Campos v. City of Houston, 95-20740
| Decision Date | 19 May 1997 |
| Docket Number | No. 95-20740,95-20740 |
| Citation | 113 F.3d 544 |
| Parties | Jesse CAMPOS; W.R. (Resendez) Morris; Mexican American Bar Association of Houston, Plaintiffs-Appellants, v. CITY OF HOUSTON; Jim Greenwood; Eleanor Tinsley; Shelia Jackson Lee; Ernest McGowen; Vince Ryan; Ben T. Reyes; Dale M. Gorczynski; Al Calloway; Christine Hartung; John Goodner; Frank O. Mancuso; Robert C. Lanier; Gracie Saenz; Judson Robinson, III; Helen Huey; Michael J. Yarbrough; Martha J. Wong; Jew Don Boney, Jr.; Rob Todd; Ray F. Driscoll; Felix Fraga; John Castillo; Joe Roach; Orlando Sanchez; John W. Peavy, Jr.; John Kelley, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Judith A. Sanders-Castro, San Antonio, TX, Frumencio J. Reyes, Jr., Reyes and Reyes-Castillo, Houston, TX, Frank G. Alvarez, Jr., Houston, TX, for Plaintiffs-Appellants.
C. Robert Heath, Robert S. Bickerstaff, Jr., Myra A. McDaniel, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX, for Defendants-Appellees.
Rebecca K. Troth, U.S. Dept. of Justice, Washington, DC, David Kevin Flynn, Dept. of Justice, Washington, DC, for U.S. of America, Amicus Curiae.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, and SMITH and DUHE, Circuit Judges.
Jesse Campos, W.R. (Resendez) Morris, and the Mexican American Bar Association of Houston appeal the grant of summary judgment in favor of the City of Houston, et al., in this voting rights case. For the reasons assigned, we affirm.
Houston redrew its single-member districts for city council elections based on 1990 census data which disclosed that Hispanics made up 27.6 percent of the total population and 24.1 percent of the voting-age population. The redistricting plan included a mayor and fourteen council members elected from nine single-member districts with five elected at large. Houston voters approved the plan in August 1991. 1
Since 1991 Houston consistently has elected Hispanic candidates from its two majority Hispanic voting-age population districts. In 1993 an Hispanic incumbent was reelected at large. In 1995 two Hispanic candidates were elected at large. Nevertheless, plaintiffs contend that eliminating the at-large seats and creating additional single-member districts would permit the Hispanic community to elect more city council members. Their evidence indicates that four districts could be drawn in which voting-age Hispanics would be numerous enough to influence the election results.
The district court concluded that the plaintiffs failed to establish a genuine issue of material fact on the threshold requirements of a vote dilution claim and granted summary judgment in favor of Houston. The plaintiffs timely appealed.
We review the district court's grant of summary judgment de novo, 2 construing all
evidence in the light most favorable to the nonmoving party. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 3
In 1982 Congress amended section 2 of the Voting Rights Act of 1965 to provide:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color....
(b) A violation of subsection (a) ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. 4
In Thornburg v. Gingles, the Supreme Court applied section 2 to an at-large electoral scheme and decided that Congress had intended to eliminate the requirement of showing discriminatory intent in challenges to electoral mechanisms. 5 The amendment re-established the "results test," 6 which focuses on whether the challenged electoral practice prevents the plaintiffs from having an equal opportunity to participate in the political process and to elect candidates of their choice. According to the Court:
The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives. This Court has long recognized that multimember districts and at-large voting schemes may " 'operate to minimize or cancel out the voting strength of racial [minorities in] the voting population.' " The theoretical basis for this type of impairment is that where minority and majority voters consistently prefer different candidates, the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters. 7
The Court noted that several factors could be probative of a section 2 violation. These factors were derived in part from our en banc decision in Zimmer v. McKeithen: 8
(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 (4.) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
(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 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. 9
Two other factors may establish a violation: " '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' [and] '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.' " 10 Most importantly, the Court articulated three preconditions to establishing a vote dilution claim:
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.... Second, the minority group must be able to show that it is politically cohesive.... 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, such as the minority candidate running unopposed, ... usually to defeat the minority's preferred candidate. 11
Failure to establish any one of these threshold requirements is fatal. 12 In the instant case, the district court found that plaintiffs failed to create a genuine issue of material fact on the first and third Gingles factors.
The district court concluded that plaintiffs could not increase the number of Hispanic council members by redistricting. At time of trial three Hispanics served on the city council--two were elected from single-member districts and one was elected at large. When this appeal was orally argued, there were four Hispanic council members--two elected from single-member districts and two elected at large.
This appeal requires us to confront directly the relevance of citizenship to a vote dilution claim. The Supreme Court thus far has declined to address this issue. 13 Houston's 1990 census evidence shows that 45.8 percent of voting-age Hispanic Houston residents were noncitizens and ineligible to vote. By comparison, 2.2 percent of the non-Hispanic Anglo voting-age population and 1.6 percent of the non-Hispanic Black voting-age population were noncitizens. In communities in which different racial and ethnic groups have approximately equal percentages of noncitizens this data would be insignificant. In Houston, however, the variation is quite marked.
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