1 United States Court of Appeals,

Fifth Circuit.

No. 94-60526.

Abel ALONZO, et al., Plaintiffs-Appellants,

v.

CITY OF CORPUS CHRISTI, a Texas Jurisdiction, et al., DefendantsAppellees.

Nov. 10, 1995.

Appeal from the United States District Co urt for the Southern

District of Texas.

Before KING, DAVIS and SMITH, Circuit Judges.

PER CURIAM:

The plaintiffs, Hispanic citizens of Corpus Christi, Texas and

the League of United Latin American Citizens, challenge the

district court's determination that this case was properly removed

to federal court and further assert that the district court erred

in finding that they failed to show that the current election

process for Corpus Christi City officials violates the Texas ERA or

the Voting Rights Act. We affirm.

I. FACTS

Prior to 1982, all members of the Corpus Christi City Council

were elected in at-large elections. In Alonzo v. Jones, C.A. No.

C-81-227 (S.D.Tex. Feb. 3, 1983), ( Alonzo I ) the plaintiffs

successfully challenged this method of electing city council

members as discriminatory against M exican Americans. The court

entered a consent decree ordering Corpus Christi (the City) to

conduct elections under the so-called 5-3-1 sy stem currently in1 Section 1443 provides:

1443 Civil rights cases

Any of the following civil actions or criminal

prosecutions, commenced in a State court may be removed

by the defendant to the district court of the United

States for the district and division embracing the

place wherein it is pending:

(2) For any act under color of authority derived from

any law providing for equal rights, or for refusing to

do any act on the ground that it would be inconsistent

with such law.

2 place. Under the 5-3-1 system, five members of the city council

are elected from single member districts, three are elected at

large and the mayor is elected at large. The A lonzo I court

declared that this system would "insure to Plaintiffs and to the

class they represent an equal opportunity with other members of the

electorate to participate in the political process and to elect

city councilmen of their choice." Id.

In 1991, the plaintiffs filed this suit in Texas State

District Court challenging the apportionment of the single member

districts and the overall composition of the 5-3-1 election system

under the Texas ERA. The City removed this suit to federal court

on the ground that a st ate court judgment in favor of the

plaintiffs would conflict with the federal court's consent decree

in Alonzo I.

II. DISCUSSION

A. Removal

The district court held that this case was properly removed

under the "refusal clause" of 28 U.S.C. § 1443(2). 1 The "refusal28 U.S.C.A. § 1443 (West 1994) (emphasis added).

3 clause" allows state officials to remove civil rights actions

against them to federal court when they demonstrate:

a colorable conflict between state and federal law leading to

[their] refusal to follow plaintiff's interpretation of state

law because of a good faith belief that to do so would violate

federal law.

White v. Wel lington, 627 F.2d 582, 587 (2d Cir.1980) (quotation

omitted). If no colorable conflict between state and federal law

exists then removal is improper. N ews-Texan Inc. v. City of

Garland, Texas, 814 F.2d 216, 218 (5th Cir.1987) (affirming remand

to state court on the ground that city's assertion of conflict was

patently invalid).

In this case, the district court found that the City alleged

a colorable conflict between the consent decree from Alonzo I which

mandates the 5-3-1 system and the Texas ERA which, according to the

plaintiffs' interpretation, re quires the City to hold elections

unde r some other system. The district court noted that if this

case we re decided by the state court in favor of the plaintiffs,

the City would be in the "intolerable position" of having to choose

which of the conflicting court orders to follow in upholding its

residents' civil rights.

We agree. The 5-3-1 system was implemented under federal

court supervision for the express purpose of guaranteeing "Hispanic

residents of the City of Corpus Christi, Texas equal access to the

political procedures leading to nomination or election of City

Council members and Mayor and an equal opportunity with other2 Neither party argued before the district court that Shaw v.

Reno should inform the court's analysis. See Shaw v. Reno,

--- U.S. ----, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (race-based

4 members of the electorate to participate in the political process

and to elect representatives of their choice." A lonzo I, C.A. No.

C-81-227 (S.D.Tex. Feb. 3, 1983). Any challenge of the City's use

of this system in its elections necessarily implicates the rights

of all voters in Corpus C hristi and could change the balance of

rights that the federal court found required the 5-3-1 system.

This presents a c olorable conflict between state and federal law

sufficient to justify removal under § 1443(2).

B. ERA and the Voting Rights Act.

The district court viewe d the plaintiffs' evidence in the

totality of the circumstances and held that it failed to establish

that the 5-3-1 plan violates the Voting Rights Act or the Texas

ERA. Plaintiffs' allegations of discrimination were based on the

relatively few Mexican-American candidates who have been elected to

City positions. However, the district court did not err in

concluding that these ele ction results are better explained by

factors other than discrimination such as low voter turnout among

Mexican-Americans and the fact that in many of the elections, the

first choice of Mexican-American voters was not the MexicanAmerican candidate. Indeed, the City produced evidence that the

first choice of Mexican-American voters is often elected. The fact

that this candidate is not also a Mexican-American does not lead

inexorably to the conclusion that the City's system of electing

officials is discriminatory. 2redistricting subject to strict scrutiny). See also Miller v.

Johnson, --- U.S. ----, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)

(decided after the district court's judgment in this case;

holding that an allegation that race was the dominant reason for

drawing district lines was sufficient to require strict scrutiny

analysis). Because we affirm the district court, we need not

consider the possibility that these cases undermine plaintiffs'

claims.

5 For the reasons stated above, we AFFIRM the judgment of the

district court.

* * * * * *