REVISED APRIL 1, 1999

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 98-50227

_______________________

ROBERT VALDESPINO; BRENDA ROLON,

Plaintiffs-Appellants,

v.

ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT; ETHYL WAYNE, In her

official capacity as a member of the Board of Trustees of the

Alamo Heights Independent School District, San Antonio, Texas;

HARRY OREM, In his official capacity as a member of the Board of

Trustees of the Alamo Heights Independent School District, San

Antonio, Texas; STEPHEN P. ALLISON, In his official capacity as a

member of the Board of Trustees of the Alamo Heights Independent

School District, San Antonio, Texas; ANNE BALLANTYNE, In her

official capacity as a member of the Board of Trustees of the

Alamo Heights Independent School District, San Antonio, Texas;

THOMAS A. KINGMAN, In his official capacity as a member of the

Board of Trustees of the Alamo Heights Independent School

District, San Antonio, Texas; TERRI MUSSELMAN, In her official

capacity as a member of the Board of Trustees of the Alamo

Heights Independent School District, San Antonio, Texas; VICKI

SUMMERS, In her official capacity as a member of the Board of

Trustees of the Alamo Heights Independent School District, San

Antonio, Texas,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

March 11, 1999

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:1 The “demonstration district” i s the hypothetical singlemember district used by voting rights plaintiffs to demonstrate

that they can satisfy the first Gingles factor ( i.e.

, that their

grou p could constitute a majority in a single-member district).

Because the AHISD Board of Trustees has seven members, the

Plaintiffs must propose a demonstra tion district that would be

appropriat e if the at-large district were divided into seven

single-member districts.

2

The panel hereby withdraws its previous opinion and

substitutes the following:

Plaintiffs-Appellants claim that the at-large, by-place,

majority-vote elections for positions on the AHISD board of

trustees dilute their votes as Hispanics in violation of Section 2

of the Voting Rights Act of 1965. S ee 42 U.S.C. § 1973 (1994) (as

amended). The district court found that the Plaintiffs failed to

make out a vote dilution claim because they could not prove, under

the first Gingles threshold fac tor, that Hispanics are a

“sufficiently large and geographically compact [group] to

constitute a majority in a single-member district.” Thornburg v.

Gingles

, 478 U.S. 30, 50, 106 S. Ct. 2752, 2766 (1986). All the

issues on appeal invo lve proof of the first G ingles factor. In

particular, we reject the appellants’ contention that a “majority”

may be less tha n 50% of the citizen voting-age population. As

appellants’ other contentions fare no better, the judgment is

affirmed.

I

.

The School District con ceded at trial that the

Plaintiffs’ demonstration district 1 did comprise a majo rity of

Hispanic voti ng-age citizens according to 1990 census data. The3

School District, however, presented evidence that demographic

changes between the 1990 census and the 1997 trial had eliminated

that majority. AHISD is a small district in which a few strategic

land-use changes could and did significantly alter the district’s

population and neighborhood ethnic mix.

The School District’s evidence was presented in expert

testimony by Dr. Bill Rives, a demographer. Using the 1990 census

data as a baseline, Rives investigated post-1990 changes in the

school district’s housing stock to determine how the population had

changed in the Plaintiffs’ demonstration district and in the school

district at large. He testified that this methodology is “by far

the most popular demographic estimatio n technique” and is

especially appropriate for small areas.

Rives testified tha t two main trends combined to leave

the Plaintiffs’ demonstration single-member district

“underpopulated” in 1997. Since 1990, the demonstration district

had lost population (and the proportion of Hispanics in the

demonstration district declined) because a large apartment complex

had closed, been renovated, and reopened with a smaller number of

residents. Simultaneously, the population of the school district

at large had increased because of substantial new residential

development in the Lincoln Heights area (formerly a quarry and

cement plant), outside the demonstration district. As a result of

these changes, the Plaintiffs’ demonstration district no longer

approached one-seventh of the sch ool district’s population, and

thus could not be a proper single-member district.4 To correct for the underpopulation, Rives added territory

to the demonstration district. He added a contiguous area to the

north that had been included in some of the appellants’ prior

proposed demonstration districts. That northern area ran clear to

the edge of the school district and had just about the right number

of people to make a proper district. Furthermore, if it were not

added to the Plaintiffs’ district, the northern area would have to

be attached to a different district via a mile-long, narrow strip

o f unpopulated land. After the northern area was added to the

demonstration district population, Hispanics made up only 47.9% of

the voting-age citizen po pulation of the revised demonstration

district. Even if the demonstration district were then partially

depopulated (by 8.1% of the ideal population), this number would be

48.3%.

The general thrus t of Rives’s testimony had been clear

for some time before trial. For example, in a November 1996

affidavit attache d to the Defendants’ Response to Plaintiffs’

Motion fo r Partial Summary Judgment, Rives had explained that no

additions to the Plaintiffs’ proposed demonstration district could

sufficiently increase the Hispanic population because “[t]here are

no Hispanic-majority blocks that are adjacent to the proposed

district.” As the trial grew nearer, Rives updated his analysis,

redoing calculations based on more recent data from the apartment

complexes about the ethnicity of their residents. Ultimately, the

district court relied on Rives’s April 1997 Report.5 Much of the controversy in the case comes fro m Rives’s

August 1997 Report. In July 1997, updated rental rolls became

available from The Reserve, the large apartment complex within the

Plaintiffs’ demonstration d istrict that had been renovated and

reopened since the 1990 census. Rives then recalculated the

results in his April 1997 report after learning that The Reserve

had a slightly higher proportion of Hispanic residents than he had

earlier believed. But he also corrected a calculation error in his

April Report that had understated population growth in the school

district at large. Nevertheless, he concluded that the revised

data still did not yield a majority of Hispanics among voting-age

citizens within the Plaintiffs’ demonstration district. The August

Report was given to the Plaintiffs in early August 1997, not long

before the original trial setting. On August 22, however, the

district court reset the trial for Monday, September 15.

The Plaintiffs’ proffered expert witness, George Korbel,

claims that he was surprised by the conclusions in Rives’s August

Repor t. In response, Korbel scrambled the week before the

September trial date to con duct a door-to-door survey of the

residents in a small area to the south of the demonstration

district. He thought he could find there a high proportion of

Hispanic residents that could increase their demonstration

district’s population without diluting its Hispanic majority. At

4:21 P

. M

. on Friday, September 12, the Plaintiffs faxed to the

School District’s counsel a letter disclosing the existence of this6

new survey. At 4:13 P

. M

. on Saturday, September 13, the Plaintiffs

faxed the data from the survey.

On the Monday morning set for trial, Sept ember 15, the

School District filed a motion to strike the survey on grounds of

unfair surprise. The Plaintiffs’ lawyer told the district court

that their case in chief would rest entirely on 1990 census data,

but that if Rives testified for the School District that more

current data changed the Hispanic majority, then the Plain tiffs

might use the recent survey as rebuttal testimony. The district

court postponed until rebuttal any ruling on the motion to strike

and granted a motion in limine to prevent mention of the survey

during the case in chief or cross-examination. During the

Plaintiffs’ rebuttal, the School District renewed its objections to

the survey evidence, and the district court granted the motion to

strike. The Plaintiffs filed an offer of proof as to what their

expert witness would have testified about the survey.

In its findings of fact and conclusions of law, the

district court reiterated that Korbel’s survey constituted unfair

surprise and was excluded under Local Rule CV-16(e). To

accommodate the Plaintiffs’ objections to the lateness of Rives’s

August Report, the district court decided to rely solely upon the

April Report, which it found to be “thoroughly documented, [with]

a high degree of accuracy,” and “clear, cogent, and convincing

enough to override the presumptive correctness of the prior

decennial census.” Relying on Rives’s report, the district court

found that the Plaintiffs had not proved a demonstration district7

with less than 10% population deviation that included more than 50%

Hispanics among its voting-age citizens.

On appeal, the Plaintiffs present three arguments: that

they were not required to meet a “bright line” test of 50% Hispanic

voting-age citizens in the i r demonstration district; that the

School District’s evidence did not adequately overcome the presumed

accuracy of the 1990 census data; and that the district court

abused its discretion in excluding Korb e l’s proposed rebuttal

testimony about the last-minute, door-to-door survey.

II.

This court reviews district court “findings on the

Gingles threshold requirements for clear error.” L eague of United

Latin Am. Citizens v. Roscoe Indep. Sch. Dist. , 123 F.3d 843, 847

(5th Cir. 1997). See also Gingles , 478 U.S. at 77-79, 106 S. Ct.

at 2780-81. A district court’s refusal to allow an expert to

testify as a rebuttal witness may be overturned only for abuse of

discretion. S ee Tramonte v. Fibreboard Corp.

, 947 F.2d 762, 764

(5th Cir. 1991); Bradley v. United States , 866 F.2d 120, 124 (5th

Cir. 1989).

III

.

The Supreme Court has established a three-part threshold

inquiry when a racial or ethnic minority group asserts that its

distinctive votes have been submerged by the racial majority in a

multimember legislative district. The minority group must be able

to (1) “demonstrate that it is sufficiently large and

geographically compact to constitute a majority in a single-member2 In Voinovich v. Quilter

, the Supreme Cou rt did say, “the

Gingles factors cannot be applied mechanically and without regard

to the nature of the claim.” 507 U.S. 146, 158, 113 S. Ct. 1149,

1157 (1993). The Court did so, however, because it was adapting

the Gingles test, which was designed for challenges to multimember

districts, so that it could be used for challenges to the packing

of minority voters into existing single-member districts. Because

that changed context is not relevant to this case, which challenges

a multimember district, plaintiffs have no need to invoke nonmechanical application of the Gingles factors.

8 district,” (2) “show that it is politically cohesive,” and (3)

“demonstrate that the white majority votes sufficiently as a bloc

to enable it

-- in the absence of special cir cumstances ... --

usually to defeat the minority’s preferred candidate.” G ingl es

,

478 U.S. at 50-51, 106 S.Ct. at 2766-67.

The Plaintiffs here argue that the district court erred

in applyin g the first G ingles factor as a “bright line”

requirement. The Plaintiffs advert to the general purpose of the

Gingles factors, which is to provide a framework for showing that

there could be “a single-member district in which they could elect

candidates of their choice.” This is intended to support the

proposi tion that the Plaintiffs need only show generally their

electoral potential

. The Plaintiffs further argue that the Supreme

Cour t has disavowed “mechanical[]” application of the G ingles

factors. 2 And they complain that the district court did not

evaluate evidence of vote dilution under the totality of the

circumstances test.

All of these complaints are baseless. In reality, this

court has interpreted the Gingles factors as a bright line test.

Each factor must be proved before it is necessary to proceed to the9

totality of the circumstances test. We have repeatedly disposed of

vote dilution cases on the principle that “[f]ailure to establish

any one of these threshold requirements is fatal.” C ampos v. City

of Houston

, 113 F.3d 544, 547 (5th Cir. 1997); a ccord Rangel v.

Morales

, 8 F.3d 242, 249 (5th Cir. 1993); O verton v. City of

Austin

, 871 F.2d 529, 538 (5th Cir. 1989). S ee also Growe v.

Emison , 507 U.S. 25, 40-41, 113 S. Ct. 1075, 1084 (1993) (“Unless

[the three Gingles factors] are established, there neither has been

a wrong nor can be a remedy.”).

Furthermore, contrary to the Plaintiffs’ suggestion, this

court has required vote dilution claimants to prove that their

minor ity group exceeds 50% of the relevant population in the

demonstration distric t. In G ingles

, the Supreme Court required

plaintiffs to demonstrate “a majority.” 478 U.S. at 50, 106 S. Ct.

at 2766. Both of the Fifth Circuit cases cited by the Plaintiffs

assumed t hat 50% was the threshold for “majority” and simply

addressed what evidence could be used to prove that the 50%

threshold was met. In Brewer v. Ham , the court acknowledged that

a super-majority of black residents could be used to prove that

blacks constituted a majority of v oting-age residents. S ee 876

F.2d 448, 452 (5th Cir. 1989) (citing cases with raw supermajorities of 65.9%, 71.5%, and higher). In W estwego II

, this

court repeated Brewer ’s holding and expanded on it in a footnote.

The f ootnote, much cited by the Plaintiffs, explained that those

plaintiffs “unable to produce hard data” on voting-age population

because of the way census data are collected and reported would be3 See Johnson v. De Grandy

, 512 U.S. 997, 1008-09, 114 S. Ct.

2647, 2656-57 (1994); Growe v. Emison

, 507 U.S. 25, 38 n.4, 113 S.

Ct. 1075, 1083 n.4 (1993).

4 See Negron v. City of Miami Beach

, 113 F.3d 1563 (11th Cir.

1997) (using citizen voting-age population for first G ingle s

factor); Romero v. City of Pomona

, 883 F.2d 1418 (9t h Cir. 1989)

(same), overruled in part on other grounds by Townshend v. Holman

Consulting Corp.

, 914 F.2d 1136, 1141 (9th Cir. 1990). C f. Barnett

v. City of Chicago

, 141 F.3d 699, 704 (7th Cir. 1998) (Posner,

C.J.) (using citizen voting-age population to determine

proportionality f or Section 2 challenge to gerrymandering of

singl e-member districts), c ert. denied sub nom. Bialczak v.

Barnett , 118 S. Ct. 2372 (1998).

10 able to submit “other probative evidence” to prove voting-age

population. S ee Westwego Citizens for Better Gov’t v. City of

Westwego

, 906 F.2d 1042, 1045 n. 3 (5th Cir. 1990). In context,

Westwego II ’s statements did not alter what must be proved, only

what can be used to prove it. The Plaintiffs still must meet their

burden of proving that Hispanics constitute more than 50% of the

relevant population in their demonstration district.

Finally, this court has already determined what factors

limit the relevant population in the district: voting-age and

citizenship. This was made clear in C ampos v. City of Houston

, 113

F.3d 544, 548 (5th Cir. 1997) (courts “must consider the citizen

voting-age population” in evaluating the first G ingles factor).

See also Perez v. Pas adena Indep. Sch. Dist. , 165 F.3d 368, 372

(5th Cir. 1999). Given that the Supreme Court has avoided the

issue of what population to use for the first Gingles factor, 3 and

that other circuits have used the same approach as C ampos

, 4 the

district court used the correct legal test here.5 The cavil is that Plaintiffs attempt to articulate a twostep test: “The decennial census is controlling unless there exists

‘clear, cogent and convincing evidence’ that the decennial figures

are no longer valid and that other figures are valid.” For this

proposition, however, they cite only Garza v. County of Los

Angeles

, 756 F. Supp. 1298, 1345 (C.D. Cal. 1990). In fact, the

Garza court specifically rejected the notion of a two-step test:

17. In order to overcome the presumption in favor of

the 1980 census data, plaintiffs need not demonstrate

that the census was inaccurate.

18. It is sufficient to conclude that there has been

significant demographic changes [ sic ] since the decennial

census and that there exist[] post-decennial population

data that more accurately reflec t [] evidence of the

current demographic conditions.

Id.

11 IV.

In this case, evaluating the district court’s application

of that test involves two questions: w hether the School Board’s

evidence was adequate to counter the Plaintiffs’ census data, and

whether the district court abused its discretion in excluding the

Plaintiffs’ proposed rebuttal evidence.

A.

Except for a cavil, the parties a nd the district court

essentially agree about what standard should be required to

overcome census data. 5 As the district court summarized it:

[C]ensus figures are presumed accurate until proven

otherwise. Proof of changed figures must be thoroughly

documented, have a high degree of accuracy, and be clear,6 The only Supreme Court authority on this matter is indirect.

See Karcher v. Daggett

, 462 U.S. 725, 732 n.4, 103 S. Ct. 2653,

2659 n.4 (1983) (in reapportionment, a state cannot “correct”

census figures “in a haphazard, inconsistent, or conjectural

manner”); Kirkpatrick v. Preisler

, 394 U.S. 526, 535, 89 S. Ct.

1225, 1231 (1969) (a state can consider post-census population

shifts in redistricting if its findings are “thoroughly documented

and applied throughout the sta te in a systematic, not an a d hoc

, manner”). The Ninth Circuit refused to apply the Seventh Circuit’s

“high standard” of “clear and convincing” evidence “in a case where

intentional discrimination has been proved, and the data is merely

to be used in fashioning a remedy.” G arza v. County of Los

Angeles , 918 F.2d 763, 773 n. 3 (9th Cir. 1990).

12 cogent and convincing to override the presumptive

correctness of the prior decennial census.

This standard appears to be an elaboration on one used by the

Seventh Circuit. S ee McNeil v. Springfield Park Dist.

, 851 F.2d

937, 946 (7th Cir. 1988). Two Fifth Circuit cases are relevant. 6

The first is Westwego II

, which, as mentioned above, opened the

door to the use of non-census data when ce nsus data are not

sufficiently probative of the voting-age proportion of a

population. S ee Westwego

, 906 F.2d at 1045 n. 3. The second is

Perez

, in which this court a ffirmed a district court’s decision

that the plaintiffs’ population projections were too unreliable to

overcome 1990 census data. See Perez , 165 F.3d at 373. Based on

We stwego and Perez

, the district court properly acknowledged the

persuasiveness of census data while admitting evidence that

demonstrated its inaccuracy in this case. Because the district

court found that the School Board’s 1997 population data overcame

the 1990 census figures, the question is whether that finding was

clearly erroneous.13 The Plaintiffs present a laundry list o f purported

problems concerning the methodology of Ri ves, the School Board’s

d emographics expert. The School Board’s responses as well as

Rives’s cross -examination at trial suffice to show that the

Plaintiffs’ challenges are generally misdirected, exaggerations of

hypothetical prob lems, based upon criticisms of assumptions that

played no role in Rives’s methodology, or based on the analysis in

Rives’s superseded 1995 reports. The Plaintiffs’ most emphatic

argument

-- that Rives himself admitted his Apr il Report was

“wrong”

-- is overstated, because Rives did so only in the context

of explaining how the August Report was based on more current data

and corrected a calculation error. Rives’s admissions did not

affect the underlying finding of both the April and August Reports:

the Plaintiffs’ demonstration district did not contain a majority

of Hispanic voting-age citizens.

The general description of Rives’s methodology given

above reveals that the Gingles I issues in this case do not involve

any complicated statistical formulae or tests of significance that

might bedazzle or bamboozle an unwary district court. C f. Overton

v. City of Austin

, 871 F.2d 529, 544-45 (5th Cir. 1989) (Jones, J.,

concurring) (discussing some district courts’ ill-founded

assumptions a bout the levels at which correlation coefficients

become statistically significant). The data here were relatively

simple; their manipulation involved only rudimentary arithmetic.

Und er these circumstances, the district court did not

clearly err in deciding that Rives’s report demonstrated sufficient14

post-census demographic changes to erode the Hispanic majority in

the Plaintiff s’ demonstration district. In doing so, we take

special note of the School Board ’s responses to the Plaintiffs’

three weightiest methodological criticisms , each of which the

district court could have credited without committing clear error:

(1) the housing stock methodology can be appropri ate for

calculating population changes in small areas, (2) it was

appropriate to account for some apartment complexes by projecting

their imminent populations at the end of ongoing lease-up periods,

and (3) despite some lapses, the municipal power company’s records

of new electrical hook-ups were an accurate gauge of newly

developed housing in the entire school district. Further, the

School Board’s method ology was much more sophisticated than the

crude straight-line population pr ojection that was rejected in

Perez

. S ee Perez v. Pasadena Indep. Sch. Dist.

, 958 F. Supp. 1196,

1212-13 (S.D. Tex. 1997), aff’d , 165 F.3d at 373 (5th Cir. 1999).

B.

Even if the district court properly credited the School

Board’s post-census demographic evidence, the Plaintiffs argue that

it abused its discretion by excluding their proposed rebuttal

evidence about post-census populations.

The distr ict court excluded any evidence from Korbel’s

last-minute survey “because it unfairly surprised the Defendants,”

citing W.D. T EX

. R. CV-16(e), under which the district court may,7 Alternatively, in a footnote, the district court noted that

the methodology and execution of Korbel’s survey were too flawed

for the results to overcome the presumptive correctness of the 1990

c ensus. Although it appears quite compelling, the School Board

does not press this line of argument, and we need not pursue it

since we hold that the evidence was properly excluded due to unfair

surprise.

15 “upon the showing of good cause,” permit a party to supplement the

written summary of an expert’s proposed testimony. 7

On appeal, the Plaintiffs offer two reasons why their

evidence was not an unfair surprise: (1) Korbel had testified in

his deposition that Hispanic population was available south of the

demonstration district; and (2) the survey was done in response to

“new methodologies and numbers” in Rives’s August Report an d was

made available as soon as it was completed.

The Plaintiffs’ first reason fails to account for how

modern discovery handles expert witnesses. The Local Rule required

a “written summary of [Korbel’s] proposed testimony.” It further

required that summary to include “the basis of the opinions which

purport to be the testimony of the witness” and “specific

references to any exhibits that w ill be used by the witness in

support of any opinions.” W.D. T EX

. R. CV-16(e) & note. It can

scarcely be maintained that Korbel’s cursory r eference in a

deposition could serve as adequate notice of his intent to rely on

a door-to-door survey of a specific neighborhood. Nor could that

deposition response have provided sufficient inform ation for the

School Board to prepare to cross-examine Korbel about the survey.

Cf. Sierra Club v. Cedar Point Oil Co.

, 73 F.3d 546, 571 (5th Cir.8 The survey evidence was also unnecessary once the district

c ourt excluded the District’s August Report. This satisfies the

first factor of a four-factor test that has sometimes been applied

in evaluating a district court’s exercise of discretion: “(1) the

importance of the witness’s testimony; (2) the prejudice to the

opposing party of allowing the witness to testi fy; (3) the

possibility of curing such prejudice by granting a continuance; and

(4) the explanation, if any, for the party’s failure to identify

the witness.” B radley v. United S tates , 866 F.2d 120, 125 (5th

Cir. 1989). S ee also Sierra Club

, 73 F.3d at 572 (using same four

factors in evaluating exclusi on of evidence as sanction for

violating discovery order). The Plaintiffs would also appear to

fare quite poorly on the fourth factor, since it was obvious from

t he beginning that the School District would present evidence of

1997 population. Neither party addresses the four-factor test on

appeal, though the School D istrict discussed it in its original

16 1 996) (initial expert disclosures not sufficiently “complete an d

detailed” to meet discovery order).

The Plaintiffs’ second reason takes no account of the

fact that the district court relied only upon Rives’s April Report,

the admissibility of which the Plaintiffs never contested. If the

survey was made necessary only by the novelty of the August Report,

then apparently it co uld not have been detrimental to the

Plaintiffs to exclude both.

In sum, the court did not abuse its discretion by

excluding this evi dence for unfair surprise when the proffering

party failed to meet its duty to supplement its expert disclosures.

See Alldread v City of Grenada

, 988 F.2d 1425, 1436 (5th Cir. 1993)

(no error in excluding expert witness’ testimony when information

crucial to understanding it was not provided until two weeks prior

to trial); Mills v. Beech Aircraft Corp. , 886 F.2d 758, 764 (5th

Cir. 1989) (proper use of discretion to exclude results from tests

conducted by plaintiffs’ expert the week before trial). 8motion to strike.

17 Because it was not an abuse of discretion to exclude the

survey results on the grounds of unfair surprise, we need not

address whether Korbel’s survey would have constituted pro p er

rebuttal testimony.

V

.

For the foregoing reasons, the district c ourt properly

placed the burden on the Plaintiffs to prove a majority of

Hispanics among voting-age citizens in their demonstration

district; the district court did not clearly err in finding the

School Board presented s ufficient evidence to prove demographic

changes since the census; and the district court did not abuse its

discretion in excluding the Plaintiffs’ proposed rebuttal testimony

for unfair surprise.

The judgment of the district court is AFFIRMED.