Campos v. City of Baytown, Tex.

• Decision Date: 07 July 1988
• Docket Number: No. 87-2359,87-2359
• Citation: 849 F.2d 943
• 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 943

849 F.2d 943

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.

July 7, 1988.

Arthur Val Perkins, Mueller, Oaks & Hartline, Steven C. Oaks, 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, San Antonio, Tex., for plaintiffs-appellees cross-appellants.

Appeals from the United States District Court for the Southern District of Texas, John V. Singleton, Judge.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion April 1, 1988, 5th Cir.1988, 840 F.2d 1240)

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

PER CURIAM:

The Petition for Rehearing is DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Federal Rules of Appellate Procedure and Local Rule 35) the Suggestion for Rehearing En Banc is also DENIED.

Before CLARK, Chief Judge, GEE, REAVLEY, POLITZ, KING, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, and JONES, Circuit Judges. ^**

HIGGINBOTHAM, Circuit Judge, with whom GEE, GARWOOD, JOLLY, DAVIS and JONES, Circuit Judges, join dissenting from denial of rehearing en banc:

Today this court refuses to consider en banc whether the protections of the Voting Rights Act extended to Blacks and Hispanics also apply to a newly defined minority--a coalition of Blacks and Browns. The court thus accepts this simple statement in the panel opinion:

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 [Thornburg v.] Gingles [478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) ] threshold as potentially disadvantaged voters.

Campos v. City of Baytown, 840 F.2d 1240, 1244 (5th Cir.1988). This is a disturbing reading of a uniquely important statute, and one with the potential to affect the very structure of every school district, county, and city government in most states of this nation. ¹ It is puzzling then that the panel opinion cites no authority and offers no reasoning to support its fiat.

To the contrary, the pronouncement, despite its Olympian ring, is no more than the result of asking the wrong question. The question is not whether Congress in the Voting Rights Act intended to prohibit such coalitions; instead, the proper question is whether Congress intended to protect those coalitions. A statutory claim cannot find its support in the absence of prohibitions. Playing with the structure of local government in an effort to channel political factions is a heady game; we should insist that Congress speak plainly when it would do so. Thus, even if the panel had attempted to support its fiat with inferences of intent gleaned from the statute, it would not have been proper to do so.

Despite the panel's conclusion, the fact that Congress extended voting rights protection to language minorities does not answer the question whether Congress intended to extend protection to a group consisting of two distinct minority groups. In deciding to protect language minorities, Congress recognized that language and racial minorities share many disabilities. To assume, however, that a group composed of both minorities is itself a protected minority is an unwarranted extension of congressional intent. A group tied by overlapping political agendas but not tied by the same statutory disability is no more than a political alliance or coalition. I have explained before my concern that so stretching the concept of cohesiveness dilutes its effectiveness as a measure of the causal relationship among the statutory disability, election structures or processes, and election outcomes. See LULAC v. Midland Independent School District, 812 F.2d 1494, 1503 (5th Cir.1987) (Higginbotham, J., dissenting). I explained there that:

The purpose of the Act is to redress racial or ethnic discrimination which manifests itself in voting patterns or electoral structures. The tie to race or national origin in Justice Brennan's opinion in Gingles is the raw correspondence in votes and outcome. Its three step inquiry assumes a group unified by race or national origin and asks if it is cohesive in its voting. If a minority group lacks a common race or ethnicity, cohesion must rely principally on shared values, socio-economic factors, and coalition formation, making the group almost indistinguishable from political minorities as opposed to racial minorities. At the least, concluding that a political group lacking the cementing and predictive force of common race or national origin is nonetheless politically cohesive under Gingles is a difficult undertaking with significant risks. The risks include the reality that diluting the requirement of cohesion expands the mission of the Act beyond the treatment of present-day manifestations of chronic bigotry to a more general device for accommodating majority government and plural constituents--thereby revealing a distrust of the ability of our republican government to do so.

Id. at 1504. Although we took Midland en banc, we did not reach the issue of cohesiveness because we decided the case on state-law grounds. See LULAC v. Midland Independent School District, 829 F.2d 546, 547-48 (5th Cir.1987) (en banc). Nevertheless, the assertion that the groups consolidated in Midland were cohesive in the Gingles sense was sheer fiction. It was interest-group politics and nothing more; and here we again confuse a...