Sanchez v. State of Colo.

• Decision Date: 30 September 1996
• Docket Number: No. 94-1471,94-1471
• Citation: 97 F.3d 1303
• Parties: Jennie SANCHEZ, Adeline Sanchez, Debra Casanova, Plaintiffs-Appellants, v. The STATE OF COLORADO; Vickie Buckley, in her official capacity as Secretary of State for the State of Colorado, Defendants-Appellees. The Pueblo Chicano Democratic Caucus, Colorado Hispanic Bar Association, Mexican American Legal Defense and Education Fund, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1303

97 F.3d 1303

Jennie SANCHEZ, Adeline Sanchez, Debra Casanova, Plaintiffs-Appellants, v. The STATE OF COLORADO; Vickie Buckley, in her official

capacity as Secretary of State for the State of

Colorado, Defendants-Appellees.

The Pueblo Chicano Democratic Caucus, Colorado Hispanic Bar

Association, Mexican American Legal Defense and

Education Fund, Amici Curiae.

No. 94-1471.

United States Court of Appeals, Tenth Circuit.

Sept. 30, 1996.

Rehearing Denied Nov. 29, 1996.

Gale T. Miller, Davis, Graham & Stubbs, L.L.C., Denver, CO, for Plaintiffs-Appellants.

Alesia M. McCloud-Chan, Assistant Attorney General (Gale A. Norton, Attorney General, and Maurice G. Knaizer, Deputy Attorney General, with her on the briefs), Denver, CO, for Defendants-Appellees.

Richard W. Daily, Powers Phillips, P.C., Denver, CO, for Amicus Curiae Pueblo Chicano Democratic Caucus.

Gilbert M. Roman, Roman & Benezra, L.L.C., Denver, CO, for Amicus Curiae Colorado Hispanic Bar Association.

Carmen Rumbaut and Anthony Chavez, San Antonio, TX, for Amicus Curiae Mexican American Legal Defense and Educational Fund.

Before PORFILIO and LOGAN, Circuit Judges; and O'CONNOR, District Judge. ¹

JOHN C. PORFILIO, Circuit Judge.

In 1986, the Supreme Court first construed amended § 2 of the Voting Rights Act of 1965 (VRA), Pub.L. No. 89-110, 79 Stat. 437, codified at 42 U.S.C. §§ 1973--1973%io, to conclude several North Carolina legislative districts impaired the opportunity of black voters "to participate in the political process and to elect representatives of their choice." Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); § 2(b); 42 U.S.C. § 1973(b). Thus having launched a decade of challenges to multi-member election districts and at-large election procedures, Gingles now presides over a new round of VRA lawsuits involving the configuration of single-member districts, the 1990 census having necessitated redrawing numerous state and congressional districts. In this case, plaintiffs, Jennie Sanchez, Adeline Sanchez, and Debra Casanova, challenged the reconfiguration of their state legislative district, Colorado House District 60 (HD 60), drawn after the 1990 census, contending the resulting single-member district did not provide Hispanic voters in south central Colorado a fair opportunity to elect candidates of their choice. However, the district court denied them declaratory and injunctive relief concluding the Gingles' quantum of proof was unmet. Sanchez v. State of Colo., 861 F.Supp. 1516 (D.Colo.1994). With the guidance of two recently decided Supreme Court cases, Bush v. Vera, --- U.S. ----, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996), and Shaw v. Hunt, --- U.S. ----, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (Shaw II ), ² and Gingles' governing principles, we conclude plaintiffs have established under the totality of circumstances the presently configured HD 60 unlawfully dilutes the voting strength of Hispanic voters in south central Colorado. We therefore reverse.

I. Background

Plaintiffs, Jennie Sanchez and Adeline Sanchez, are Hispanic residents and registered voters in Center, Colorado, located in Saguache County. Plaintiff, Debra Casanova, resides in the city of Alamosa, Colorado, in Alamosa County. Saguache and Alamosa along with Conejos, Costilla, Mineral, and Rio Grande Counties comprise the San Luis Valley (the Valley or SLV) in south central Colorado, a flatland whose western boundary is the San Juan Mountains. On its eastern boundary are the Sangre de Cristo Mountains, its peaks towering 14,000 feet, and the La Garita Mountains and Cochetopa Hills overlap to hem in its northern borders. Principally an agricultural area, the Valley encompasses a mosaic of range, pasture, and crop lands and boasts bumper potato harvests, ranking it fifth in potato production nationally. Water issues percolate through all of this economy, the Valley sitting upon one of the nation's largest aquifers, attracting populous urban areas in and out of Colorado which threaten to divert this vital resource to distant paper mills and suburban lawns.

The Valley embraces one of three of Colorado's largest native born Hispanic populations, its Hispanic residents tracing their history back to the original settlement of the Hispano Homeland which comprised extensive Mexican land grants in northern New Mexico and southern Colorado. ³ Some Hispanic families in the SLV date back to the 1800's when their ancestors first settled there. Although many of these early landowners were later dispossessed of their land, substantial numbers remained in the Valley, lured away to northern cities like Pueblo and Denver when the local agrarian economy failed to provide the wages city jobs offered. Presently, Pueblo and Denver support similarly large, native-born Hispanic populations. Indeed, Hispanics comprise the largest ethnic minority in Colorado, representing 12.5% of its total population. Colorado Vital Statistics 1990, p.18.

In the wake of the decennial federal census, the Colorado Reapportionment Commission (the Commission) was reconvened to redraw the boundaries of state senate and house legislative districts to reflect the 14% increase in the state's population from 2,889,735 to 3,294,394. Operating under Colorado Constitutional mandate ⁴ and federal law, the politically neutral Commission ⁵ prioritized the criteria governing their redistricting: first, the equal population of districts with no more than a 5% deviation between the largest and smallest to maintain the principle of one person, one vote; and, second, compliance with the VRA. "Of secondary importance," the Commission's Final Report listed, "are preservation of county boundaries, the preservation of municipal lines, and the formation of compact districts," while "a third level" criterion was the preservation of communities of interest. Of final "unofficial" importance is the preservation of politically competitive districts. Final Report of the Colorado Reapportionment Commission, April 1992, p. 4.

In preparation for redistricting, the Commission retained Election Data Services (EDS), a Washington, D.C.-based research and consulting firm which analyses election behavior, to examine state legislative races to determine "if legally significant racial bloc voting exists and to ascertain the percentage minority population necessary in a district for minority voters to have the opportunity to elect candidates of choice." In its first report, EDS identified two state districts with 40 and 50% Hispanic populations which appeared insufficient to elect minority-preferred candidates, the Weld County area (House Districts 50 and 51); and the southeast, south central part of the state (House Districts 43, 60, and 63). EDS concluded, based on preliminary evidence, "[i]t may be necessary to create districts that have higher concentrations of Hispanics in them in these two areas of the state." Id. at 6. Subsequently, the Commission requested EDS perform additional racial bloc voting analyses of local elections in each of the counties comprising the Valley except for Mineral County and the surrounding counties, Archuleta, Huerfano, Las Animas, and Prowers.

In its second report to the Commission, EDS observed voting in the Valley "appear[ed] to be racially polarized ... in almost every election contest examined in which a Hispanic candidate competed in 1988 and 1990." Because EDS found in countywide elections studied approximately 20% Anglos cross over to vote for the Hispanic preferred candidate, it recommended the State did not have to create super-majority districts to compensate for what otherwise would be completely polarized voting. Consequently, given the slightly lower turnout of minority voters and its finding Hispanic voting cohesiveness, EDS concluded, "[i]t is necessary to create districts that are more heavily Hispanic in the San Luis Valley than elsewhere in the state because of the degree of racially polarized voting found in this area of the state."

Before drafting the final plan, the Commission held hearings throughout the state, in particular, Alamosa, Pueblo, and Trinidad, south central Colorado cities which would be affected by a possible reconfiguration of HD 60. Typical of such localized public fora, a range of opinions voicing hometown and area concerns was aired: whether the Valley should be split; whether the urban interests of Trinidad and Pueblo differed from the Valley's agricultural concerns; and how reconfiguration would impact incumbent representatives to the state legislature. With little disagreement, SLV citizens urged the Commission not to split the Valley after publication of a preliminary redistricting plan proposed splitting the Valley to increase the Hispanic vote. Support from the SLV chapter of the Hispanic League ⁶ to keep the Valley in one district was, in fact, elicited by the SLV County Commissioner Association which, in return, publicly condemned racial bloc voting in the Valley and resolved to "establish policies that ensure that protected minorities have every opportunity to fully participate in the political process."

Nevertheless, the Valley encompasses only about 80% of the population necessary to comprise a district under Colorado law. ⁷ The decision then whether to go west or east, whether to include the city of Trinidad with its large Hispanic population, or to carve into part of Pueblo, 40% of whose population is Hispanic, confronted the Commission when it convened on four occasions to weigh the alternative districts proposed for the Valley. Despite the EDS data on racial bloc voting and recommendation to create an Hispanic majority district; the awareness of the lack of success of Hispanic candidates from the SLV seeking election to the state legislature; and the concern about VRA liability, the Commission ultimately adopted the alternative which neither split the Valley nor touched Trinidad or Pueblo, preserving the incumbents'...