Jones v. City of Lubbock

• Decision Date: 10 April 1984
• Docket Number: No. 83-1196,83-1196
• Citation: 730 F.2d 233
• Parties: Rev. Roy JONES, et al., Plaintiffs-Appellees, v. The CITY OF LUBBOCK, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 233

730 F.2d 233

Rev. Roy JONES, et al., Plaintiffs-Appellees, v. The CITY OF LUBBOCK, et al., Defendants-Appellants.

No. 83-1196.

United States Court of Appeals,

Fifth Circuit.

April 10, 1984.

Travis D. Shelton, T. Dale Jones, John C. Ross, Jr., City Atty., James P. Brewster, Asst. City Atty., Legal Dept., Lubbock, Tex., for City of Lubbock, et al.

William L. Garrett, Dallas, Tex., Rolando L. Rios, S.W. Voter Registration Ed. Project, San Antonio, Tex., Mark C. Hall, c/o John J. O'Shea, Albert Perez, Tomas Garza, Lubbock, Tex., for Roy Jones, et al.

Lane Arthur, Daniel H. Benson, School of Law, Tex. Tech. Univ., Lubbock, Tex., for Rose Wilson.

Appeal from the United States District Court for the Northern District of Texas, Halbert O. Woodward, Chief Judge.

On Suggestion for Rehearing En Banc

(Opinion March 5, 1984, 5 Cir., 1984, 727 F.2d 364)

Before REAVLEY, RANDALL, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Treating the suggestion for rehearing en banc as a petition for panel rehearing, it is ordered that the petition for panel rehearing is DENIED. No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.

PATRICK E. HIGGINBOTHAM, Circuit Judge, special concurrence:

I concur in the denial of the petition for rehearing but add a caution about the issue of polarized voting lest our decision be read as an endorsement of the techniques here used in its proof. Care must be taken in the factual development of the existence of polarized voting because whether polarized voting is present can pivot the legality of at-large voting districts. The inquiry is whether race or ethnicity was such a determinant of voting preference in the rejection of black or brown candidates by a white majority that the at-large district, with its components, denied minority voters effective voting opportunity. In answering the inquiry, there is a risk that a seemingly polarized voting pattern in fact is only the presence of mathematical correspondence of race to loss inevitable in such defeats of minority candidates. The point is that there will almost always be a raw correlation with race in any failing candidacy of a minority whose racial or ethnic group is as small a percentage of the total voting population as here. Yet, raw correspondence, even at high levels, must accommodate the legal principle that the amended Voting Rights Act does not legislate proportional representation. More complex regression study or multi-variate mathematical inquiry will often be essential to gauge the explanatory power of the variables necessarily present in a political race. Nor will math models always furnish an answer. A healthy dose of common sense and intuitive assessment remain powerful components to this critical factual inquiry. For example, a token candidacy of a minority unknown outside his minority voting area may attract little non-minority support and produce a high statistical correspondence of race to loss. Yet, one on the scene may know that race played little role at all. In sum, detailed findings are required to support any conclusions of polarized voting. These findings must make plain that they are supported by more than the inevitable by-product of a losing candidacy in a predominately white voting population. Failure to do so presents an unacceptable risk of requiring proportional representation, contrary to congressional will.

Because "polarized voting" was not so prominent in voting cases we have given it little attention, including the dicta of Nevett v. Sides, 571 F.2d 209, 223 n. 18 (5th Cir.1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980). The footnote discussion there is misleading; indeed, if read in an overly literal manner its validity is questionable. ¹

The proof in this case has given me concern. Little more has been shown than that the percentage of votes for minority candidates in any given precinct enjoyed a mathematical correspondence with the percentage of minorities living in the precinct. Further, according to the plaintiffs' expert, such a voting pattern proves polarized voting, which he defined as the tendency of members of a particular ethnic or racial group to vote in a similar manner and differently from other ethnic or racial groups.

As Judge Randall observes, at the first trial plaintiff's expert, Dr. Charles Johnson, testified that minority candidates received an average of 11% of the vote in predominantly anglo precincts compared to a 63% average in minority areas. Yet, such figures are inevitable in losing minority candidacies when the minority carries the minority voting areas. At the second trial, the evidence presented by plaintiff's expert, Dr. Robert Brischetto, was little more than a sophisticated version of the raw correspondence evidence presented at the first trial.

Although in its briefs on appeal the City relies almost completely on its assertion that the district court's finding of responsiveness undercut the statistical showing of polarized voting, the City at the second trial also disputed the statistical studies. The City's expert, Dr. Delbert A. Taebel, strongly...