Sanchez v. Bond, 87-2860

• Decision Date: 30 May 1989
• Docket Number: No. 87-2860,87-2860
• Parties: Jennie SANCHEZ, Stella Sanchez, Adeline Sanchez, Dora Trujillo, and Charles Jaramillo, Plaintiffs-Appellants, v. William BOND, County Clerk and Recorder of Saguache County, Colorado, Cecil Hall, Keith Edwards, Chuck Grant, Board of County Commissioners for Saguache County, John Price, County Chairman of the Democratic Party for Saguache County and Robert Felmlee, County Chairman of the Republican Party for Saguache County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1488

875 F.2d 1488

Jennie SANCHEZ, Stella Sanchez, Adeline Sanchez, Dora

Trujillo, and Charles Jaramillo, Plaintiffs-Appellants, v. William BOND, County Clerk and Recorder of Saguache County,

Colorado, Cecil Hall, Keith Edwards, Chuck Grant, Board of

County Commissioners for Saguache County, John Price, County

Chairman of the Democratic Party for Saguache County and

Robert Felmlee, County Chairman of the Republican Party for

Saguache County, Defendants-Appellees.

No. 87-2860.

United States Court of Appeals,

Tenth Circuit.

May 30, 1989.

Jose Garza, Mexican American Legal Defense and Educ. Fund, and Antonia Hernandez, Norma V. Cantu, Judith A. Sanders-Castro, and Albert H. Kauffman of MALDEF, San Antonio, Tex., with him on the brief, for plaintiffs-appellants.

S. Morris Lubow, Denver, Colo., and Robert S. Crites, of Crites and Farish, Monte Vista, Colo., with him on the brief, for defendants-appellees.

Before MOORE and ANDERSON, Circuit Judges, and BROWN, ^* District Judge.

WESLEY E. BROWN, District Senior Judge.

This is an appeal of a vote dilution case. Plaintiffs-Appellants are voters from Saguache County, Colorado, who contend that the at-large election procedure used to elect county commissioners in Saguache County impermissibly dilutes Hispanic votes in violation of Section 2 et seq. of the Voting Rights Act, as amended, 42 U.S.C. Sec. 1973 et seq. After hearing the evidence, the district court concluded that the plaintiffs had failed to prove a violation of Sec. 2 and entered judgment in favor of the defendants. We affirm.

Appellants raise two main arguments on appeal. First, they contend that the district court misinterpreted the Supreme Court's ruling in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), and, as a result, applied erroneous standards of law to the evidence. Second, appellants argue that the trial court's factual findings were clearly erroneous. In order to address these claims, we first review some of the evidence presented in the district court.

Saguache County consists of approximately 3,000 square miles in central Colorado. In 1980, the county had a total population of 3,935, of which 41% were Hispanics ¹ and 57% were Anglos. ² Census records indicate that 36% of the voting age population was Hispanic in 1980. Despite the number of Hispanics in the county, no Hispanic has ever been elected to the Saguache County Commission. Colorado state law requires the division of each county in Colorado into three compact districts for the purpose of electing a board of county commissioners. One commissioner from each district is elected by the voters of the whole county. Each commissioner must be a resident of the district he or she is elected to represent.

The plaintiffs presented several witnesses who testified as to the political situation in Saguache County. The witnesses testified that the community was racially polarized and that Hispanics were unable to elect candidates to office in county-wide races. Several of the plaintiffs' witnesses had been defeated in county elections and stated their opinion that their losses were due to bloc voting by Anglo voters.

Plaintiffs also presented the testimony of Dr. Robert Brischetto, an expert on voting patterns and election systems. Dr. Brischetto stated his opinion that Hispanics in Saguache County had less opportunity than Anglos to participate and to elect candidates of their preference. Dr. Brischetto concluded that this condition was due to the at-large election procedure used in Saguache County elections. Dr. Brischetto's conclusion was based in large part upon a statistical study of selected political contests. He examined ten races in which Anglo and Hispanic candidates ran against each other. Using the voting results from each precinct, Dr. Brischetto compared the proportion of Hispanic voters in each precinct with the proportion of support received by the Hispanic candidate. He found a high correlation between the two, leading him to conclude that voting in nine of the races was "highly polarized." Dr. Brischetto stated that, in his opinion, whites voted as a bloc to systematically defeat Hispanic candidates. He also concluded that Hispanics were politically cohesive, noting that his study showed that Hispanics generally vote as a bloc for Hispanic candidates.

The defendants' expert gave his opinion that voting in Saguache County was polarized along party lines, suggesting that party affiliation was a better predictor of how a voter would vote than was the race of the voter. The defendants also presented testimony from lay witnesses, who stated that a majority of the Democratic party in Saguache County was made up of Hispanics and that Hispanics controlled the nominating process in the party. The witnesses also testified that an Anglo could not be nominated by the Democratic party without the approval of a group of Hispanics that included several of the plaintiffs. Additionally, the witnesses gave their opinion that Hispanics in Saguache County were not a single cohesive group but consisted of several politically distinct groups. One of the defendants, an Anglo county commissioner, testified that he received substantial Hispanic support in his election to the commission.

Results from county elections dating back to the 1970's were used by both sides in the trial court. Plaintiffs pointed out that no Hispanic had ever won a contested county-wide election and that three Hispanics had run for county commissioner and had been defeated. The defendants showed that a few unopposed Hispanics had won county-wide positions. The defendants also noted that Democratic candidates had been regularly elected to county positions, including the county commission.

I. Section 2 and the Gingles requirements

Section 2 of the Voting Rights Act provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in Section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to 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.

The Supreme Court examined Sec. 2 in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Noting that amended Sec. 1973 repudiated the "intent test" of Mobil v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Gingles court stated that the question Sec. 2 poses is whether, as a result of a challenged electoral practice, plaintiffs do not have an equal opportunity to participate in the electoral process and to elect candidates of their choice. The court found that the essence of a Sec. 2 claim is that a certain electoral practice interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by minority and white voters to elect their preferred representatives. Gingles, 478 U.S. at 48, 106 S.Ct. at 2765.

In order to address a claim under Sec. 2, a court must assess the impact of the contested election practice on minority electoral opportunities by assessing certain objective factors. The Senate Report accompanying the 1982 amendment to Sec. 2 lists several factors that may be relevant to a Sec. 2 claim:

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

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

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

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

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

Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are:

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

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

S.Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S.Code Cong. & Ad. News 177, 206-07.

Several points should be kept in mind in applying the foregoing set of factors....