Salas v. Southwest Texas Jr. College Dist., 91-8175

• Decision Date: 24 June 1992
• Docket Number: No. 91-8175,91-8175
• Citation: 964 F.2d 1542
• Parties: Jesus SALAS, Agustin Negrete and Benjamin Menchaca, Plaintiffs-Appellants, v. SOUTHWEST TEXAS JUNIOR COLLEGE DISTRICT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1542

964 F.2d 1542

Jesus SALAS, Agustin Negrete and Benjamin Menchaca Plaintiffs-Appellants, v. SOUTHWEST TEXAS JUNIOR COLLEGE DISTRICT, et al., Defendants-Appellees.

No. 91-8175.

United States Court of Appeals, Fifth Circuit.

June 24, 1992.

Rehearing and Rehearing En Banc

Denied Aug. 11, 1992.

George J. Korbel, Jose Garza, Texas Rural Legal Aid, Inc., San Antonio, Tex., for plaintiffs-appellants.

Claude Robert Heath, Ann C. Snell, Bickerstaff, Heath & Smiley, Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, DUHE and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

At issue in this Voting Rights Act § 2 case is whether the plaintiff Hispanic voters, who constitute a registered voter majority in the challenged at-large district, have met their burden of establishing that use of the at-large system, as opposed to single member districts, results in their "hav[ing] less opportunity than other members of the [district's] electorate to participate in the political process and to elect representatives of their choice". 42 U.S.C. § 1973(b); Thornburg v. Gingles, 478 U.S. 30, 65, 106 S.Ct. 2752, 2774, 92 L.Ed.2d 25 (1986). Because we hold that the district court's findings, including that white (Anglo) bloc voting is not legally significant, are not clearly erroneous, we AFFIRM; but we do so "on somewhat different reasoning than the district court employed." Monroe v. City of Woodville, 881 F.2d 1327, 1328 (5th Cir.1989), modified on reh'g, 897 F.2d 763 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 71, 112 L.Ed.2d 45 (1990).

I.

The challenged Southwest Texas Junior College District (District) covers all of Zavala and Uvalde counties and most of Real County, Texas, an area of roughly 3,400 square miles. Its Board has seven members elected at large. They serve six-year staggered terms and are elected to numbered posts. ¹ To be elected, a candidate must win a majority of the votes cast.

Hispanics comprise approximately 63% of the 36,000 (approximate) population of the three counties from which the District is drawn, and about 57% of the voting age population. ² And, according to the Texas Secretary of State's July 1990 Voter Registration Statistical Report, 53% of the registered voters in the three counties in which the District is located have Spanish surnames. Although there is some doubt about the accuracy of the Hispanic population and voting age population statistics, the parties do not dispute that Hispanics constitute a slight majority of the registered voters in the District. ³

Pursuant to the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq., Hispanic voters filed suit in March 1988 against the District and its trustees. A two-day trial was held in November 1990; and in late February 1991, the district court entered detailed, exacting, and comprehensive findings and conclusions. It found that the plaintiffs had not demonstrated legally significant white bloc voting and entered judgment for the defendants.

The district court made the following findings of fact, undisputed on appeal, concerning the District's election history (but, as discussed infra, these findings do not reflect the election of two Hispanics over incumbents in May 1992):

In the forty-four years of the Board's existence, there have been only twenty-three persons elected to the Board.

The evidence shows that only two Hispanics[, including Mr. Ritchie,] have ever been elected or appointed to the Board of Trustees. ⁴

For the first twenty-four years of the [District's] existence, all elections for the Board were uncontested.

In the past twelve years, there has been only one contested election for the Board. There was a contested election in 1984 ⁵ and there were eleven contested elections between 1970 and 1978. ⁶ Thus, in the history of the [District], there have been only thirteen contested elections and in each case the incumbent won.

In 1974 and 1976, an Anglo challenger ran against an Anglo incumbent. In both instances, the incumbent won.

In ten instances, Hispanic candidates ran against Anglo incumbents. In each case, the incumbent won. In one election, an Hispanic challenger ran against an Hispanic incumbent. The Hispanic incumbent won. ⁷

There has been only one runoff in the history of the District, in which the candidate, an Anglo, who won by a plurality in the first election, carried a majority in the second.

At trial, plaintiffs presented evidence of a strong correlation between race and voting in the District. It is undisputed here that cohesion exists among Hispanic voters, that elections are racially polarized, and that Anglos and Hispanics engage in bloc voting. Although there was some testimony that Anglos and Hispanics coalesce around distinct sets of issues, there was also testimony that the Board is not political and that campaigns are not issue-driven.

Plaintiffs offered evidence on practical inhibitors to Hispanic voting, including the effect of dual registration, "soft" voting rolls that include residents who have moved, ⁸ and the migrant population within the District. However, it was not established that these phenomena impact Hispanic voters more frequently than Anglos. ⁹ Although a procedure exists for removing the names of persons who have moved from the voting rolls, the parties dispute its effectiveness.

The plaintiffs contended in district court that the absence of migrant workers within the District at election time is a significant factor in Hispanic voters' inability to elect their preferred candidates. They introduced a report prepared in 1976--14 years before trial--by the Governor's Office of Migrant Affairs (GOMA), which lists, as of 1976, approximately 8,500 persons as migrants within the three-county area. ¹⁰ It stated that migrants typically leave the District in March, April, and May, and return in September, October, and early November.

The district court questioned the GOMA report's accuracy and probativeness, noting, for example, that it includes in its count all migrant family members, not just persons eligible to vote; the estimate of 8500 migrants includes those who did any migrant work in the five years before 1976 and who may have done such work for only one day; and, the GOMA report was based on data compiled from the 1970 census and predicted a stable migrant population for only five to ten years--that is, until 1981-86. ¹¹ Finally, as the district court noted, plaintiffs presented no evidence on the percentage of migrants registered to vote. Accordingly, it is unclear to what extent the absence of migrant workers from the District during an election means an absence of Hispanic registered voters. Plaintiffs' expert admitted: "I don't know that we have the hard data that says what the political behavior of migrants [is] in the studies that we have before us."

The plaintiffs also contended in district court that, although Hispanics represent a majority of registered voters in the District, more Anglos than Hispanics actually vote in District Board elections. They introduced a study, based on, among others, the 1984 and 1986 elections, which showed that more Anglo voters usually turned out and that their votes generally constituted the majority of those cast. The district court had "difficulty drawing any conclusions or inferences from" the study, however, because of errors it contained. ¹²

As discussed infra, the district court made findings on relevant factors such as no discrimination against Hispanics by the District, literacy and other education comparisons, and poverty level comparisons. In its conclusions of law, it applied Thornburg v. Gingles, albeit construing it too narrowly in some respects, as also discussed infra, and held, inter alia, that, "[w]here the protected group constitutes a majority of the registered voters in an election district, [then: (1) ] any Anglo bloc voting that might exist is not legally significant"; and (2) "the use of an at-large system is not dilutive". In so holding, it cited Perea v. Town of Pecos City, No. P-83-CA-22 (W.D.Tex. April 20, 1984) (pre-Gingles: discussed in note 14, infra ) and "dictum" from City of Woodville. It also held that "[t]o the extent that at-large systems are dilutive, it is because they submerge minority groups in a district dominated by the majority". In holding against the plaintiffs, the district court made the following "ultimate finding":

Although there is evidence that Hispanics have been underrepresented on the [District] Board, this Court is hesitant to intervene when those same Hispanics could readily solve this problem by simply running candidates and turning out to vote. While the Court is cognizant of the history of discrimination that has occurred in the area, the evidence presented at trial demonstrated that Hispanics have been able to get elected to offices in political units within the [District] when significant Anglo support was required. Finding that plaintiffs enjoy the same "opportunities [as] other members of the electorate to participate in the political process and to elect candidates of their choice," this Court enters judgment for defendants.

II.

The Hispanic voters contend that their registered voter majority status in the District does not immunize the District from a § 2 attack by that majority; and that, in ruling on a § 2 claim involving such factors, the district court must still consider the totality of circumstances, as opposed to denying relief solely because the plaintiffs cannot satisfy the three preconditions established in Gingles for § 2 cases challenging multimember districts. ¹³ Maintaining that the district court did not consider the totality of circumstances, the Hispanic voters contend that this case must be remanded for that purpose. Concomitantly, they charge the district court with failing to consider properly the evidence they presented, including...