Lopez v. Abbott

• Decision Date: 12 September 2018
• Docket Number: Civil Action No. 2:16-CV-303
• Citation: 339 F.Supp.3d 589
• Parties: Lionel LOPEZ, et al, Plaintiffs, v. Greg ABBOTT, et al, Defendants.
• Court: U.S. District Court — Southern District of Texas

339 F.Supp.3d 589

Lionel LOPEZ, et al, Plaintiffs,

v.Greg ABBOTT, et al, Defendants.

Civil Action No. 2:16-CV-303

United States District Court, S.D. Texas, Corpus Christi Division.

Signed September 12, 2018

Brendan Downes, Ezra D. Rosenberg, Pro Hac Vice, Lawyers Committee for Civil Rights Under Law, Jon M. Greenbaum, Attorney at Law, Washington, DC, Debra D. O'Gorman, Neil A. Steiner, Negin Hadaghian, Siobhan Namazi, Pro Hac Vice, Dechert LLP, New York, NY, Lindsey Beth Cohan, Amy Lynne Rudd, Dechert LLP, Austin, TX, Martin Golando, Michael Patrick Moran, Garza Golando Moran, PLLC, Jose Garza, Texsa Riogrande Legal Aid, Rolando L. Rios, Attorney at Law, San Antonio, TX, for Plaintiffs.

Patrick K. Sweeten, Todd Lawrence Disher, Adam Nicholas Bitter, Office of the Attorney General, Austin, TX, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

NELVA GONZALES RAMOS, UNITED STATES DISTRICT JUDGE

Plaintiffs challenge statewide, at-large elections of all justices to the Supreme Court of Texas and judges to the Texas Court of Criminal Appeals under Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301. They allege that at-large voting has diluted the voting strength of registered voters who are Hispanic. To remedy this, they request that the Court order the imposition of single member districts to be drawn up, in the first instance, by the Texas legislature.

This action was tried to the bench from February 12 to 15, 2018. For the reasons set out below, the Court holds that three of the individual Plaintiffs and Plaintiff La Unión Del Pueblo Entero (LUPE) have standing. The Court holds that Plaintiffs have satisfied the three preconditions set forth in Thornburg v. Gingles , 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). However, under the totality of the circumstances test, they have failed to satisfy their burden of demonstrating that the lack of electoral success by Hispanic-preferred candidates for high judicial office is on account of race rather than other factors, including partisanship. Thus, they have not demonstrated a Section 2 violation and they are not entitled to relief.

STANDING

The Court begins by addressing whether Plaintiffs have standing to bring their suit. A plaintiff seeking to establish Article III standing must show "that he ‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’ " Gill v. Whitford , ––– U.S. ––––, 138 S.Ct. 1916, 1929, 201 L.Ed.2d 313 (2018) (quoting Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) ). The injury in fact must involve the " ‘invasion of a legally protected interest’ that is ‘concrete and particularized,’ i.e. , which ‘affect[s] the plaintiff in a personal and individual way.’ " Id. (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 & n.1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ) (alterations in original).

Individual Plaintiffs. Beginning with the seven individual Plaintiffs,¹ it is settled that "voters who allege facts showing disadvantage to themselves as individuals have standing to sue." Baker v. Carr , 369 U.S. 186, 206, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Here, three of the Plaintiffs—Isabel Araiza, Lena Lorraine Lozano Solis, and Carmen Rodriguez—testified that they are of Hispanic descent and that they vote regularly. They also all reside in parts of Texas that are within the proposed Hispanic-majority districts under Plaintiffs' illustrative redistricting schemes. Each of these Plaintiffs has therefore demonstrated an injury-in-fact, traceable to Texas's method of selecting high-court justices and judges, which may be remedied through this litigation. This is sufficient to establish standing.

The same cannot be said for the four Plaintiffs who did not testify,² as "[t]he facts necessary to establish standing ... must not only be alleged at the pleading stage, but also proved at trial." See Gill , 138 S.Ct. at 1931. No such evidence was presented as to these Plaintiffs. Plaintiffs cite Crawford v. Marion County Election Board , 553 U.S. 181, 189 n.7, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), for the proposition that the court need not examine whether all plaintiffs have standing so long as one plaintiff demonstrates standing. Crawford , however, was decided on summary judgment, where it makes sense to proceed to overarching questions of liability after determining that any single plaintiff can establish standing. Here, the burden at trial was on each Plaintiff to demonstrate his or her actual injury in fact. That burden was not met for the non-testifying Plaintiffs, who for that reason are dismissed.

LUPE. Also joining as a Plaintiff is the organization LUPE. Founded by César Chávez and Dolores Huerta in 1989 as a means to improve the lives of farmworkers, LUPE is a non-profit, non-partisan organization of more than 7,000 members, many of whom are Hispanic voters residing in Texas.

A three-part test is used to determine whether an organization such as LUPE may establish standing. Under that test, an organization "has standing to bring suit on behalf of its members when [1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization's purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

That test is met. According to testimony from LUPE executive director Juanita Valdez-Cox, LUPE's members include voters who reside in the heavily Hispanic areas of South and West Texas where the alleged dilutive effects of statewide judicial elections are felt most keenly. The interests at stake are also germane to LUPE's mission of promoting political engagement among its members, which LUPE furthers by encouraging voter registration and hosting events at which candidates for elected office, including judicial office, are invited to appear. Finally, the nature of the requested relief does not require every LUPE member to participate in the case.

For these reasons, LUPE and Plaintiffs Isabel Araiza, Lena Lorraine Lozano Solis, and Carmen Rodriguez have standing. The Court turns next to the merits of their claims.

STANDARD OF REVIEW

Recurring throughout this case are incorrect assertions—from both sides—as to the parties' relative burdens of proof. At the heart of the confusion are two issues: (1) a failure to separate the different purposes of, and properly apply, the Gingles preconditions analysis and the Gingles totality of circumstances test; and (2) a loose extrapolation of Fifth Circuit opinions, LULAC³ and Teague⁴ , beyond their respective holdings. The Court has examined Gingles and its progeny at some length and will adjudicate this case pursuant to the untangled burdens of proof described below. The Court will further interpret the holdings in LULAC and Teague in the context of their respective factual records.

I. Burden of Proof on Plaintiffs' Claims

Plaintiffs' entitlement to Section 2 relief—as it applies to this case—requires showing vote dilution on account of race. Vote dilution is a question of fact subject to the clearly-erroneous appellate standard of review of Federal Rule of Civil Procedure 52(a). Gingles , 478 U.S. at 78, 106 S.Ct. 2752 ; Teague , 92 F.3d at 287. The evidence relevant to its determination "must be made over time and over the course of many elections. How many elections must be studied to make this determination depends on the particular circumstances of the locale." Teague , 92 F.3d at 288-89 (citing Gingles , 478 U.S. at 57 n.25, 106 S.Ct. 2752 ). The factors to be considered in a racially-correlated vote dilution case based on the use of a multimember district are well-established and undisputed. They are derived from Gingles , 478 U.S. at 50–51, 106 S.Ct. 2752, which sets out three preconditions and a test based upon the totality of the circumstances.

A. The Gingles Preconditions

Plaintiffs must first "offer evidence of the circumstances of the local political landscape—evidence demonstrating that ‘its members have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice.’ " Magnolia Bar Ass'n, Inc. v. Lee , 994 F.2d 1143, 1146 (5th Cir. 1993) (quoting Section 2). The Supreme Court set out the three preconditions for proving vote dilution as follows:

• "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 , 478 U.S. at 50-51, 106 S.Ct. 2752 (citations omitted). While the preconditions are not applied in isolation, plaintiffs must prove each of them by a preponderance of the evidence. Magnolia , 994 F.2d at 1146.

The First Circuit has summarized the function of the different elements of the Gingles inquiries. "The first two Gingles preconditions look to whether, putting the challenged practice, procedure, or structure to one side, minority voters within a given constituency have the potential to elect representatives of their choice." Uno v. City of Holyoke , 72 F.3d 973, 979 (1st Cir. 1995). "The third Gingles precondition ... addresses whether the challenged practice, procedure, or structure is the cause of the minority group's inability to mobilize its potential voting power and elect its preferred candidates." Id. at 980. "Proof of all three preconditions...