JENNIE SANCHEZ, ET AL., PETITIONERS V. WILLIAM BOND, ET AL.

   No. 89-353

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Brief For The United States As Amicus Curiae

   This brief is filed in response to the Court's invitation to the
Solicitor General to express the views of the United States.

            TABLE OF CONTENTS
   Statement
   Discussion
   Conclusion

                          QUESTION PRESENTED

   Whether the district court's determination, in a case arising under
Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973, that
petitioners failed to prove that the minority group was politically
cohesive and that the minority's candidates of choice were usually
defeated by the majority's bloc voting, was clearly erroneous.

                               STATEMENT

   Petitioners are Hispanic voters from Saguache County, Colorado.
They alleged that the at-large system of electing county commissioners
violated Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973.
/1/ After trial, the district court dismissed petitioners' complaint,
and the court of appeals affirmed.  Pet. App. 1-20.

   1. Saguache is a rural county of 3,000 square miles in central
Colorado.  Its population in 1980 was 3,935, of whom 41% (36% of the
voting age population) were Hispanic.  Pet. App. 2-3.  The Saguache
County Commission consists of three commissioners.  The commissioners
are chosen in staggered, partisan elections for terms of four years.
Elections for the commission are at-large, though there must be a
commissioner from each of the three residency districts.  Pet. App. 3;
 Tr. 271-272.  Hispanics, who are concentrated in the City of Center,
are sufficiently numerous to elect one commissioner if the county were
divided into three single-member districts.  Pet. App. 9, 28-29.

   Witnesses testified that the land in Saguache County is owned
principally by Anglos and worked by Hispanics.  In the past, Anglos
and Hispanics lived, went to school, and worshiped separately.  Tr.
29-37.  Many economic, educational, and political issues continue to
separate the Anglos in the county from the Hispanic community.  Tr.
47-48, 136-156.  Petitioners' expert, Dr. Robert Brischetto, testified
that a disproportionate number of the county's Hispanics live below
the poverty line, have little education, and are unemployed.  He
attributed these effects to past discrimination.  Tr. 299-305.

   The Democratic Party is the county's plurality party, accounting
for roughly 45% of the registered voters.  Half of the remainder are
registered Republicans and half Independents.  Pet. App. 28;  DX F
(Ellis Report), chart "Data-2".  About 75% of the registered Hispanic
voters are Democrats, and they constitute 57% of all registered
Democrats in the county.  Tr. 367, 389, 494-495.

   Hispanics have lost every contested general election for county
office and state legislature that they have entered since 1972,
including three for the County Commission.  PXs 9, 11, 34.  On the
other hand, some of these elections have been close, and Hispanics
have won some uncontested elections.  In 1986, Anglo candidate Freel
won election to the County Commission with 22 votes more than Hispanic
candidate Archuleta.  PX 34.  The 1982 contest between Abeyta and Hall
for the Commission seat was also fairly close, Hall receiving 53 votes
more than Hispanic candidate Abeyta.  Ibid.  Two Hispanics succeeded
in uncontested races for county sheriff, one of them (Barela) at some
time before 1972 (Tr. 47) and the other (Chavez) in 1974.  Tr. 21;  PX
34.  In addition, there was testimony that, prior to 1972, an
Hispanic, Gloria Belluni, was elected to two four-year terms as county
clerk and recorder.  Tr. 20-21, 79.  The record is unclear whether Ms.
Belluni was opposed or unopposed.

   Petitioners' expert, Dr. Brischetto, analyzed ten county-wide
elections between 1976 and 1986 (three of them Democratic primaries)
in which Hispanics ran head-to-head against Anglo candidates.  In
every instance but one the voting was severely polarized by ethnicity
and the Hispanic candidate lost (PX 14).  /2/ Hispanic support for
Hispanic candidates ranged from 66% to virtually 100% while Anglo
support for Hispanic candidates ranged from 17% to 27%.  Hispanics
supported Hispanic candidates by an average of 87%, and Anglo support
for Hispanic candidates averaged 21%.  /3/ Based on this analysis, Dr.
Brischetto concluded that Anglos voted as a bloc in sufficiently large
numbers to defeat candidates preferred by Hispanic voters.  Tr.
399-400.

   Respondents' expert, Dr. Ted Ellis, testified that Hispanics in the
county vote as a bloc for the Democratic candidate regardless of
whether that candidate is Hispanic (Tr. 529), but that the Anglo
"cross-over" to the Democratic candidate is more significant when the
candidate is Anglo.  Tr. 533-536.  Since 1972, Anglo Democrats have
run for the County Commission in nine races and won four times.  In
addition, Democrats have been able to win in three of 14 contested
elections for other county offices (sheriff, district attorney) during
the same period (PXs 9, 11, 34), giving them an overall win rate of
seven out of 23 candidacies.

   Respondents' witness Gomez testified that, when the Democratic
Party nominated a candidate without a primary, the candidate had to
have at least the passive support of the party's dominant Hispanic
faction.  Tr. 659.  According to Gomez and respondents' witness Keith
Edwards, several of the successful Anglo Democrats were actively
supported by Hispanics.  Tr. 688-689, 748-749, 758-759.

   Furthermore, Mr. Gomez testified that the Hispanics in Saguache
County were not monolithic in their political views.  He ran against
Ulie Sanchez for the Democratic nomination for the County Commission
in 1976 and lost.  Tr. 684.  He testified that he and other Hispanics,
as well as Anglo Democrats, had refused to support every candidate
supported by the "Chicano" clique led by petitioner Jennie Sanchez.
Tr. 637-642, 654-660, 674-678.

   2. The district court, rendering an opinion from the bench, held
that petitioners had failed to prove a Section 2 violation.  Pet. App.
23-28.  Of the three major factors necessary to make a threshold case
under Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), the district
court found only one in petitioners' favor, i.e., that they were
sufficiently numerous and geographically compact to control one of
three single-member districts.  Pet. App. 28.  The district court was
unpersuaded that the plaintiffs had demonstrated either that Hispanics
were politically cohesive, or that Anglos voted sufficiently as a bloc
usually to defeat the candidates of choice of Hispanics.  Ibid.

   With respect to the political cohesion of the Hispanic community,
the district court credited the testimony of Mr. Gomez that Hispanics
were not politically cohesive but constituted a number of different
factions.  Pet. App. 25, 28.  The district court gave no other reason
for rejecting petitioners' statistical evidence of Hispanic
cohesiveness.

   The district court mentioned five factors in support of its finding
that petitioners had not proven that Anglos voted as a bloc in
sufficiently large numbers to defeat the choice of the Hispanic
population.  First, the court found that Anglo candidates Grant,
Allen, and Edwards -- all of whom the court found to have been
supported by Hispanics -- had been elected County Commissioner in
races against other Anglo candidates.  Pet. App. 24-25.  Second, the
court found that Hispanics had won county-wide races in which they had
run unopposed.  Pet. App. 24.  Third, the court found that, although a
Hispanic candidate had never defeated a white candidate for county
commissioner, Hispanic candidates Archuleta and Abeyta had come very
close -- within 22 and 53 votes, respectively -- to winning a seat.
Ibid.  Fourth, the court found that Hispanics "control" the county
Democratic party -- the plurality party in the county.  Pet. App. 24,
27.  Finally, the court found that Hispanics generally were
politically active in the town of Center -- where they constituted a
majority of the population -- and had won city government elections
there.  Pet. App. 27.  Thus, while the court agreed that Hispanics had
been the victims of discrimination in the past (Pet. App. 23), it did
not see that history as having any adverse impact upon the present
ability of Hispanics to participate in, and have an impact on, the
political process.

   3. The court of appeals affirmed the decision of the district
court.  Pet. App. 1-20.

   a. With respect to "cohesiveness," the court upheld the district
court's reliance on Gomez's anecdotal testimony and criticized
petitioners' statistical analysis.  The court recognized that
political cohesiveness exists "when there is a consistent relationship
between the race of the voter and the way in which the voter votes,"
regardless of the underlying causes of this correlation.  Pet. App.
10.  However, although statistical evidence concerning such a
correlation was held to be "highly relevant" (Pet. App. 11), the court
found nothing in Gingles "to suggest that a trial court is prohibited
from considering lay testimony in deciding whether a minority group is
politically cohesive" (Pet. App. 12).  Therefore, the court of appeals
held that it was not error for the district court to rest its finding
of lack of political cohesiveness on the lay testimony of Mr. Gomez.
Pet. App. 11.

   In any event, the court found fault with petitioners' statistical
analysis.  It noted that the district court found the analysis to be
"somewhat unreliable" because the statistical evidence did not include
an analysis of the Anglo-Anglo elections.  Pet. App. 17.  In addition,
the court of appeals noted that the district court might properly have
considered petitioners' statistical analysis to be "of limited value"
because only three of the ten elections analyzed were races for county
commissioner -- the body whose electoral machinery was at issue in the
suit.  Ibid.  Of the remaining seven races, one was a state-wide
primary election, four others were elections for state representative
to represent a five-county area, and the two remaining elections were
county-wide races.  /4/ Ibid.  In light of these perceived
difficulties with petitioners' statistical proof, the court concluded
that the district court's factual finding that petitioners failed to
prove political cohesiveness was not clearly erroneous.  Pet. App.
17-18.

   b. The court of appeals also sustained the district court's finding
that, under the totality of the circumstances, candidates of choice of
the Hispanic community for the County Commission are not usually
defeated by Anglo bloc voting.  To be sure, the court noted, "the lack
of success of Hispanic candidates is a strong factor tending to show
vote dilution." Pet. App. 19.  The court held, however, that the
district court's factual finding that there was no clear pattern of
Anglo bloc voting sufficient to defeat Hispanic-supported candidates
was not clearly erroneous.  A number of factors, the court indicated,
supported this conclusion.

   First, the court determined that the district court properly took
into consideration the election of unopposed Hispanic candidates in
determining that there was no clear pattern of defeat.  The court
recognized that Gingles had warned that claims ought not be foreclosed
on the basis of election of unopposed minority-supported candidates
alone.  But because in this case "(t)he election of unopposed
Hispanics was only one of several factors leading to the (district)
court's findings on vote dilution," the district court had not erred.
Pet. App. 13.

   Second, the court of appeals adverted to the district court's
finding that the two extremely close elections for county commissioner
in which Hispanic candidates were defeated by Anglo candidates
"indicated to the (district) court that Hispanics have the ability to
elect commissioners under the at-large system currently in use in the
county." Pet. App. 9.

   Third, the court of appeals found that Anglo-Anglo elections too
can be legitimately counted among the "totality of the circumstances"
in determining whether a minority group can elect candidates of its
choice.  Pet. App. 15.  The court recognized that "the success of
certain Anglo candidates played a significant part in the (district)
court's finding that vote dilution had not occurred." Pet. App. 14.
Reliance on this factor by the district court was within the district
court's discretion, "so long as one of the Anglo candidates can be
considered a preferred candidate of the minority group." Pet. App.
15-16.  And, on that point, the court of appeals upheld the district
court's finding that one of the Anglo candidates in each of the three
Anglo-Anglo elections was indeed the choice of the Hispanic voters.
Pet. App. 18.

                              DISCUSSION

   The opinions below are somewhat opaque, and it is therefore
difficult to determine the extent to which the holdings in this case
may have general applicability sufficient to warrant further review.
The opinion of the court of appeals appears generally to state correct
legal principles in no conflict with the decisions of this or any
other court.  The court's application of those principles, on the
other hand, is more problematic.  However, given the variety of
factors on which the court relied in affirming the district court's
judgment -- and the clearly erroneous standard under which the
district court's factual findings are to be reviewed -- it is not
clear that any errors the court may have committed in applying the law
to the facts of this case would have altered the result.  On balance,
the decision of the court of appeals appears not to be of sufficient
breadth or importance to warrant further review.

   1. In Gingles, this Court explained that "cohesiveness" of the
minority group pertains to its voting behavior.  Unless the minority
group votes as a bloc, "it cannot be said that the (at-large)
electoral structure thwarts distinctive minority group interests." 478
U.S. at 51.  Conversely, a minority group will not benefit as a group
from being the majority in a single-member district if its vote is
highly fragmented.  The determination of "cohesiveness," therefore,
cannot be made apart from the analysis of racial bloc voting.  See,
e.g., Gomez v. City of Watsonville, 863 F.2d 1407, 1416 (9th Cir.
1988) ("socioeconomic disparities and differences of political opinion
within (the minority) community * * * are only relevant to the extent
that they reflect differences in voting behavior"), cert. denied, 109
S. Ct. 1534 (1989);  Campos v. City of Baytown, 840 F.2d 1240, 1244
(5th Cir. 1988) (determination of cohesiveness "is not an inquiry to
be made prior to and apart from a study of polarized voting, * * *
because the central focus is upon voting patterns"), cert. denied, 109
S. Ct. 3213 (1989).

   a. The Tenth Circuit understood that the inquiry into political
cohesiveness is an inquiry into "whether in fact the minority votes as
a bloc." Pet. App. 10.  The court recognized that statistical evidence
can be "highly relevant" to the issue of political cohesiveness,
although a district court may also reasonably rely on lay testimony in
appropriate circumstances.  The court recognized that the district
court held that in this case "political party plays a very strong role
in the results," but also noted that there was "no indication that the
(district) court found plaintiffs' statistical evidence * * * to be
insignificant because it could be explained by party affiliation."
Pet. App. 11.  In all of these respects, the court appears to have
correctly stated the legal principles guiding the inquiry into
political cohesiveness.

   The court of appeals affirmed the district court's determination of
lack of political cohesiveness based on a combination of two factors:
lay testimony, which the district court found to be credible, that
political cohesiveness was lacking, and weaknesses in petitioners'
statistical showing.  The correctness of the court's decision in this
respect hinges on the strength of petitioners' statistical evidence.
In the presence of an unrebutted statistical showing that the minority
group in fact votes as a bloc, it is difficult to see how anecdotal
testimony of the sort at issue here from a single lay witness could be
sufficient to support a finding of lack of political cohesiveness.  If
petitioners' statistical evidence were weak, however, the district
court's reliance on Mr. Gomez's testimony concerning factionalism in
the Hispanic community, see Pet. App. 11, 17, may have been
appropriate.

   b. The court of appeals suggested that the district court properly
gave weight to the lay testimony because petitioners' statistical
evidence on cohesiveness ignored (1) elections in which Anglo
candidates were sponsored by Hispanics and (2) included only a small
sample of three elections for county commissioner.  As an analysis of
petitioners' evidence in this particular case, the opinion of the
court of appeals may well be mistaken.

   With respect to the elections in which Anglo candidates were
sponsored by Hispanics, there was nothing in the record to indicate
that Hispanics do not vote as a bloc in Anglo-Anglo elections, just as
they do in Hispanic-Anglo elections.  Indeed, the findings of both
courts that three successful Anglo candidates were candidates of
choice of the Hispanic community strongly suggests that Hispanics do
vote as a bloc in Anglo-Anglo elections.  Moreover, even if analysis
of Anglo-Anglo elections showed a more fragmented Hispanic vote, it
would not be at all clear that a conclusion of lack of political
cohesiveness would follow.  For the conclusion might as well be drawn
that in such elections -- unlike in elections pitting Hispanic
candidates against Anglo candidates -- the Hispanic community was
simply offered no candidate of choice.  See p. 14, infra.  Thus,
omission of statistics on Anglo-Anglo elections should not have been
regarded as a determinative factor in the analysis of political
cohesiveness in this case.  That leaves the court of appeals'
conclusion that petitioners' sample of three elections for county
commissioner was too small to produce reliable results.

   Petitioners presented statistical analyses of ten elections in this
case.  See Pet. 13-15.  The court of appeals stated that the district
court may have properly considered evidence of seven of the ten
elections, however, to be of "limited value" (Pet. App. 17), because
they were elections for offices other than county commissioner and
therefore not conducted under the "standard, practice, or procedure"
(42 U.S.C. 1973(a)) being challenged in this case.

   Results of "exogenous" elections -- elections held for offices
other than the one whose electoral machinery is being challenged --
should not automatically be discounted.  Because the major issue in
determining political cohesiveness is the voting behavior of the
minority community, there is no reason to ignore an election that
reflects such voting behavior.  The fact that five of the elections
analyzed here were conducted in political units larger than the county
does not automatically decrease the significance of the evidence
relating to those five elections, because the county's vote was
isolated and analyzed separately.  See note 4, supra.  Absent any
argument that the voting behavior of the minority community in the
larger elections was different from that in elections for county
office, such voting behavior -- along with voting behavior in the two
exogenous county-wide general and primary elections -- should have
been considered.  See Citizens for a Better Gretna v. City of Gretna,
834 F.2d 496, 502-503 (5th Cir. 1987), cert. denied, 109 S. Ct. 3213
(1989);  Westwego Citizens for Better Gov't v. City of Westwego, 872
F.2d 1201, 1208-1210 (5th Cir. 1989);  Solomon v. Liberty County, 865
F.2d 1566, 1575-1578 & n.15 (11th Cir. 1988).

   The court of appeals did not state that the district court could
properly have ignored the exogenous elections, but rather that the
trial court "may have considered these elections to be of limited
value" (Pet. App. 17).  Although, for the reasons just discussed,
these elections were of more than "limited value," whether such
discounting was appropriate on the particular facts of this case does
not warrant further review.  The courts of appeals are generally in
agreement that exogenous elections may be sources of important
evidence in Section 2 cases, although the weight to be given such
evidence may vary with the facts of each case.  The Tenth Circuit's
decision in this case, which expressly states only that the district
court may have considered the exogenous elections to be of "limited
value," does not depart so clearly from the consensus of the courts of
appeals on the correct legal standards that it creates a conflict
among the circuits requiring resolution by this Court.  /5/

   2. The court of appeals' holding that petitioners had not shown a
pattern of racial polarization and Anglo bloc voting sufficiently
large usually to defeat the Hispanic-preferred candidate raises more
complex issues.  There were two primary bases for this holding.

   a. The court of appeals appears to have regarded the fact that
there were unopposed Hispanic candidates as one factor demonstrating
the absence of Anglo bloc voting usually sufficient to lead to defeat
of the Hispanic-preferred candidate.  The court did take note of the
warning in Gingles that undue evidentiary weight ought not be given to
elections characterized by "special circumstances, such as the
minority candidate running unopposed." 478 U.S. at 51.  But, as the
court of appeals points out, "Gingles clearly does not establish a per
se rule against consideration of such evidence;  it does caution
against foreclosing claims on that basis alone." Pet. App. 13.  In
this case, this factor alone apparently was not used to foreclose
petitioners' claim (ibid.), since the court relied as well on the
results in several Anglo-Anglo elections, the influential role of
Hispanics in the plurality political party in Saguache County, and the
extremely narrow defeat of Hispanic candidates in two elections.
Thus, the court of appeals' limited consideration of unopposed
victories by Hispanic candidates appears not to depart from the
standards set out in Gingles or in decisions of any other court of
appeals.

   b. Both courts below relied in part on the results of three
Anglo-Anglo elections in which they found that the winning candidate
was supported by the Hispanic community to conclude that there was no
pattern of Anglo bloc voting sufficient to lead to usual defeat of the
Hispanic candidate of choice.  In Gingles, this Court was divided on
the general issue of the relevance of the race of the candidate in
Section 2 analysis.  Justice Brennan's opinion, joined by three other
Justices, concluded that "the race of the candidate per se is
irrelevant to racial bloc voting analysis." 478 U.S. at 67.  /6/
Justice White expressed the view that race would be relevant under
some circumstances, id. at 83.  Four other Justices stated that the
view that the race of the candidate is always irrelevant was contrary
to precedent and did not have to be decided in that case.  Id. at 101
(O'Connor, J., concurring in the judgment).  Since Gingles, the Court
has not had occasion to revisit this question.

   The issue of the relevance of the candidate's race arises, inter
alia, where the defendant has attempted to show that, although the
minority community has not been able to elect minority candidates, it
has achieved success because it has supported nonminority candidates
who won in elections in which they ran against other nonminority
candidates.  To foreclose a Section 2 claim simply because of such
victories by nonminority candidates would threaten to reduce Section 2
"to provid(ing) minority groups the ability to participate equally in
the electoral process and to have the opportunity to elect
representatives only if those candidates are white." East Jefferson
Coalition for Leadership & Development v. Parish of Jefferson, 691 F.
Supp. 991, 1001 (E.D. La. 1988).  On the other hand, just as the rule
cannot be that minorities may elect candidates of their choice so long
as those candidates are nonminority, so too it cannot be the rule that
only minority candidates can be the candidates of choice for minority
groups.

   The courts of appeals have generally recognized -- and the United
States has consistently argued -- that evidence concerning elections
in which no minority candidate ran is insufficient to rebut a clear
pattern of lack of electoral success in elections in which a minority
candidate was in the field.  E.g., Campos v. City of Baytown, 840 F.2d
1240, 1244-1245 (5th Cir. 1988), cert. denied, 109 S. Ct. 3213 (1989);
 Smith v. Clinton, 687 F. Supp. 1310, 1316-1317 (E.D. Ark.), aff'd,
109 S. Ct. 548 (1988).  Cf. Citizens for a Better Gretna v. City of
Gretna, 834 F.2d 496, 502-504 (5th Cir. 1987) ("That blacks also
support white candidates acceptable to the majority does not negate
instances in which white votes defeat a black preference."), cert.
denied, 109 S. Ct. 3213 (1989).

   There is, however, no direct conflict between the decision below
and the results in Baytown or Gretna.  Both courts below found that
the winning candidate in each of three Anglo-Anglo races received
considerable electoral and other support from the Hispanic community.
Pet. App. 18, 24.  Thus, the decision in this case does not
necessarily conflict with Baytown, where the Fifth Circuit based its
decision in part on the fact that it found "no evidence that any
Anglo-Anglo race * * * offered the voters the choice of a 'viable
minority candidate.'" 840 F.2d at 1245.  Nor does the decision
conflict with Gretna, where the elections actually at issue were races
for multiple seats in which black and white candidates ran.  Unlike
here, the question for the Gretna court was whether winning white
candidates could be considered candidates of choice of the minority
community when a black candidate with greater black support lost.

   Nor can it be concluded that the result in this case is at odds
with the district court decision in Smith.  The Smith court found that
the evidence concerning elections in which blacks ran against whites
was "so strong" that it could not be overcome even by evidence that
"white candidates preferred by black voters sometimes win in elections
involving only whites." 687 F. Supp. at 1317.  In contrast, the Tenth
Circuit found that the evidence of defeat of Hispanic candidates by
Anglo candidates was not strong in this case, noting in various places
in its opinion that, inter alia, two of the three general elections
for county commissioner analyzed by petitioners were quite close (with
the Hispanic candidate losing by 22 and 53 votes), that there was
evidence of Hispanic success in electing unopposed candidates, and
that Hispanics were the dominant force in the plurality political
party.

   In view of these factors, it cannot be said that the court used
evidence that Hispanic-supported Anglo candidates had defeated other
Anglo candidates in Anglo-Anglo elections to foreclose an otherwise
proven Section 2 claim.  The decision of the court of appeals is thus
generally in accord with the tacit acknowledgement of other courts
that evidence concerning elections in which no minority candidate ran
can be relevant in appropriate circumstances.  In any event, the Tenth
Circuit's decision could be read as departing from this consensus only
on the assumption that petitioners had shown a clear pattern of defeat
of Hispanic candidates by Anglo candidates.  Neither court below
believed that petitioners had succeeded in making such a showing.  The
question whether both courts below erred in this respect is uniquely
tied to the particular facts of this case, and does not warrant
review.  /7/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOHN R. DUNNE

      Assistant Attorney General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   JAMES P. TURNER

   ROGER CLEGG

      Deputy Assistants Attorney General

   JAMES A. FELDMAN

      Assistant to the Solicitor General

   JESSICA DUNSAY SILVER

   MIRIAM R. EISENSTEIN

      Attorneys

   APRIL 1990

   /1/ A violation of Section 2 "is established if, based on the
totality of circumstances, * * * members (of a racial or language
minority group) have less opportunity than other members of the
electorate to participate in the political process and to elect
representatives of their choice." 42 U.S.C. 1973.

   /2/ The exceptional election in this group was the 1982 Democratic
primary in which three candidates vied for the nomination for County
Commission, two of them Hispanic.  One of the Hispanics, Abeyta, won
the primary and went on to lose in the general election.  See Pet. 14.

   /3/ This calculation omits, as to the Anglo vote, the primary noted
in footnote 2.  In that one election, the cumulative Anglo vote for
the two Hispanic contenders amounted to 55%.  See Pet. 14.

   /4/ Specifically, the seven elections included one state-wide
Democratic primary race for university regent, three general elections
for state representative and one primary for state representative in a
five-county area that included Saguache County, one general election
for county treasurer, and one Democratic primary race for county
commissioner.  See Pet. 13-15.

   /5/ It should also be noted that, although the question of whether
the court of appeals erred in discounting evidence relating to the
exogenous elections may be considered to be fairly included within the
questions presented in the petition, see Sup. Ct. R. 14.1(a), it is
not in terms advanced by petitioners.

   /6/ The Court had noted earlier, however, that among the factors in
a Section 2 case is "the extent to which minority group members have
been elected to public office in the jurisdiction." 478 U.S. at 48
n.15 (internal quotation marks omitted).  Indeed, Section 2(b) itself
provides that "(t)he extent to which members of a protected class have
been elected to office in the State or political subdivision is one
circumstance which may be considered." 42 U.S.C. 1973(b).

   /7/ Respondents' argument that they cannot be sued to enjoin
continued use of the at-large system of electing county commissioners
-- even if the system violated the Voting Rights Act -- appears not to
be substantial.  Br. in Opp. 3-5.  The Voting Rights Act expressly
provides that no improper "standard, practice, or procedure shall be
imposed or applied by any State or political subdivision." 42 U.S.C.
1973(a) (emphasis added).  Respondents, who are plainly officers of a
"political subdivision," do not argue that they are not responsible
for "applying" the at-large voting system by administering elections
in the county.  Insofar as is revealed in the reported decisions,
virtually all of the cases challenging state-mandated local electoral
practices have been suits against local officials.  See, e.g., Rogers
v. Lodge, 458 U.S. 613 (1982);  City of Mobile v. Bolden, 446 U.S. 55,
58 (1980);  Kramer v. Union Free School Dist. No. 15, 395 U.S. 621
(1969);  Gomillion v. Lightfoot, 364 U.S. 339 (1960).  In the only
reported case in which the issue raised by respondents has been
squarely addressed, the Eleventh Circuit dismissed respondents'
argument in a footnote.  United States v. Dallas County Comm'n, 739
F.2d 1529, 1532 n.1 (11th Cir. 1984).  Cf. Ex parte Young, 209 U.S.
123 (1908).