Campos v. City of Baytown, Tex.

• Decision Date: 01 April 1988
• Docket Number: No. 87-2359,87-2359
• Citation: 840 F.2d 1240
• Parties: Tony CAMPOS, et al., Plaintiffs-Appellees, Cross-Appellants, v. CITY OF BAYTOWN, TEXAS, et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1240

840 F.2d 1240

Tony CAMPOS, et al., Plaintiffs-Appellees, Cross-Appellants, v. CITY OF BAYTOWN, TEXAS, et al., Defendants-Appellants,

Cross-Appellees.

No. 87-2359.

United States Court of Appeals, Fifth Circuit.

April 1, 1988.

Arthur Val Perkins, Steven C. Oaks, Mueller, Oaks & Hartline, Houston, Tex., Randall B. Strong, City Atty., City of Baytown, Baytown, Tex., for defendants-appellants, cross-appellees.

Deborah Sterling Burleson, Asst. City Atty., Abilene, Tex., for amicus--City of Abilene.

William L. Garrett, Dallas, Tex., Rolando L. Rios, Southwest Voter Reg. & Ed. Project, San Antonio, Tex., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, and REAVLEY, Circuit Judge, and HUNTER, ^* District Judge.

REAVLEY, Circuit Judge:

This is a voting rights case. We uphold the district court's finding, as not clearly erroneous, that the at-large election of City of Baytown council members constitutes a violation of Sec. 2 of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 (Supp.1987) (as amended June 29, 1982), because of vote dilution of the politically cohesive combination of Blacks and Mexican-Americans. However, the 5-3-1 plan, proposed by the city and adopted by the district court, has not been precleared. See 42 U.S.C. Sec. 1973c. We, therefore, vacate the district court's approval of the plan and remand for compliance with Sec. 1973c.

I.

The City of Baytown, located in Harris County, Texas, had a 1980 census population of 56,917. Of that, 9348 (16.42%) were Hispanic and 5096 (8.95%) were Black. The combined minority population was 14,444 (25.4%).

Baytown has an at-large election system for its six city council members and its mayor. Although elected at-large, each council member has to reside in a particular A number of Hispanic and Black citizens of Baytown brought this suit, individually and as a class action, alleging that the at-large system was a violation of Sec. 2 of the Voting Rights Act. 42 U.S.C. Sec. 1973. Combining Blacks and Hispanics as one minority group, the district court found that the minority group was sufficiently large and geographically insular to form a majority in a single member district. Focusing exclusively on elections with minority candidates, the court found that Blacks were cohesive, Hispanics were cohesive, together the minority group was cohesive, and that Anglos voted sufficiently as a bloc to usually defeat the minority's preferred candidate. To review the totality of the circumstances, the court considered the factors enumerated in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (en banc), aff'd sub. nom. on other grounds, East Carrol Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam), and concluded that a Sec. 2 voter dilution violation was established.

                district resulting in a numbered-post system. 1   Additionally, there is a majority vote requirement. 2   The system has remained unchanged since Baytown was formed in its present shape in 1947.  No minority member, either Black or Hispanic, has ever been elected to the Baytown City Council
                

The court then ordered the city to submit an alternate plan. Baytown responded with a 5-3-1 plan that had five council members elected from districts including one minority district, three council members elected at-large, and one mayor elected at-large. Paying heed to legislative deference, the district court adopted the city's plan.

II.

A.

In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court, for the first time, considered the 1982 amendments to Sec. 2 of the Voting Rights Act, 42 U.S.C. Sec. 1973, ³ in the context of a challenge to an at-large election system. The Court noted that the purpose for the congressional amendment to Sec. 2 was to eliminate the requirement of showing discriminatory intent in a challenge to a contested electoral mechanism. Gingles, 106 S.Ct. at 2759; see City of Mobile, Ala. v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Instead, the "results test" of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), was re-established. Specifically, the Court found that the Senate Judiciary Report focused on the Zimmer factors in showing a Sec. 2 voter dilution claim. Gingles, 106 S.Ct. at 2759-60. ⁴ Although That test breaks down into three parts:

                many or all of the factors are relevant in a challenge to an at-large system, the Court concluded that "the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice," unless "a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group."    Gingles, 106 S.Ct. at 2766 (emphasis in original)
                

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.

Gingles, 106 S.Ct. at 2766-67 (cross citation omitted). The second and third parts, cohesion and majority bloc voting, are usually proven by statistical evidence of racially polarized voting. Gingles, 106 S.Ct. at 2768-69. As the Court explained:

the question whether a given district experiences legally significant racially polarized voting requires discrete inquiries into minority and white voting practices. A showing that a significant number of minority group members usually vote for the same candidates is one way of proving the political cohesiveness necessary to a vote dilution claim, and, consequently, establishes minority bloc voting within the context of Sec. 2. And, in general, a white bloc vote that normally will defeat the combined strength of minority support plus white "crossover" votes rises to the level of legally significant white bloc voting.

Gingles, 106 S.Ct. at 2769-70 (citation omitted).

The ultimate finding of minority voter dilution is then to be based on the totality of the circumstances. Gingles, 106 S.Ct. at 2782. That finding, and its subsidiary findings, are subject to the clearly erroneous standard of appellate review for fact finding. Gingles, 106 S.Ct. at 2781; Fed.R.Civ.P. 52(a). Under that standard, "a finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). If the factual determinations are based on determinations of the witnesses' credibility, or on reasonable interpretation or inferences from the testimony or other evidence, the district court's findings cannot be clearly

                erroneous.    Anderson, 470 U.S. at 574-75, 105 S.Ct. at 1511-12.
                

B.

There is nothing in the law that prevents the plaintiffs from identifying the protected aggrieved minority to include both Blacks and Hispanics. Section 1973(a) protects the right to vote of both racial and language minorities. See 42 U.S.C. Secs. 1973(a), 1973b(f)(2). Congress itself recognized "that voting discrimination against citizens of language minorities is pervasive and national in scope," 42 U.S.C. Sec. 1973b(f)(1), and similar discrimination against Blacks is well documented. If, together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters. To prove the fact of their electoral dilution, plaintiffs must prove that the minorities so identified actually vote together and are impeded in their ability to elect their own candidates by all of the circumstances, including especially the bloc voting of a white majority that usually defeats the candidate of the minority.

III.

A.

Gingles requires that the minority group be "sufficiently large and geographically compact to constitute a majority in a single member district." Gingles, 106 S.Ct. at 2766. The district court found that the minority group was concentrated in the southern sections of Baytown. Evidence was introduced that contiguous single member districts with 72.3% minority population (50% Hispanic, 22.3% Black), 75.4% minority population (50.7% Hispanic, 24.7% Black), and 76.9% minority population (49.5% Hispanic, 27.4% Black) ⁵ were possible. Additionally, the City's plan, adopted by the district court, has a single member district (out of five) that has a 65.9% minority population (44.6% Hispanic, 21.3% Black). The district court was not clearly erroneous in deciding that this Gingles requirement was satisfied.

Baytown argues that since there are Blacks and Hispanics spread throughout the city and since 51% of Baytown's Blacks and 44% of its Hispanics do not live in the minority district, the plaintiffs have failed to show that it is compact and insular enough to meet the Gingles requirement. We disagree. The fact that there are members of the minority group outside the minority district is immaterial. All that is required is that the minority group be "sufficiently large and geographically compact to constitute a majority in a single member district." Gingles, 106 S.Ct. at 2766 (emphasis added). As the Court explained, the purpose behind the requirement is that "[u]nless minority voters possess the potential to elect representatives in the absence of the...