Anne Harding v. County of Dallas, Texas

• Decision Date: 17 January 2020
• Docket Number: No. 18-11256,18-11256
• Citation: 948 F.3d 302
• Parties: ANNE HARDING ; Gregory R. Jacobs; Johannes Peter Schroer; Holly Knight Morse, Plaintiffs - Appellants v. COUNTY OF DALLAS, TEXAS; Clay Lewis Jenkins, in his Official Capacity as County Judge of Dallas County, Texas; Theresa Daniel ; Mike Cantrell ; John Wiley Price ; Elba Garcia, Defendants - Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

948 F.3d 302

ANNE HARDING ; Gregory R. Jacobs; Johannes Peter Schroer; Holly Knight Morse, Plaintiffs - Appellants

v.COUNTY OF DALLAS, TEXAS; Clay Lewis Jenkins, in his Official Capacity as County Judge of Dallas County, Texas; Theresa Daniel ; Mike Cantrell ; John Wiley Price ; Elba Garcia, Defendants - Appellees

No. 18-11256

United States Court of Appeals, Fifth Circuit.

FILED January 17, 2020

Daniel I. Morenoff, The Morenoff Firm, Dallas, TX, Adam K. Mortara, Krista J. Perry, Bartlit, Beck, Herman, Palenchar & Scott, L.L.P., Chicago, IL, for Plaintiffs-Appellants.

Chad Wilson Dunn, Esq., Brazil & Dunn, Austin, TX, J. Gerald Hebert, Esq., Campaign Legal Center, Washington, DC, Rolando Leo Rios, I, Esq., San Antonio, TX, for Defendants-Appellees.

Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Four Anglo voters in Dallas County, Texas challenge the county’s 2011 redistricting plan for electing county commissioners, urging that it denied their rights under § 2 of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment by providing only one Anglo-majority district.

I.

Dallas County is governed by a Commissioners Court, comprising a county judge elected at-large and four commissioners elected from single-member districts. In 2011, the Commissioners Court concluded that redistricting was necessary, as the districts created in response to the 2000 Census were now malapportioned. Between 2000 and 2010, the county’s population grew by 6.7%, and its demographics shifted. The Hispanic share of the total population grew from 29.9% in 2000 to 38.3% in 2010 and the African-American share increased from 20.1% to 21.9%, while the Anglo share fell from 44.3% to 33.1%, a drop of nearly 200,000 people over the decade.

Faced with this dynamic, the Commissioners Court turned to redistricting, first hiring redistricting counsel and then an expert in North Texas geography and demographics, Matt Angle. There were then two Republican commissioners, two Democratic commissioners, and a Democratic county judge. The Court met in an executive session to discuss boundaries for map drawing with counsel and Angle. Responding to the resulting instruction, they presented a set of redistricting criteria, which the commissioners unanimously adopted.¹ Using the criteria, Angle generated four maps redistricting the county and presented them to the Commissioners Court during a closed-session meeting. The Commissioners selected one of the maps to be presented in three public hearings. After the hearings, the Commissioners Court adopted the new map by a vote of three to one.²

In its submission of the new map to the Department of Justice for preclearance under § 5 of the Voting Rights Act, the Commissioners Court explained three of the new map’s districts³ :

The new Commissioner Precinct map maintains two current minority opportunity precincts and creates a new minority opportunity precinct in Precinct 1. Specifically, the new map maintains Precinct 3 as an African American opportunity precinct. The African American population is increased in this precinct from 45.6% to 47.9%. Precinct 4 which is currently represented by a Hispanic, who was the candidate of choice of minority voters in 2010, has not been retrogressed. In fact, the current Precinct 4 is 49.3% Hispanic and 65.5% Black plus Hispanic. The new Precinct 4 is 57.9% Hispanic and 72.1% Black plus Hispanic. Precinct 1 is a new minority opportunity precinct. Precinct 1 has a Hispanic population of 48.0% and is 68.4% Black plus Hispanic.

And District 2 is an Anglo-majority district. Anglo voters account for 60.2% of its total population and 64.0% of the voting-age population. With the new map in effect, the Commissioners Court has a Democratic county judge, one Republican and three Democratic commissioners.

II.

In January 2015, four Anglo voters, one for each of the four districts, filed this suit against Dallas County and the members of the Commissioners Court in their official capacities. They alleged that the 2011 map violates § 2 of the Voting Rights Act by diluting Anglo votes. They also brought a claim under the Equal Protection Clause of the Fourteenth Amendment, assertedly two separate claims: intentional vote dilution and racial gerrymandering.⁴

Two years and two amended complaints later, the parties cross-moved for summary judgment. The district court concluded that the "equal protection claim" was pleaded not as a racial gerrymandering claim but "as a vote dilution claim, and nothing more." The district court set the case for trial thirty days hence. Plaintiffs did not seek leave to amend their complaint a third time.

III.

The case proceeded to a four-day bench trial with testimony from each of the four Plaintiffs and two expert witnesses for each side. The district court concluded that Plaintiffs "failed to prove that, were a second Anglo majority district drawn, Anglos would possess the potential to elect an Anglo Republican." Plaintiffs appeal the rejection of their § 2 vote dilution claim after trial and the district court’s pre-trial ruling that no claim of racial gerrymandering was before the court.

IV.

Vote dilution suits are "peculiarly dependent upon the facts of each case, and require[ ] an intensely local appraisal of the design and impact of the contested electoral mechanisms."⁵ On summary judgment and after trial, questions of law are reviewed de novo , while questions of fact are reviewed for clear error.⁶ The district court’s findings as to the threshold conditions established in Thornburg v. Gingles and the district court’s ultimate findings on vote dilution are subject to review only for clear error.⁷ A finding is clearly erroneous if the "reviewing court is left with the definite and firm conviction that a mistake has been committed. ..."⁸ By contrast, a finding is not clearly erroneous simply because the reviewing court "is convinced that it would have decided the case differently."⁹

V.

We turn first to Plaintiffs’ standing to assert their § 2 vote dilution claim. The standing gate opens the courthouse door to plaintiffs with an injury-in-fact that is traceable to the defendant’s actions and likely to be redressed by a favorable decision.¹⁰ In vote dilution cases, the "harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district."¹¹

The district court found that each Plaintiff is an Anglo voter residing in a different district in Dallas County and that each asserts a legally cognizable injury—the dilution of their votes, that the Anglo voting population is packed into District 2, wasting Anglo voting power, and that the remainder of the Anglo population is cracked into Districts 1, 3, and 4, diluting the strength of their Anglo voters.

While the uncontested facts appear to establish standing, Defendants urge that three of the Plaintiffs, through their testimony, nonetheless lost their otherwise-valid standing. As the argument goes, one Plaintiff testified at trial that her only injury was that her commissioner—a Republican whom she could not identify—was not conservative enough. Such testimony, Defendants say, admits the want of an injury to a legally cognizable interest and cannot be redressed in this suit, while Plaintiffs dispute the characterization and claimed effect of the testimony.

This argument fails. The Plaintiff’s inability to explain the legal theory underlying her vote dilution claim is not fatal. Standing is not a pop quiz administered by able defense attorneys to unsophisticated plaintiffs. It is conceded that each voter resides in a district where their vote has been cracked or packed. That is enough. And the contention that the Plaintiffs’ injury cannot be redressed here collapses standing and merit resolution.

VI.

A.

The district court concluded that Plaintiffs did not prove that Anglos, a minority in Dallas County, have the potential to elect their preferred candidate, a Republican, in a second commissioner district. Plaintiffs insist that the district court applied the wrong standard, that they need only provide an alternative map with two Anglo-majority districts. In their view, the district court, by demanding more evidence, has required them to show a "sure win," not an opportunity of success.¹²

1.

Section 2 of the Voting Rights Act prohibits any "voting qualification or prerequisite to voting or standard, practice, or procedure ... 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[.]"¹³ It governs efforts to dilute the vote of racial minorities through redistricting. To establish a § 2 vote dilution claim, a plaintiff must show, "based on the totality of circumstances, ... that the political processes leading to nomination or election" are "not equally open to participation by members of a class of citizens ... 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."¹⁴ Section 2 does not, however, "establish[ ] a right to have members of a protected class elected in numbers equal to their proportion in the population."¹⁵

In Gingles , the Supreme Court articulated a two-step test for establishing a § 2 vote dilution claim.¹⁶ At the first step, the plaintiff must satisfy three threshold conditions: A "minority group" must be "sufficiently large and geographically compact to constitute a majority in a single member district";¹⁷ the minority group must be "politically cohesive";¹⁸ and the majority group must vote as a bloc such that it can "usually ... defeat the minority’s preferred candidate."¹⁹ "Failure to establish any one of these threshold requirements is fatal,"²⁰ thresholds that guide the determination of whether "minority voters possess the potential to elect...