand l'lexican-Americans most often risult from the fact-thai gtacks
and l'lexican-Americans often disagree on their choice ofcandidates. In other rords, Anglos vote rith one or the other of
!h. gjnority groups more frequently than do the tro groups votetogether.



connunlty, thls Court rlll. Thls Court flnds ts a latter of fact

rnd as a ratter of Iar that the polarlzatlon that exlsts ln

Austin ls de minlmus, and ls lnsufficient to add any reight to
Plaintiff 's argument that the current system is lllegal or

unconstitutional.

Racial Appeals in Pol itical Campaiqns

An obvious component of Plaintiff's case is the use of

racial appeals in the course of politica'l campaigns. The Court

finds that the Plaintiffs failed to establish that any campaigns

in at least the last decade have made use of oyert racial themes.

As for implied or subliminal racial appea'l s, this Court is unable

to find credible evtdence to support thi s argument. Certainly

evidence ras offered. Dr. H{mmb-tstein, rho holds a Ph.D. in

Sociblogy, testifled as to'the racist appeals .present fn the -1985

referendun. His testimony ras pure sophistry. The Court,

presumably much I ike the television audience who saw the

commerci a'1 , was unable to detect the 'rhetorical rink. " The

Court must agree rith Defendants, that the'anti-Proposition 5'

canpaign (at least that part of it introduced into the record)

Iacked any appea'l to racist sentinent. The Court could perceive

no intent to create a racist theme, overtly or covertly. To the

contrary, ruch of the campaign ras directed against rhat the

sponsors perceived to be the negative results of the proposition

for Austin's minorities. The Court rejects i n Lo!o the testimony

of Dr. Himaelstein.

27



In .l982, congress amended section z of the yot.i ng Rights
Act, 42 U.S.C. $ 1973, to read as follows:

( a) No voting qual ification or prerequisite tovoting or stan9q.d, -pFactice, or procedure dr,ai t ueimposed or appl ied by any Stite or poiitical
subdiv'i sion in a manner which results.i n a denial or
l9.idgment of the right of any citizen of the UniteOStates to vote on aciount of iace or color,;.-in--contravention of the guarantees set forth in section'1973b(f)(2) of this title, as provided in subsection(b) of-this section.

The Court properly has Jurisdlction
the United States Constitution and under

amended.

Application of Sectjon 2

Thi s i s a cl aim under both the

and Section 2 of the Voting Rights A

this Court need not find intent and

suff icient. The test that this Cour

(b) A violation of (a) of this section isestab'l ished if , based on the total ity of _the
circ-umstances,. it is shorn_that the ioiitilir processeste3{j[s to nomination or election in'Ihe state-oi -
pol itfcal subdivision are not equat ly op.n ;;-par!icipation by members of a class 6r trtizensprolected by subsection (a) of this sectjon.i n that itsmembers have less opportunity than other members of theelectorate to participate in the poiit.i cal pro..ri anoto e]gc! ".presentat'ives of the'ir choice. The extentto which members of a protected cl ass have been electedto office in the State or political subdivisjon is one

over these cl aims under

42 u.s.c. s 1973, !S

United States Constitution
ct. P'l aintiffs stress that

impact, that ejther is
t is following is outl.i ned in

circumstance which may be considered: provided. Thatnothing in this section establ ishes a FT-gT-r-E'nave
members of a protected cr ass el ected .i n iumbers equarto their proportion in the population.

the Senate Report to the Act:



P I ai nt I ffs nust ei ther prove such i ntent, or,altellatlvely, nust shor that the char renged system orpractice, in the context of all the clrcumstanles inthe Jurisdiction ln guestion, r€surts in ninorities
bei ng denied egual access to-the por ltical p.ocesi.

Thus, the test to be appl i ed i s a test and in the context
of the tota'l ity of c jrcumstances.

The f undamenta'l purpose of the amendment to Sect i on Z tas to
remoYe intent as a necessary element of racial vote di'l ution
cl aims brought under the statute. Congress accompl ished this by

codifying in the amended statute the racial vote di'l ution
principles applied by the Supreme Court in t{hite v. Reqester, 4lz
U.S. 755, 93 S. Ct. 2332 ('1973). If the result, irrespective of
the intent, 

-when assessed in 'the totality of circumstances,,, is
to cancel out or minimize the voting strength of racial groups,

then the electoral systefi-is illegal. The l{hite v. Reqester

racia'l vote dilution principles, as assumed by tfre Congress, rere
made explicit in ner subsection (b) of Section 2 in the proyision
that such a 'resu1t," hence a vioration of secured voting rights,
could be establ'ished by proof based on the totality of

circumstances that the pol itical processes leading to nominat.ion

or election are not equally open to participation by nembers o1'

protected ninorities.
congress mandated that courts should consider the

interaction of the chal lenged electoral system xith the

historical, soc'i a1, and pol itica'l f actors general ly submitted as

probat'ive of dilution to determine rhether 'based on the total ity
of c'i rcumstances' the challenged electoral system does result in
racial vote dilution. Section 2(b) exp'l icitly perm'i ts this Court

resu'l ts



to conslder ln lts rnalysls.It]he extent to rhich nembers of a

protected class have been elected..
If Congress had lntended that nunicipal ities ln al I cases be

required to have an election system ln rhich proportional
representation is based on discernable minority bodies, perhaps
it could have. It rise'ty chose not to do so. It expl icitly
provided to the contrary.

As a guide in its analysis of this case, the court has

turned to the Senate Report on Section z. The senate Report
g i v es part i cu I ar approv al to

aff'd per curi am sub nom. , E ast Carrol I Parish School Bd. v.
tu,f arshal I , 424 u.s. 536, 96 s. ct. tog3 ( lg76). The senate

Zimmer v. l{cKeithen, 495 F.Zd

has el aborated on thi s I i st of
reighed under a totality of the

the j ur i sprudence deve I oped i n
LZ}T (5th Cir. I973) (en banc),

Report

betypical faetgrs that _are to
c i rcums tances approach. -

Typ'ica'l factors include:
1. the extent of any history of offjci aldiscrimination in the staie or poiiticar subdivis.i onthat touched tl. r i ght of the members of the mi nor itygroup to reqister, to vote, oF otherwise to participatein the demoiratic pro..ri;
?- the extent to which voting in the elections ofthe state or por iticar subdivrsron"is raciairipolarized;
3- the extent to rhich the state or po1 iticalsubdivision has used unusua'r ry i..;;-;rectiondistricts, majority vote "eqri.ergiir, anti-irngte shot

Ployisions, or other voting practicei'o. proceduresthat nav enhance !he opporiuiriti f;;-aisciiminiiro,against the minority gi.bup;4. if there is i cahaiaate slating process,rhether the members of the mino.rIy-i;;rp have beendenied access to that process;
5. the extent to which members of the minority9!oup in the state or politicar subdi;rsion u.;; i;leffects of discrirnination in such are.t as education,



emplgyment rnq health, rhich hinder thelr abi I lty toparticipate effectlvely ln the pol itical process;
5. rhether poI ltical campaigns have been

characterized by overt or subtle raci al appeal s;7. the extent to rhlch nembers of the minority
group have been elected to public office ln the
Jurisdiction.

'Add i t i onal factors that i n some cases have hadprobative value as part of plaintiffs, evidence to
establ ish a violation are:

whether there is a significant Iack of
responsiveness on the part of elected
of f i ci al s to the particu'l arized needs of
the members of the minority group.

rhether the policy underlying the
state or pol itical subdivision,s use of
such voting qual ification, prerequisite to
voti ng, or standard, practice or procedure
i s tenuous.rl{hether these enumerated f actors wi I I
often be the most relevant ones in some
cases other f actors ri'l I be i nd i cat i ve ofthe alleged dilution..

1982 Senate Report at 28-29 (footnotes omitted
Code Cong. & Admin. lters 1982, pp. ?06-?07. L
Senate Report, re do not preclude the possibil
f actors -other t.han those enumerated i n Iimmer
rel ev ant i n an appropr i ate case.

Hi story of 0ffici al Di scrimi nation

The at-lar9e election system xas implemented in Austin in
elected at large on the1909. It ras a five nember council,

basis of a plurality. The mayoral position uas then filled by an

election from within the five sitting council members. To

prove that a Constitutional viol ation exists, Pl aintiffs must

establ i sh that the system was imp'lemented rith the purpose to

discriminate against minorities. Plaintiffs attempt to

). u.s.
ike the
i ty that
nay be

accompl jsh this by focusing on the adoption, 'in .l953, 0f a



naJorlty requlrement and also the requlrement of a cholce of
place. Some evldence ras lntroduced that the purpose of thls
change was the near vlctory of a Black candidate for city
council.4 rhile this question may be of some interest to

debate, the Court chooses to examine this. change in light of the

test enunciated in itqcartr_yr-_!g-:gn, 749 F.?d 1134 (5th cir.
lg84).

The pertinent Ianguage is'the plaintiffs must proye that
the at-l arge election pl an has a discrininatory impact upon their
voting strength and that the system ras implemented or maintained

rith the intent to discriminate." Id. at 1136. llhile the intent
of the implementation may be a matter of debate, this Court is
without doubt that it has not been maintained rith the intent of

discrimination, nor has it had that result
meet their burden of proof on- either prong

The Court rill go further.

Plaintiffs fail to

of_ i mp ac t or pur!os e .-

This Court is amply persuaded by Defendants that plaintiffs
fai led to establ ish, tS Has thejr burden, that the .l953 Charter

change was the resu'lt of discriminatory intent. Plaintiffs rest
their argument on the thinnest of reeds as they impute

discriminatory intent to f acts that are essential'ly benign. If
the case of Jones v. City of Lubbock, 727 F.Zd 364 (5th Cir.
1984 ) is to be the standard thi s court nust fol I or, then

4Tne City Council ras enlarged in 1967 by amendment to the
!ity charter to consist of six council members. In r969, the
Charter ras again amended to provide for the separate el6ction of
!-m?y9l:- Apparently, neither of these steps are chal lenged byPlaintiffs.



.'t

Plalntiffs rproof'of dlscriminatory lntent becomes even rore
gossrner. Plaintlffs rould ask thls court to lmpute

dlscrininatory intent or notive to the entire Austln electorate
based squarely on the fact that a Black candldate ras eighth of
fourteen candidates for Counci I office in I951. The Court finds
that it is pure folly that a major and radical change in the
entire electoral system ras a reaction to the candidacy of a

Black man rho ran for office. The Court has reviered the
exhibits that Plaintiffs submitted from that time period, but the
Court believes these do not reveal the entire landscape against
rhich the changes'rere made. The Court finds that plaintiff,s
facts pale against rhat actual ly occurred in .l953. 

As

estab'l ished by P'l aintiffs themselves, a fifteen member committee
had been created to propose changes in the City Charter. The

amendmentsIerethepro.ductof.ayearl-ongs!u.dyby.this

conmittee. The conmittee inciuded representatives of the
minority communities. The propositions that rere voted on that
day amount to a complete oyerhaul of the structure of the city
g0vernment. Indeed, there rere more than thirty separate
propositions to be considered. Issues involved the power of the
city llanag€r, eligibility requirements for candidates, and the
use of I imited purpose annexation. Having reviewed aI I of the
changes that rere suggested by the committee and adopted by the
city electorate, it is equally plausible for the court to find
that the changes rere benign, or indeed rere for the purpose of
enhancing minority participation in the electoral system. The

Court is not suggesting that Austin in 1953 xas a full year ahead

l5



of the supreme court's Brorn v. Board of Educatron,347 u.s.4g3,
74 S. Ct. 686 (I954) decislon ln lts move torard an integrated
pol itical system. Rather, the Court ls demonstratlng the paucity
of proof by Plaintiffs that the shift to place elections and a

majority vote system lere motivated by discriminatory intent.
As to the change in the Charter in 1953, plaintiff failed to

estab'l ish many key elements. There is I ittle or insuf f icient
credible evidence about any racial tension that may have existed
in 1953. It is only conjecture that it was rell known at the
time that the change to prace and majority requirements rourd
dilute minority voting porer. There is an absence of evidence
that supporters of the Charter amendments or the medi a emphas ized
the potentia'l dilution aspects of the change. The court notes
that the city did-n_ot also _adopt staggered terms or other
p0tgnti al ly vote di l uting f eatures. . rn. the lg53 charter, --

.

AmendmenL election, Proposition 5, rhich accompl ished the change
to place elections, also effected other changes including setting
the date for el ect ions on the first saturday in Apri 1, lowering
the res idence requirement for counci lmen from five years to three
years, and eliminating the requirement for a petition of 25

voters to accompany the filing of a candidate name. The court
specifically finds that the comments of Emma Long during the
campai gn rere i n reference to .mi nor i tyr i n the abstract
pol itical theory sense rather than in a racial sense.

Legislative bodies rourd become paralyzed if courts rere
able to intervene in their por itica'r process by ascribing some

sinister motivation to the complex facts concerning an act now



three decades past. Had plalntlffs been able to c!rry thelr
burden of proof, thls court rould not hesltate to act ln the
fashlon dlctated by the Constltution. But the Court ls under no

r€quirement that it must abandon common sense or loglc in this
case. And logic compels it to view rith strict caution this
cl aim that the change in the electoral system ras implemented
rith the intent to discriminate. The Court therefore finds that
the Plaintiffs failed to carry their burden, !rd finds no such
intent on the part of the Defendant, the city of Austin, in its
change to a maJority at-large system, or in the change to place
elections.

Slatinq

The court f.inds that slating, if it exists at all;,fs such a

de minimus factor -as to be given but little reight in tha
*t.rtar rt clrcumstances. The reality is that Austin,s
po'l itica'l process dif f ers signif icantly f rom those d.i scussed in
Z'immer v. tlcKeithen, 48s F.zd rzgr, 1305 (5th cir. r973), aff ,d

, 424 u.S. 536 il976),
llhitcomb y. Chavis, 403 U.S. lZ4 (I97'l ) and Graves y. Barnes ,343
F- supp. 704, 726 (r{.D. Tex. tg7?). pl aintif f s f ai Ied to
estab'l ish that any group(s) exists in Austin that controls the
election of candidates through slating. certainly, nunerous
groups that endorse exist and are active.

slating involves the creation of a package or slate of
candidates, preceding fir ing, by an organization rith sufficient
strength to make the election merely a stamp of approval on the



cand I dates rl ready preorda i ned.

of any s I at I ng group.

Certalnly thls rould be the goal

slatlng groups create a bar rot of candidates and tr.y to
elect that slate as a package through financial and other support
for those select campaigns. In the cases in rhich sr ating has

been a factor in a court,s opinion, slating groups Iiterally
contro'l access of mi nor i t i es to be pl aced on the bal I ot. Thus,
sl ating in these cases directly determined rho the final
candidate rould be. This, of course, has a substantial effect on

the abi l ity of minorities, actuaily on ar r yoters, to elect the
candidate of his choice. This Court concurs rith Defendants that
the original and main concern of the courts that have addressed
the issue of'slating have focused on the access of minorities to
the primary and in turn to a general electio_n. plaintiffs
produ.go no eriJ.nce that L[ere are eny- r:qadb]oclrs to any ,..ron
of any ethniiity being on the uatiot for an.y .orn.il-s.;;.rb' 

dv'

Further, it appears to the court that no group has the poriticar
p0Her or financial resources to control the election of a slate
of candidates.

It is unaYoidable that this Court focus for a moment on the
specific group that pl aintiffs, al lege conspire to create a

slate, the Austin progressive Coalition (ApC). p.l aintiffs have
subnitted no statistical evidence to this Court establ ishing the
percentage of Austin voters rho contribute time or labor to the
APC, rho are part of the APC, indeed rho are even arare that the



APC exrsts.5 They did not estabr ish that rerbers of nrnorrty
groups rere disallored rembershlp ln the Apc or that ninorlty
candidates Iere denied endorsements. To the contrary, of the six
council seats at least one Black and one llexican-American has
been endorsed by the Apc and erected by the voters in every
election since 1975. At least one Bl ack candidate ras endorsed
and elected in the l97l and 1973 elections. A second
[lexican-American, l'larcus DeLeon, tas endorsed but not elected in
I98'l .

l'linority candidates are endorsed by the Apc. The minority
community have agreed rith these choices. l{inority groups
participate in the APC endorsement process. This underscores the
fact that in Austin a plethora of endorsing groups exist, all of
which have their orn agenda they rish _to see effectuated. There
is nothing in th9 ev.idepce to estab-l ish t-hat the yal_ue or eff ect
of an ehdorsement by the Apc ir 

t.ny 
greater rhan that of the

NAAcP or the llexican-American Democrats, oF that the support of
any of these groups is pursued with any greater vigor than any
other endorsement. l{ithout exception, the evidence establ ished
that every candidate seeks the endorsements of every group he can.
There ras no evidence to establish either of the tro necessary
findings this court must make on this issue: first, that the
endorsement/s'r ating of any group is a poriticar necessity to a

5Therefore, whi I e
argument that the ApCplaces its impramatur

the Court wi I I accept for purposes of thi si s a powerf u I -endorsi ng groirp,' i [-i n-no rayon that as a fact.



ctndidate's success ln Austln and second, that nlnorltles are

denied access to these groups.

Thi s Court rishes to exhibit no brash naivete. Certalnly
groups exist that donate money, tine and energy to the e'tection
of candidates. The question before the court is rhether, in
Austin, a sl ating group of sufficient strength exists to preclude
meaningful access for minorities, oF di Iutes their voting
strength. candidates have run meaningful and successful
campaigns rithout the support of the groups submitted to this
Court as major slating groups. The Court bel ieves that the
process that occurs in Austin is one inherent in any political
process. Groups with specific aoa'ls are formed. These groups

analyze from among those rho are running xhich are (a) most

likely to succeed and (bl most l_ikely !q support that grouprs

lnterests._ !o a.rgtin cafipaig.l in r.ecent nemory has included the
issues of race or ethnicity. I-nstead, candidates have

establ ished agendas--priority issues--and the voters of Austin
are left to decide whom to eIect. Plaintiffs failed to establish
that any group in Austin has the power to control the u'ltimate
decision of vho is elected to the city counci l. No group

controls ultimate access to the ballot, either as a candidate or

as a Yoter.

The Court finds as

that under a total ity of

slating in Austin is de

implications.

a matter of fact and as a matter of I ar

ci rcumstances test the ex i stence of

minimus and has no constitutional



Polarlzatlon

The Ftfth Circult has noted that

'Ip]olarized voting as a precondition

claim." Jones, 727 F.Zd at 385 n.17.

eradicate race-conscious pol itics, not

indication of race-conscious pol itics
po'l arized voting.

A person does not have to be of a particular race to
adequately represent that race. The ul t imate goal of any

election system is for the election to be conducted rithout
regard or reflection to the race or ethnicity of the candidates.
This Court i-s unable to say such a goal has been fully achieved
in Austin, but the f ai lure to achieve this goal has no_t been

caused by the at-laige-system of voting. Ettrnicity and race are_ :-

not the main issue, o" eyen an obiious issue, in Austin city
pol it i cal races.

At the core of a racia'l dilution suit is
due to the interrel ationship and interaction

a trlal court nust find
of a votlng dilution
Section 2 is remedial, to

create them. The surest

i s a pattern of rac i al I y

issue of po'l arization
ally polarized vot'ing

ion case. Hcltlillan y.

the argument that

of invidious racia'l

This Court does not bel ieve that the
js 'i ndispensable, but recognizes that raci
rill ordinarily be the keystone of a dilut
Escambia County. F'I a., 748 F.Zd .l037, '1043 (5th Cir. 1984).

Plaintif f s f ailed to estab'l ish that rheneyer a minority
chal'lenged an Angto in city or other relevant races, a nrajority
of the Anglos rho voted rould consistently vote for the opponent

of the minority. Plaintiffs failed to prove that Austin voters
rere racially polarized.



pol trlzatlon cxhlblted ln votlng patterns tithin the chal lenged

electoral system, racl al mlnorlty groups rre effectively denled
p'olitlcal efficacy. Thus, vote dilution can occur
notli thstand i ng the absence of formal structural barr iers to the
e'lectoral f ranchise. .IT]he demonstrab'le unri I I ingness of
substant i al numbers of the raci al majori ty to vote for any

minority race candidate or an.y candidate identified rith minority
race interests is the I inchpin of vote dilution . . . ., Ginqles
v. Edmisten,590 F. Supp.345,355 (E.D.N.C. l9g4)
have fai led to establ ish this demonstrabte unri I I i

This court will adhere to the wise counsel of
Higginbotham rho wrote:

. Plaintiffs
ngness.

Judge

detailed f indingr_are-. required to support anycooctusions- pr. polarized voting.- iIe;i' iiiIln9, mustmake.tTlil lhat'they aia srppoiied'bi nore than theineyitable by-prgduct of a tbsing ca-naidaiy in .--lpredoninantly rhite voting populition. Failure to dos0 presents an unacceptable risk of reguiringproportional representation, contrary do coniressionalri I l.

Jones v- citv of Lubbock, 730 F.?d 233, ?34 (5th cir. I9g4).
This court is simply unable to make such concrete factual
findings to support any conclusions of polarized voting, due to
the reak evidence presented by Plaintiffs. Defendants strongly
contest, and the court thinks rightly So, both the methods and

conclusions of Plaintiff,s experts.
Dr. l,tiller displayed acute inability to give a coherent

definition to the phrase .acute polarization.' Indeed, his
testimony ras rife rith inconsistencies and mired in confusion.



Dr. I'liller's lnltial problem ls hls use of dlfferent neasures to
deternlne Bl ack and liexlcan-Anerican votlng strength. This ls
conpounded by his failure to take lnto account the difference ln
the population sizes of different precincts. This Court finds
that Dr. l{i I ler failed to establ ish any confidence intervals to
establ ish the value of his conclusion that one candidate ras
indeed the preferred candidate of a specific racial or ethnic
group. 0ften, under Dr. lliller,s statistlcal analysis,
candidates actual ly received negative percentages. lJhi Ie this
court understands the practical impossibility that statistics are
perfect, given the analytical deficiencies in this case, the
Court can give little reight to those elections determined by

small percen-tage differences for fear that they are in error.
Dr- !liller's analysls is replete rith a Ii-tany of other-errors.

.,r": Ilill.l dld-1ot .9igst..his data for variab.les such as

the educational or econonic composition of a precinct. He

dismissed this apparent reakness in his analysis by asserting
that there is no need to distinguish betreen .|lexican,,, .poor,,
and 'uneducated.' This Court strongly agrees rith Defendants,
assertions and views this broad statement as patronizing and

rithout factual basis in this case. Certainly plaintiffs have

established that the road to parity among all ethnic groups is
still to be fully travelled, a revelation that falls far short
of establ ishing that al I minorities are uneducated and poor. He

did not include in his analysis rhether the candidate was an

Ang'l o or a ninority, and of greater import, rhether the candidate
addressed mi nority concerns. Dr. t{i I ler chose to ignore that

.r)



non-ethnlc factors tre operatlng ln Austtn to effect the outcome

of el ectl ons.

The court turns to Dr. l,liller,s failure to establtsh a

confidence level for his regression analysis. Defendants

strong'l y dispute the accuracy of Dr. l,li'l ler,s methods here. l,luch

of this dispute centers around Dr. lliller,s use of an.r. factor
in his anaIJsis.6 An 'r, factor ls used by statisticians to
expl ain the proportion of variation in the votes a candidate
received that are accounted f or by the ethnic or raci a'l

. composition of a precinct. The higher the value, the higher the
degree of correlation of the results to the variable of
race/ethnicity in the precinct tested; this in turn potential ly
reflects polarization. Defendants cite Dr. I'liller,s analysis as

flared dqe to his failure to either -analyze thesq _yariables

'scpara_tely or to proceed to the squaring of his figures to
establ ish an accurate test of the confidence level of his
correl ation results. This Court be'l ieves that an analysis of the
races of the last ten to fifteen years reyeals that in many

contests the correJation coefficient is extremely Iow. Compare

this to the City of Lubbock case, in which the tota'l minority
population in the city was 26l (similar to Austin) and the values
of the correlation coefficients rere high. Jones v. city of
Lubbock, 727 F,?d at 368. The court agrees rith Defendants

i ts
( 5ttt

SFor an excel
problems, see
Cir. 1984).

lent analysis of the use of an oro value andJones v. C i ty of Lubbock, 730 F .Zd 233; 
- Zii-



that Dr. lll I ler's 'homogenelty' expl anation did I rttle
to cure hts fallures ln analysls. certalnly homogenerty of a

racial/ethnlc group ls a factor that this Court conslders

important in deterrnining rhether an at-large system of voting has

a discriminatory impact or result. A high presence of

homogeneity rould militate against an at-large system. The lack

of hoarogeneity in economic conditions, education, employment, and

political philosophy tithin a racial/ethnic group rould suggest

that race/ethnicity is a lesser determinate of the decision made

in voting. The key consideration in polarization in an at-large
system is rhether Anglos vote as a bloc for only Anglo

candidates, i. e., xhether AngI os vote as a block based on

ethnicity.
There are many other sertous flars rith Dr. l,liller's

_-_anaIy_sis; He fa_Jled to distinguish betreen serious and token

candidates. He failed to determine rhether the candidate

emphasized a broad platform or ras a'one-issueu candidate. He

did not allow for the strong factor of incumbency. He failed to

determi ne rhether a candidate concentrated on speci fic
geographical areas of the City and rhether that candidate was

successful i n those areas. He did not bother to identify rhether
there ras an i ssue( s) that captured the entire debate i n that
particul ar election, and if So, rhether candidates tere elected

entirely on their position on that issue. The Court cannot avoid

being compel led to di sregard much of Dr. Hi'l ler's analysis under

the strong 1 o9 i c presented by Judge Hi ggi nbotham:

?q



Thls Court does not dlspute that Dr. Hlnmelstein belieyes
that the characters ln the coraerclal represented
llexicto:ADericans. Had Dr. Hilmelsteln gone beyond asking a

handful of biased people their opinion, the matter rould be

entirely different. Had Dr. Himmelstein conducted accepted

scientific analysis in the form of surveys to establ ish rhat the
aYerage Austin citizen viering the commercial thought about it,
this Court lould be rill ing to consider such evidence. Certainly
there is nothing in the record to establish Dr. Himmelstein as an

expert as to hor the average Austin citizen rould interpret the
message of the commerci al . The Court fi nds that pl aintiffs
rhol ly fai Ied to estabt ish that a racial appeal occurred in the
January 1985 campaign. The court is unarare of any other

- elections of the past trenty years that did involve racial-
appeal s.

Responsiveness

Pla'intiffs made much ado of the argument that minority
candidates are unable to properly respond to the needs of the
oinority connunity. Yet in their post-trial brief, they suggest
that responsiYeness is a factor to rhich this Court should give
but I ittle reight. The court disagrees rith both of these
arguments. The Court bel i eves the respons iveness component to be

a key element in its total ity of circumstances test. In this
regard, the Court finds the Austin City Council to be especially
attentive to the needs of ninorities in this city. A strong
argument can be made that an at-large system focuses pressure on



each councll nember to be responslve to the rlnorlty connunlty.
That nlnorlty councll nembers have felt unable to fully represent
the ninorlty communlty ls a factor to be relghed. Ihether thls
ras a Justtfied fear is a purely speculative natter as no

incumbent testified that he had rost ln a race due to placing
minority issues high on his agenda. Ilor did any ritness
adequately exp'l ain the lssues that they rould have been more

responsive to had they been elected from a district. llor is
there any evidence of the failure of municipal legisl ation
favorable to minorities due to the current electoral system.
This factor is further offset by the siinple reality that this
City Council has been responsive to the needs of the minority
community.

Ituch of the Plaintiff 's case !s premised on the argument

that East Austin is poor, and has r-emained poor due to the - .

neglect of the city council. Evidence of proverty in areas of
Austin, including the area of Austin east of Interstate 35, is
rithout dispute. Evidence of neglect of these areas due to the
minority popu'l ations that might exist there as it night relate to
an at-I arge system of counci I el ecti ons is unpersuas iye. Thi s
Court is unable to establ ish through-the evidence presented a

nexus betreen the at-l.rge systen of voting and the poverty of
these areas. Rather, this court is of the opinion that any

failure of the city council to react to the problems of the
ninority poPUlation is not due to the nrethod by rhich the council
members are eI ected.



Thls Court nust deternlne rhether the responslveness of the
councll ls lndtcatlve of preJudrce or raclal blas ln the
electoral system itself. This court flnds that plalntlffs falled
to establish a lack of responslveness to nlnority needs due to
the at-l arge system.

Pl aintiffs presented several ritnesses rho testified that
they, in a general sense, felt that the current City Council, and

Councils of the past, had been unresponsive to minority needs.

In the face of the great reight of the evidence to the contrary,
this ras insufficient. There is I ittle evidence that in the past
fifteen years the City Counci I has di sregarded mi nori ty issues,
or has in any ray fashioned their decisions on the ethnic
composition of the city to the detriment of the minority
commun-i-ty. _There las no evidence that the majority has -exploited
theiE pol itical status to the-detrinent of the minority. :- . --

It is not the "ot. of this Court to examine the actions of
the City Council and determine rhether-more or less money should
be budgeted for specific proposals, or rho should be hired to
fill emp'loynent positions. That is a'legislative function.

The Eleventh Circuit, in United States v. l,laranqo Countv

Conm'n, 731 F.2d 154G (llth Cir. l9g4), found that
unrespons iveness las substanti al Iy less important under a resul ts
test than under an intent test. I{. at lslz. This court
disagrees that unresponsiveness is of only linited importance
under section 2. The circuit court rrites that'section 2

protects the access of minorities not simply to the fruits of
government but to participation in the process itseIf.. Id. at



L572' But evldence that clected offlclals rre responslve to the
needs of nlnorltles ls evldence that has a bearlng on the lssue
of:hether nlnorlties are excluded from polltical partlclpatlon.
It should not be so neatly dlvlded out as a separate genus of
evidence. Evidence that elected officials ignored minority
issues rould certainly reflect that minority participation of any
amount ras neaningless, and therefore impacted by the system. It
ls not a yery bord statement for this court to make that the
inverse is also true. strong evidence of responsiveness ri I I be
directly consldered by this Court as to rhether ninorities are ln
fact excl uded from the por iticar process. The court ri r r

'compare' evidence of responsiveness to evidence of excl usion.
Second,-the learned panel of the Eleventh Circuit rrites

th-at 'res-ponsiveness is-a- highry subjective natter, and this-
subjectivityisatoddsritht-heemphasisofSection.2]on----
obiective factors.' This Court disagrees. Responsiveness is no

more'subjective'than the other factors that this court must
consider. rhether there is polarization, for example, is a

subjective test based on objective factors. yet the
responsiveness lssue is on'ty t_IUiective in that this Court must
analyze aggregate objective data and nake a decision that the
city has or has not been responsiye. That is the role of the
trial court in these cases. Fault lies in the use of a

'subiectiYe'analysis only if this Court considers inadeguate
objective evidence to nake a proper decision, or makes an

improper decision based on the objective evidence admitted.



Thus thls court can flnd no basrs rn logrc to rgree that
'although a shollng of unresponslveness ntght have some probatlve
value a shorlng of responslveness rould have yery llttIe.. Id.
at L572. Thls Court believe that a shoring of either should be

given probative value under a test that ls as broad as a

'total ity of circumstances,' test. This Court finds no sol id
evidence of unresponsiveness on the part of the City Counci I
Rather, this court finds the Defendants have clearly been

responsive. The Court finds that the evidence of responsiveness
reighs predominately in favor of a finding of the
const i tut i onal i ty of the current system.

There is some dispute o_ver rhether. tenuo-usnqss 
- 
is -itserf_ a-_

primary factor for-the court to co_nsider. The,court

the implementation of the mliority vote and pl ace reguirements
exhibited a discriminatory intent. Tenuousness requires a

slightly different but related standard. The question becomes

rhether the original iustification for instituting the system

Tenuousness

to be tenuous. There is no state pol icy against at-large

Plaintiffs failed to establ ish that the lmplenentation of
the system ras tenuous.

appear s

systems.

lg73).

llor is this
the at-large and

Court conyinced that the reasons

pl ace requ i rements are tenuous.

in Austin each tine the issue of

for maintaining

Unl ike the City

single memberof Terrel I case,



dlstrlcts has been placed on the ballot, lt has falled. The nost
recent electlon ras on January l9r lg8s. The electlon rrose
prinarlly as a result of thls I ltlgatlon. The only lnpact of
these elections ln the Court's conslderation ls to demonstrate

that there have been no questionable manipul ations of the

election process as.may have occurred in city of rerrell.
In deternining the tenuousness issue, this court has

reviered the evldence concerning the distrlbution of the several
ethnic groups throughout the city. The at-r arge system arguably

benefits the minority community of Austin, rhich is substanti aI ly
dispersed throughout the City. Defendants presented credible
evidence that the at-large system enhances ninority access. It
is rell-estab'l ished that rhen an at-large system actually seryes

a strong goye_rnment p_o'l icy rholly divorced from m_aintena0ce of
racial discr:imination, it is not unconstiiution-al. ila'intiffs.
have failed to....y their burden that the at-large system is
tenuous. The court fi nds that Aust in's pol icy reasons for
mai ntai ni ng an at-l arge system are not tenuous.

The Kirksey Analysis

The Court has carefully reviered this case in light of the

case of Kirksey v. Board of Supervisors, 554 F.zd 139 (5th Cir.
1977) (en banc), cert. denied,434 u.s.9Gg, gg s. ct. s12 (lgll)
The Court i n K i rksey rr i tes fi rst that:

Io]nce Plaintiffs establ ished a past record of racialdiscrinination and official unresponsiveness rhichrequired the concl us i on that at I east unti I a short



nunber of-19frs_past they had been denled equrl rccessto tlre polltlcal processes of the county, tt-ihen-aaiito the Defendants to come forrard rith Lvtoence thatenough of the lncldent: qf !tg past had been iemovid,
and the effects of past denial br access dlsslpat€d,that there tas presently eguallty of access.-

554 F.?d at 144-45.

This Court exp'l icitly f inds that Def endants have carried
their burden to establish that there is currently equality of
access. The court also finds that ninorities have had equal

access to the e'lection system for the past tro decades. This is
reflected by the fact that minorities have voted for candidates,
run for office, and been elected to office ln aIl of the relevant
pol itical offices.

In Kir\sey, the court next rrote .Ii]t is not necessary in
any case that a minorlty proye such a causal link. Inequality of
access is an inference rhich flors fronr the-existghce of economic

and educational lnequari'ties.' Kirksey i, Bbaid of supbriisors,
554 F.2d 139 (5th Cir. l97tr.
this by rriting that:

The Eleventh Circuit tras expanded

llaranqo County, l3l F.2d at 1569.

l{o system is invulnerable to this standard. ilo system in
Texas is completely free from the taint of discrimination. It is
saf e to say disparity exists socioeconomica'l ly betreen Anglos and

minorities in most if not aIl cities. The Court believes that

rhen there is clear evidence of present socioeconomicgf political disadvantage resulting from pastdiscrinination, . . r, Itre burden is not bn theplaintiffs to.proye that this disadvantage is iausingreduced pol itical participation, but ratFer is on-thoserho dg4y the causal nexus to shor that the cause issomething else.



the latter fact rs rndeed r result, at reast to some degree, of
the former fact' llo Defendant can concelvably overcone such a
burden' The burden of proof can be transrated rnto a frndrng
that the current system, rhatever the current system rs,
unconstitutionaily dirutes or reduces po'r iticar participation.
Thus, the city is cast rn the position of having to pi.y, much in
the fashion of original sin.

This court berieves rt is proper to vrer the current
socioecononic status of ninorities in terms of rhether it is
increasing in relative terms to its orn past. Then the court
should analyze the interrel ation that can be empirical ly proven
between the electoral process and the socioeconomic levels of
minorities- Betreen'tg7o and I9g0, Dinorities have inproved
t!.ir gene_raI conditions at a. r:ate gIe-ater -than the total
population has lmp,:oved; From l97O to 1g€0,, .Blick family nedian
income increased nore exprosivery than the median of the city of
Austin. In r980,4g percent of the Brack population resided in
census tracts rhere household median incomes rere g0 percent or
greater of the city househord nredian. Trenty percent of the
Black popu'lation resided in census tracts rhose household nedi an
incomes uere greater than the city nedian.

0f unl inited inportance in this analysis are the statistics
involving the increasing nobir ity of Austin minorities.
Traditionar 'East Aust in' is decr ining in the percentage of the
total Black popuration in Austin rho reside there, and ar.r other
areas of Aust in are increas ing their percentage of the total
Black popuration. The dispersion pattern for Hispanics is even



rore dramatic. In 1980, G€nsus tracts that tere naJorlty Black
rccounted for less than half of the total glack populatlon ln
Austln. llaJorlty Hlspanlc census tracts account for only 30
percent of Austin's Hispanic popul ation; thus , l0 percent of
Hispanics I ive elserhere in Austln. Ilhen these minority
dispersion patterns are cons idered, the at-large system ls shown

to be particularly beneficia'l to the dlspersed members of the
ninority' rho it must be remembered nor account for more than
half of the minority Popu I ation. Therefore, the effectiveness of
a ninority population that is nor largely dispersed is maximized

in terms of representational access under the existing at-l arge
system.

The third criteria of Kirksey involves rhether any past lack
of access has been amel iorated -in the_present. The Court finds
abundant gyldence from Defen-dants -that this has occurred. The

Court must note that Pl aintiffs have not al leged that Bl ack

residents register to vote in a lorer proportion than do Anglos.
The Court finds no credible empirica'l evidence to support an

allegation that Black voter turnout is proportionately less than
Angl o voter turnout.

Dr. cervantes testified for plaintiffs that there is a

disparity betreen proportion of Hispanic popul atlon ( lg percent)
and percentage of Hispanic regi stered voters (9.5 percent) .

Dr. Cervantes testified that there are three factors that reduce
this apparent disparity. They are: (1) a greater percentage of
l'lexican-Americans be'low voting age than in other ethnic groups;
(2) differences in the ray llexican-American population records



tre kept by the Secretary of State of Texas (by Spanlsh surname)
and the Unlted States Census Departnent (by Spanlsh orlgln)
resulting tn census oYerstatenents of about l5 to ZO percent rhen
coirpared to spanlsh surname voter reglstratlon flgures; and (3)
the presence of a significant al ien population rhich also causes
the census f igures to be overstated compared to registered voters
rho nust be citizens. Due to these possibre reductions, it is
not Possible fron the evldence adduced at trial to determine rhat
the actual disparity is betreen the llexican-Amerlcan proportion
of popu I at i on and the proport i on of regi stered yoters.
Plaintiffs failed to carry their burden of proof on this issue.

The At-Larqe Requ i rement

Some.courtshive.triateda.nat;Iarge.".guirementas
virtual ly an unionstitutional requirement per se.

rritten that the najority vote requirement:
It has been

requires a run-off el ection between the tro candidatesrith the most votes if no candidaie reieires-; ;;i6.iiyin the first election. The run-off al lors rhita-;;tersrho scattered their votes among various rhitecandidates in the first electi6n to ionsol idate theirvotes in the second to defeat a ninority candiJati-r'i,oreceived a plural ity of the vote in the Host eleciion.

l{ote, RaciaI vote Di'rution in t{ultimember Districts. The

, 76 llich. L.
Rev- 694,697 (1978). The court has found no evidence of such a

pernicious use of the at-l arge system in Austin. certainly the
court accepts that an at-l arge system could have this resu.lt.

Constitutional Standard after lJashinqton v. Davis



Yet thls court expressry flnds that the plalntlffs have

conpletely falled to establ lsh that the at-lrrge systen ln Austin
has had th I s resu I t. An at- I rrge systern can exacerbate a

polarized poltty; but, rrthout proof that the naJority
requirement does enhance a system already fraught rith
discriminatory impact or intent, the at-Iarge reguirement in and

of itself holds no evi l.

CI ass Action

This Court finds that there is no need to certify IIALDEF or
LULAC as representing a class. Of necessity this decision rill
affect all voters living in the city of Austin. This suit ras
extremely rel I publ icrzed throughout the city. The granting or
denial of 9er]if-icatfo.n h-as--no effect in this case. Eyery party
rho sdught adniss-ibn to-this. case las adnitted. The Court finds
that Plaintiffs adequately represented al I persons rho bel ieve
that the current system is unconstitutional or unl arful. There
ras' in effect, no ray to opt out of this suit. This Court fjnds
that no benef it lou'ld be obtained by certif ication of any cl ass
i n th i s cause of tct i on.

Attorneys Fees

-

Defendants have not requested attorneys fees. t{onetheless,
the Court has considered the propriety of such an arard in this
case ' Attorney's fees are to be awarded to preyai I i ng Defendants
rhen Plaintiffs' suit is frivorous. christiansburs Garment



ComPanY Y.8.8.0.C. , {34 U.S. 1l?, a?L, gg s. ct. 694, 700 fig7g).
This Court agrees rlth the panel ln
725 F.?d 1017 (5th Clr. 1984), that
to Defendants rould have a chilling
constitutional violations that might

at I 023. Therefore, th i s Court ri I I
the enter i ng of th i s 0p i n i on for the

Defendants.

Yelasguez v. Clty of Abilene,

Findinqs of Fact

1. The city of Austin is located in Travis county, Texas, a

Central Texas County. Austin population, according to the lggo

decennial census, is 345,496.

2.- 0f this lgSotpoprlation, 64,166 or Igr of the city,,:_ --

totai poputation is of spani-sh or ilexlcan-American origin.
3. The I98O census states the Bl ack popul ation as 4Z, ll8 or

12.21 of the City of Austin,s total population.

4. There exist in the city of Austin geographicalty
identifiable areas of high concentration of minority population.
Specifically, these areas are census tracts g.01,9.02,10,
13.06, and 23.09 rhich contain a llexican-American population of
50r or greater; and census tracts 4.02,8.02,8.03,9.04r 9.01,
21.09, 2l-10, 22.0L, 22.02, and 22.02 rhich contain 50r or

greater BIack population.

5. Census tracts 4.02, 8.02, 8.03, 9.04, 9.01, 9.02, 10,

21. 09 ' 2L - 10, 21. 11, 22.0L, ??.02, and 23.09 conta i n lsl or

greater ni nor i ty popu I at i on.

the rrard of attorneys, fees

effect on sults to redress

be undesirable. 7ZS F.Zd

not entertain a motion after
arard of, attorneys fees for



6. Austln clty councl r erectlons currently Gncompass

clty-rlde votlng, knorn as at-Iarge electlons. Thls systen ras
adopted ln 1953r ?€Placlng a system ln rhlch councll elections
rere conducted through an at-large plurallty electoral system.

Currently' persons running for City Council ln Austin must run in
one of six places (excluding the maJor,s seat) and receive a

majority of votes from the voters at-Iarge to rin the election in
that place. The Austin City Council consists of six councll
persons and one mayor. At the time of trial, all of its members

rere elected each odd-numbered year to serye for tro year terms.
7 - John Trevino, a lrexican-Amerrcan, rs the f irst

l{exican-American to be elected to the City Counci l. He

elected in T975 and has seryed sjnce that date through
present. 

-

q-. gert Handcorl_ a Black, ras e'rected to the city council
in'1971; He ras the first BIack to be elected to the Austin City
Council. Since 1971, there has been at least one Black council
member serving in one of the six council seats. s

9. To measure to rhat extent minorities are participating
in the pol itical system, Defendants compared the minority group,s
proport i onal presence I n the popu I at i on to that group's
proportion of representation on the city counci l. The nethod

used ras a subtraction method and the result ras labelled the

sPlaintiffs invite this Court find that this constant tenurebv 1. B'l !ck, as rel I as the f ive term ienure of a t{eiiian-Ameii.inon the Council is nothing nore than the rhim of an Anglo induced
'ggnt l eman' s agreement. '- The Court ri l l now, 

- 
ana thr6u!noui-tIisopinion, decl ine that invitation.

tas

the



'ninorlty equlty score. r Defendants appl led this standard, rhich
ls extenslvely recognlzed ln the llterature relled on by experts
ln electoral demographics and nuniclpal government structures to
determine proportional representatlon. Black representation on

the City Council exceeds Black representation in the population
by 4.5 percent and Hispanic representation on the City Council is
belor the Hispanic portion of the population by ?.1 percent. The

conbined ninority equity score ras a positive 2.3 percent.
10- lli norities in Austin are represented in excess of their

proportional makeup of the population. This representation;as
higher than for any other city in Texas rith a population larger
than Austin's. Under the existing election system in Austin,
minorities have achieved proportiona'l representation not
gu?ranteed under either section z or the corstitutioR.

-- - 11.--since--I975, other than l,liguel- Guerrero, on-Iy three
minority candidates rho tere favored by a majority of their own

ethnic group have not been successful. Al I three were

l'lexican-Americans. None of the three received a majority of the
Black vote- Tro of the three received a larger percentage of the
Anglo vote than of the Black vote.

L2. A total of four candidates favored by at least one

ethnic minority rere not elected from 1975 to 19g3. In ten
races' minority candidates rho xere the choice of their racial or
ethnic comnunity were successful.

13. 0f the trenty-one (21) al'legedly polarized elections
since I975, only eight (8) of these elections involved a minority
candidate yersus an Anglo candidate. In tro of the elections,



the t975 general clectlon and the 1975 runoff electlon for place

5, the nlnorlty candldate ras successful. Of the remainlng six
'election3,.''the'nl'horlty connunltles spllt ln thelr support as to
four of the races. Thus, the loslng candldate ras not favored by

voters of one minority group.

14. The court is rell arare that even the history of
private discrimination in Austin should be considered tithin the
broad scope of the total ity of circumstances--that lt is relevant,
The Court further notes that the Plaintiff failed to establ ish
that rithin the past trenty years a record of private
discrimination against ninorities existed in Austin. As the

court has noted elsewhere in this 0pinion, the city has taken

effective steps (for example, the Fair Housing 0rdinance) to
ou_tlar discrininatory acts by pri-vate -citizens.

candidates f,or the City Counci I be residents of
geographic sub-di stricts.

that the at-l arge

particular

15. Plaintiff failed to establish the percentage of races

in rhich a candidate rho ron in the first election'lost in the
runoff. It follors that there ras no evidence presented of hor
often a minority candidate ron in the first election but then

Iost in the run-off ln real nunbers, or by eliminating
'non-serious'candidates (candidates rho received less than l0t
or 20/ of the entire vote), hor nany races included more than tro
candidates for that position. lJhen there are but tro candidates
for most positions, a maiority vote requirement is for practical
purposes no different from a pl ural ity vote reguirement.



17.

electlon

relative
18.

slnce the electlons are clty rlde, !Dd .at-l arg€r. the
distrlct nust be consldered to be.larger ln at least a

sense.

The clty llanager is Hispanic. The Senior Asslstant
City I'tanager is Black. 0f seyenteen appointments of assistant
city managers and department heads made by the city lrlanager,

seyen are Black or Hispanic, r€presenting rlll of the total.
19. A Black ras first elected to the City Council in I97l

and Blacks have served continuously on seyen different city
councils since 1971.9 These include ilr. Berl Handcox, l,lr.
Jinmy Snell and l{r. Charles Urdy.

20. A llexican-American, John Trevino ras first elected in
'1975, and is-currently serving in that of f ice. He is also
currently llayor Pro-Tem.

lZt. EYery Black and llexican-American elected to the Austin
city council has received a najority of votes cast by minority
voters.

?2. 0nIy one minority candidate rho has received the
majority vote of both the llexican-Americans and Bl acks has not
been successfu I .

23. The City of Austin has several Boards and Commissions.

In '1984-85, L6/ of the appointnents rere BI ack, and 11.5r rere

eTestirony and statistical evidence addressed adduced attrial Ievels that it is the_ greatest of fal l.ii.i-to beI iire thatboth mi nority groups ri I I aliays ag.ee on a candidate. As ri I rbe. ampl ified in.the 0pinion, ninority groups agreed rith eachother on a candidate less freguently- tIan iia ingio voters vithone or the other minority group.



llexlcan-Amerlcans. These flgures !re higher than those of
I 976 -77 .

24' The community Development commisslon has elght nembers.
currently, tro are Black and tro are r{exican-Americans.

25' The l{edical Assistance Program Advisory Board has seven
positions. Currently, tro Bl acks and one ilexican-American are
serving.

26. The Civil Service Commission has

appointed by the City l{anager. Currently,
llexican-American are on the Commission.

27' The Human Relations Commission has eight positions. It
has jurisdiction over compr aints fi red under the city,s ordinance
prohibiting 'discrimination. currentry, two B'r acks and three
l{ex i can-Amer i cans are serv-i-ng on th i s commi ss i on.

. The city Housing Authority has five members.

Currently, one Black and one llexican-American are serving on this
Author i ty. .

29' The Planning commission has nine positions. currently,
one Bl ack and tro Hispanics are serving on this commission. From
I975-80' a llexican-American chaired the planning Commission. The
current Chairperson is a llexican_American.

30- The private Industry councir has trenty members.
Currently, four Bl acks and seyen llexican-Americans are serving.

31. The Austin community college Board consists of nine
nembers. Initially, the Board ras appointed, it is nor elected
at-Iarge (but only three of the nine seats have come up for
election).

three members, all
one Black and one



32- The Austln Cornnunlty Col lege Eoard has f our nlnorlty
nenbers. Tro rre Black and tro are llexlcan-Amerlcan.

33. The Austin Independent School Dlstrlct and Austln
connunity col lege District have the same boundarles. The

minority population of the district ls I8.3I Hispanic and 11.3t
Black.

34. The Austin Human Rel ations Commission ras establ ished
in 1967.

35. The Equal 0pportunity for Enployment 0rdinance, l{o.

75-0710-A, nakes it unl awful to discriminate in employment on the
basis of race, coIor, rel igionl s€x, sexuar orientation, national
original, rg€, or physical handicap. It ras passed in 1975.

36. In 1976 the city passed a publ ic Accommodation

0rdinan-ce' ilo.76 04-01-0. It made illegal disc.rimina!ion against
virtua'l ly any groups, inc'tuding nrinorities, by hotels, motels,
restaurants, theatres, bars, aI I retail establishments, and other
establishments serving the pub'l ic.

37- The Fair Housing 0rdinance, r{o. gz 021g-0, ras
originally passed in 1977, iod amended and strengthened in lgg2.
It prohibits discrimination in housing on the basis of race.

38. The Court finds that 6Ot of the City's t273 niIIion in
community deyelopment block grant funds from 1979-.l9g4 ras
specifical ly housing rel ated. Additional Iy, the Court finds that
the Austin Housing Finance Corporation ras establ ished by the
city to make mortgage loans to Ior-income persons from funds made

available through city-issued bonds.

,E



39. Austln has budgeted tr6 milllon for the Hedlcal

Asslstance Program for the current fiscal year lgg4-95. Thls
progrlm ls 'operated entirely from local non-federal fundlng. It
provides essentia'l nredlcal servlces for the poor.

40. The city shares the cost rith rravis county for the

operati on of a shel ter for trans i ents.

41.

submi tted

current I y

4?.

I n response to the lilayor's Empr oyers I Task Force report
in April, 1984, the clty council has funded and is
constructing a Job training center.
For purposes of fiscal analysis, the city divided

Austin into eight districts, including an East Austin Black

district, ir East Austin llexican-American district, and a l{ear

south distrlct (which contains the third I argest minority
p.opu'l ation, rith a I arge number of Hispanics, a!though it is
a najority Hi-spanic).

'ninority dist'ricts..
The three districts together comprise

not

the
An analysis of current facil ities shows

forty-tro percent of the City's parks and recreation faci I ities,
and forty-five percent of aIl city facilities are located in the
minority districts. Facilities include fire station, EHS

stations, I ibraries, cI inics, and neighborhood centers.
43. The city provided over tG5 ni t I ion in capital

lmprovement funds to the ninority districts from lgll through
January 1985. lJhi'le some improvements, such as airport and

serage plant expenditures, rere of city-ride benefit, numerous

expenditures on items such as street and drainage improvements,

sidewalks, ilrd rasterater interceptors rere of local benefit. In

addition, the City has massive capital improvements p'l anned and



funded for 1984-90. The expendltures ln the nlnorlty dlstrlcts
rill be r totar of 44.9/ of arr non-crty-rrde caprtar
lnprovements. The Black district ls scheduled to receive s35.5
nllllon, the ilexican-American district t40.g nllllon and the near
south district t37 mil I ion ln capital lmprovements. Bonds have
already received voter approvar for these proJects.

44. The city of Austin rork force currentry has the
foI loring ethnic make-up: I9.OI Black (compared to lZ.Zl in
total population); zo.6l Hispanic (compared to 1g.ll in total
population), and 5g-1t Angro (compared to approximatery 6gr in
total population). r,rinority city rorkers are emproyed
extensively in upper level positions. In the top three city job
categories, officials/administrators, professionals, and
techn]ci-ans, the number of minority emproyees, as reil as the,
percentage of minorities by category has increased_ since 1925..

45' Travis county is a rerevant por iticar community. Since
1971, it least one of the four seats on the Travis county
commissioner's court has been fiiled by a r,rexican-American. At'least one BIack person has served on the four seat commissioner,s
Court since 1980.

46. Austin has been

contract / gurchase arards
1983-84, S.4l of all city
mi nor i ty bus i nesses, for
suryey of 29 cities shors

contract /gurchase dol I ars

effective in promoting

for mi nor i ty bus i ness enterpr i ses.
contract/ purchase dollars rent to

a total of $12.9 ni I I ion. A national
an average of only l.gt of nunicipal
going to minority business enterprises.

In

A7



17 - The Travls County Comnlssloner's Court ls comprised of
four precinct commissloners and the county Judge.

18. A l{exlcan-Amerlcan, Rrchard l,loyar ris elected to
commissionerrs court ln lgl? and has held that offlce to the
present t i me.

49. Jimmy Snel l, a Black, ras first elected to
Commissioner's Court in I981, !0d has continuously served to the
present tine.

50- The Austin Independent SchooI District is contained
rithin the city of Austin, and is a relevant political entity.
It consists of seven members. since lgl?, at Ieast one

l{exican-American has served on that School Board. AIso, one

Black person has served on the Austin Independent schoot District
School Board since 1968.

. 51. The Austin Independent School District -Board is elected
at large, by place, like the Aurtin city council, and has seven
members. Currently there are two Hispanics and one Black on the
school Board. A Black ras first erected in 19G3, a Hispanic in
1972.

5?. Travis county is represented in the Texas state
Legi sl ature by one state senator and four state representat ives.
Until .l976, these representatives rere elected at large. In
1974, the first Bl ack and Hispanic state representatives rere
elected, at I arge. In 1976, under court direction, four single
member d'istricts uere created. Since L974, Travis county
continuously has had members of each minority in the state
legislature.



53' In I984, A l{exlcan-Amerlcan ras elected to the Travls
County state senate seat. Thls rrce lncluded conpetltlon from
serious AngIo contenders.

54. Austln ls dlvided into four state legislatlve
districts. Since 1974, ct Ieast one llexican-American and one
Black person have served as elected representatives to the State
House from Aust i n.

55. The court has taken Judicia'l notice of the past
instances of official discrimination in Texas, but notes that at
least fifteen years have passed since they have been abol ished.
See, e-9.' Tex- Elec. code. Ann. art.5.09 (poIr tax; repealed
1967); Tex. Pen. Code. Art. 1661 (separate coaches, repealed
1967); Tex. Rev. Civ. Stat. Ann. art. 2900 (segregated schools,
repealed I959); Tex.- Rey. civ. stat. Ann. art. 3107 (rhite-
prinary, r€pealed lg?7); and Tex. Rey..C-iy_.
(separate bath facilities, amended .l969)

cons i dered these i nstances of h i stor ical

-..-.. The Court has

discrimination in its

Stat. An-n. _art.- Sg20

analysis of the totality of the circumstances.
56' From 1970 to 1980 Black family median income increased

more dramatical Iy than did the city of Austin medi an income.
greater than the city median.

57. In I980, 481 of the Black population resided in census
tracts rhere household rnedian incomes rere 8OI or greater of the
city household median. 0f the Austin Black population, zol
reside in census tracts yere household median incomes uere
greater than the c i ty med i an i ncome.



' ' 't, ,

58. There las no evldence that rny nlnorlty clttzens !s
voters or ctndldates have ever been harrassed, threatened or
tntl'nidated l'n Austln'rlthln rt least the past thirty years.

59. The Court flnds that the numerlcal ninorlty of Blacks

and l'lexican Americans, coupled rith a discriminatory Anglo bloc
vote, Pfevents minority candidates from obtaining a majority of
votes in the City or relevant elections.

60. The Court finds that no organization exlsts in Austin
rith sufficient strength or dominance over the election system to
be considered a slating organization. llor does the Court find
that any informal slating process exists that can or tries to
ensure a rhite candidate for eyery Counci I seat.

61. Th'e Court can f ind no evidence of eyen al Iegations of
discriminatory -action taken by officials in current -election

-practices. The court finds nothing discrtminatory in the'.
electoral system itself. The court can find no evidence to
suggest that in the past fifteen years City officials have taken

any action to intentional Iy impair minority access to the
pol itical system and the confidence of minorities in the openess

of that system.



Concluslons of Lrr

l. sectlon 2 of the votlng Rlghts Act, 42 u.s.c. S 1973r !s
lmended, appl ies to thls action agalnst the Clty of Austln.

2. A nuniclpal ity ln the State of rexas ls a .pol itical
subdivision'as deflned ln the yoting Rights Act of 1965.

3. Discriminatory intent need not be shorn to establ ish a

violation of Section 2.

4. Section 2 i s constitutional under Congress, enforcement
porer under the Fourteenth and Fifteenth Amendments. Section z

applies to voter dilution cases. l{cMillan v. Escambia County,
748 F.?d 1037, 1041 (5th Cir. I984).

5. Section 2 focuses on thether minorities have an equal

right to participate in the pol itical process.

6. Section 2 embodies a congressionit purpose- tg renove all
vestiges of minority race vote dilutlon tperpetuated on or after
the amendment's ef f ect ive date by state or 'locaI el ectoral
mechanisms. Ginqles vs. Edmisten,590 F. supp.345,355 (E.D.t{.c.
1984).

7 - A fi nding of intentional discrinination is necessary in
votlng dllution cases under the Fourteenth Amendment, and by

tmpl ication under the Fifteenth Amendment. This is a Factual
Finding, governed by a clearly erroneous standard. Roqers v.
Lodse, 458 U.S. 613, l0? S. Ct. 3ZlZ (1992).

8. In a voting dilution case, the Plaintiffs are required
to establish that racially neutral at-large systems are created
or maintained for the purpose of preyenting minority groups from

effectively participating in the electoral process before the



court can ftnd lt unconstltutlonal. For plaintlffs to succeed ln
a constltutional rssault on rn electlon lar that ls frclally
neutral ' Plalntlff must proYe that lt ras conceived or nalntalned
rith the intent or purpose of pronotlng lnvidlous discrlminatlon.

9' The Plaintlff ln a voting dilution case has the burden
of shoring that his group has been denied access to the political
process eguar to the access of other ethnic groups. r{cGi r r v.
Godsen County Comm'n, 535 F.Zd Zll , Zg0 (Sttr Clr. I976). This
includes the burden of corning forrard rith evidence of past
racial discrinination that precludes the effective participation
of B I acks in the current electoral process. llevett v..Sides, 571
F .2d ?09, ZZI ( 5th C lr. I 97g ) .

10. At-l arge elections are not prohibited per se, nor does
the lack ol r.:portignrt repres-entation automaticarry require a

findlng or a- viola!tin:l An absence of erected officiats rho are
ninoritles tay be considered. An at_.large system, or any system,
vio'l ates the voting Rights Act onry if it resurts in a deniar of
equa'l participation.

11. Legitimate goyernment por icies exist for maintaining
the current at-large system. The at-large system in Austin
maximizes ninority access. Thus, the at-rarge system furfir rs a
strong governnent pol icy rhor ry separate fron any purpose of
raci al d iscrinrination.

L2. llone of the Zimmer criteri a are concl us ive. Zimmer y.
tlcKeithen, 4g5 F.Zd l1gl *n Cir. 1973) (en banc), aff.d on
other qrounds sub nom., Erst Carrol I paris Schoo't ,ol;-
ilarshall, 4Zq U.S. 636, 96 S. Ct. 1083 il97G). A finding of the



exlstence or non-existence of the factors does not of ttself
requlre t certaln result. The proper standard ls r total lty of
clrcumstances. .

13. Pol arized or bloc voting does not of ltself lnfrlnge on

the Constitutional rights of P'laintiffs. Fourteenth and

Fifteenth Amendment rights are not infringed by the process of
polarized voting. llevett v. Sides,57L F.2d 209 (5th Cir. l97g).

14. Raci al discrinination need only be one purpose, and not

even a primary purpose, of an official act in order for a

Yiolation of the Fourteenth and Fifteenth Amendments to occur.

Yelasquez, 725 F.2d at L022.

15. Pol arized voting is not itself unconstitutional, and

does not ipsb facto render the electoral framework in rhich it
occurs unconstit,ltional. Jones v. City of Lubbock,_ 727 F.?d at

_ 

-

385 n.1-7 (5th Cir.-1984).
16. Even cons i stent defeat of a mi nor i ty group , s

candidates, standing a1one, does not cross constitutional bounds.

l{evett v. Sides, 57L F.2d 209, 2L6 (5th Cir. lgZB) citing
llhitcomD y. Chavis, 403 U.S. L24, 152-53 (I971).

L7. The current electoral system in Austin violates neither
the United States Constltution or the Yoting Rights Act of 1965,

as amended.

c0ilcLUS I0r{

This Court finds that the current system is not

unconstitutional or unl arful. Plainfiffs have fai Ied to prove



that any of the prlnary Zlnmer factors exlst ln the current
electoral system. In addltlon, Pl alntlffs fal led to establ lsh
that ninorltles Iack access to the polltical process or that the
council that is elected is unresponsive to the needs and

interests of the minorlty community. The Court finds that the
evidence reighs heavi ly against any inference or finding of
intentional discrimination and must conclude that under the
total ity of circumstances test, the electoral process has neither
the result nor the effect of diluting the efficacy of minority
pol itical participation. Ethnic minorities have equal access to
all aspects of the political system, rhether it be to register,
to vote, oF to run for office. ilone of the evidence presented by
Plaintiffs'is sufficient to fulfill the arduous task of
ove_rcoming_the c'lear legislative proscriptiol against a

-Iecuirement of ploportional representation_. The court has

careful ly anal yzed the voting Rights Act, and its legisl ative
histoFYr and finds that the current system comports with the
legislative mandate.

t{ith due respect for the immense importance of the quest.ions
presented to it, this court concludes that plaintiffs have failed
to establ ish a deprivation of either constitutionar or
legislative rights. Plaintiffs' evidence is insufficient under
either an intentional discrimination analysis or a results
analysis. Ilo Constitutiona'l or statutory infirmity having been

established by plaintiffs, the responsibil ity for local
g0Yernmental organization in the City of Austin properly remains



It ra

rith the Clty Councll and electors of that Clty,
Federal Court. Judgnent rl I I be EilTERED for the

rnd not rlth the

Defendants.

srG*ED and ExTERED this JM*of irarch, reB5.

s R. ilol{L
ED STATES

Iil
DISTR ICT JUDGE