* Chief District Judge of the Eastern District of Texas,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

Nos. 89-2868

 89-6226

_____________________

RITA RANGEL, ET AL.,

Plaintiffs-Appellees,

v.

THE ATTORNEY GENERAL and 

THE SECRETARY OF STATE OF

THE STATE OF TEXAS

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________________________________________________

( November 18, 1993 )

Before KING and JOLLY, Circuit Judges, and PARKER*, District

Judge.

KING, Circuit Judge:

This section 2 voting rights appeal raises one issue: Did

the district court clearly err in finding legally significant

white bloc voting in elections involving the Thirteenth Court of

Appeals for the State of Texas? For the reasons discussed below,

we conclude that the district court did commit clear error in

finding -- essentially on the basis of one election -- that

whites vote sufficiently as a bloc so as to usually defeat the
 

1 In this case, the Plaintiffs and the State Defendants

introduced evidence relating to registered voters rather than

voting age population, thereby eliminating questions about the

statistics from the presence of non-citizens in the voting age

population.

2

preferred candidate of Hispanics in Thirteenth Court elections. 

Accordingly, we reverse the judgment of the district court.

I. Background

In 1988, two Hispanic registered voters ("Plaintiffs") filed

suit against various officials of Texas ("State Defendants"). 

They alleged that the manner in which Texas elects judges to the

Thirteenth Court of Appeals violates section 2 of the Voting

Rights Act of 1965, as amended, 42 U.S.C. § 1973. In particular,

the Plaintiffs contended that the current practice of electing

the six judges of the Thirteenth Court from an at-large election

district, which covers some twenty counties, impermissibly

dilutes the voting strength of Hispanics.

The section 2 liability issue was tried to the district

court in April 1989. Thereafter, on July 28, 1989, the district

court entered findings of fact and conclusions of law. The

district court first found that, in 1988, Hispanics comprised 46%

of the registered voters1 in the twenty-county area constituting

the Thirteenth Judicial District. The court went on to find that

the Plaintiffs had satisfied the three threshold requirements set

forth in Thornburg v. Gingles, 478 U.S. 30 (1986). Specifically,

the court found: (a) that four single-member districts could be

drawn in which Hispanics would constitute 63.7% of the total
3

population; (b) that Hispanics in the Thirteenth Judicial

District are politically cohesive; and (c) that there is legally

significant white bloc voting in the Thirteenth Judicial

District. The district court then analyzed the totality of the

circumstances or Zimmer factors -- specifically, the factors

listed in the Senate Report accompanying the 1982 amendments to

section 2, see S. Rep. No. 417, 97th Cong., 2d Sess. (1982),

reprinted in 1982 U.S.C.C.A.N. 177 (citing Zimmer v. McKeithen,

485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd per curiam sub

nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636

(1976)). It concluded that the following Zimmer factors weighed

in favor of a vote dilution finding: (a) the history of "some

discrimination in the 20-county area that touched the rights of

Hispanics to participate in the political process"; (b) the "high

degree of racial polarization within a majority of the counties

in the 20-county area"; (c) the unusually large size and

population of the Thirteenth Judicial District; and (d)

socioeconomic disparities between Hispanics and Anglos.

Based on these findings, the district court concluded that

the Plaintiffs had proven a section 2 violation. It specifically

held that "the at-large nature of the election system used to

elect judges to the Thirteenth Court of Appeals makes it more

difficult for Hispanics to elect representatives of their choice,

thus making the present process violative of law." The district

court gave the parties thirty days "to meet and negotiate on a

proposed remedy." The district court further instructed the
 

2 Initially, there was some question as to whether we had

jurisdiction to consider the State Defendants' first appeal from

the district court's liability determination, which was not

certified pursuant to 28 U.S.C. § 1292(b). We now conclude,

however, that the State Defendants' appeal from the district

court's judgment on November 3, which was for all practical

purposes a permanent injunction disposing of the entire

controversy, gives us jurisdiction to consider the district

court's earlier liability decision. See 9 MOORE'S FEDERAL PRACTICE ¶

110.20[1] (2d ed. 1993) ("Of course if an order granting a

permanent injunction disposes of the entire controversy, it is

appealable as a final decision under 28 U.S.C. § 1291.").

4

parties, in the event they could not reach an agreement

concerning the remedy, to separately submit their proposed

remedies to the court within forty-five days.

The State Defendants immediately filed a notice of appeal

challenging the district court's section 2 liability finding. In

an "abundance of caution," the State Defendants further requested

the district court to certify its liability determination

pursuant to 28 U.S.C. § 1292(b). The district court declined to

do so and instead entered a judgment adopting the Plaintiffs'

proposed remedy on November 3, 1989. In this judgment, the

district court ordered an "interim plan" to be implemented in

"all future elections." This plan calls for, among other things,

dividing the current Thirteenth Judicial District into six

single-member districts. The State Defendants also filed a

notice of appeal from this judgment, again indicating their

intent to contest the district court's liability determination.2
5

II. Analysis

The State Defendants argue that the district court's section

2 liability determination must be reversed. They argue

specifically that the district court clearly erred in finding --

on the basis of one election -- that whites vote sufficiently as

a bloc in the Thirteenth Judicial District so as usually to

defeat the Hispanic-preferred candidate. We agree.

A. The Legal Test for White Bloc Voting

To establish legally significant white bloc voting under the

Gingles threshold inquiry, minority plaintiffs "must be able to

demonstrate that the white majority votes sufficiently as a bloc

to enable it -- in the absence of special circumstances such as

the minority candidate running unopposed -- usually to defeat the

minority's preferred candidate." Gingles, 478 U.S. at 51

(emphasis added). Said another way, to prove legally significant

white bloc voting, minority plaintiffs must present evidence of

"a white bloc vote that normally will defeat the combined

strength of minority support plus white `crossover' votes." Id.

at 56. It is the "usual predictability of the majority's success

[that] distinguishes structural dilution from the mere loss of an

occasional election." Id. at 51.

The amount of white bloc voting that can generally cancel

out minority voting strength will, of course, "vary from district

to district according to a number of factors." Id. at 56. Among

the factors affecting this inquiry is the percentage of

registered voters in the district who are members of the minority
6

group. Id. Where, as in the Thirteenth Judicial District, the

minority group borders on constituting a majority of registered

voters, it will probably be more difficult to establish a white

bloc vote that will usually defeat the minority group's preferred

candidate. Conversely, if the minority group constitutes only a

small fraction of the total number of registered voters, it may

be, relatively speaking, easier for the members of that group to

establish their effective submergence in a white majority.

B. Standard of Review

Because a district court's finding of legally significant

white bloc voting is a question of fact, we review it for clear

error. See Gingles, 478 U.S. at 77-80; Westwego Citizens for

Better Gov't v. City of Westwego, 872 F.2d 1201, 1203 (5th Cir.

1989) ("Westwego I"); Campos v. City of Baytown, 840 F.2d 1240,

1243 (5th Cir. 1988), cert. denied, 492 U.S. 905 (1989). That

is, as long as the district court applies the appropriate legal

standards, we will not reverse its finding of legally significant

white bloc voting unless, based upon the entire record, we are

"left with the definite and firm conviction that a mistake has

been committed." Anderson v. City of Bessemer City, 470 U.S.

564, 573 (1985). If the district court's account of the evidence

is plausible in light of the record viewed in its entirety, we

will not reverse it -- even if convinced that had we been sitting

as trier of fact, we would have weighed the evidence differently. 

Id. at 573-74.
 

3 Up to the time of trial, only two Hispanics had been

elected to the Thirteenth Court, both in uncontested elections. 

Justice Raul Gonzalez was appointed to serve on that court in

1981, and ran unopposed for the position in 1982, after which

time he was appointed to the Texas Supreme Court. Justice

Fortunato P. Benavides was appointed to fill his seat on the

Thirteenth Court, and he ran unopposed for the office in 1986 and

1988.

 

4 We have also noted that, "when statistical evidence is

used to establish legally significant white bloc voting, the most

probative elections are generally those in which a minority

candidate runs against a white candidate." Magnolia Bar Ass'n,

Inc. v. Lee, 994 F.2d 1143, 1149 (5th Cir. 1993).

7

C. The Relevant Elections

In this case, the district court found that there was

legally significant white bloc voting in judicial elections

involving the Thirteenth Court of Appeals by relying "heavily" on

the 1984 Democratic primary race for the Thirteenth Court between

Justice Horace Young ("Young") and Homer Salinas ("Salinas") --

the only race for that court pitting an Anglo candidate against a

Hispanic candidate. In that race, Salinas, who was clearly the

preferred candidate of Hispanic voters, was defeated by a margin

of 57% to 43%.3 Obviously, this race is highly probative. See,

e.g., Magnolia Bar Ass'n, Inc. v. Lee, 994 F.2d 1143, 1149 (5th

Cir. 1993) (recapitulating that "elections involving the

particular office at issue will be more relevant than elections

involving other offices").4

However, since the focus of the third Gingles factor is upon

the usual predictability of the majority's success, evidence of

one or two elections may not give a complete picture as to voting

patterns within the district generally. Thus, where, as here,
 

5 Westwego Citizens for Better Gov't v. City of Westwego,

946 F.2d 1109, 1112 n.2 (5th Cir. 1991).

 

6 In fact, there had only been four contested elections of

any kind for the Thirteenth Court, all in the Democratic primary. 

Along these lines, the parties have conceded that the Democratic

primary is the effective determinant of who will sit on the

Thirteenth Court. Indeed, in its brief on appeal, the State

Defendants note that "[t]hrough trial no one had ever sought the

Republican party nomination for a seat on the court; only

Democratic party nominees had been elected to the court in

general elections." Thus, no one has argued that, even if

Hispanic-preferred candidates are consistently defeated by a

white bloc vote, those defeats are more likely the result of

partisan affiliation than racial bias in the electorate. E.g.,

League of United Latin American Citizens, Council No. 4434 v.

Clements, 999 F.2d 831, 850 (5th Cir. 1993) (en banc). 

8

there is evidence of only one election on all fours with the

challenged process, that evidence must be viewed together with

available evidence of other elections "that encompass more

geographic area than just [the election district at issue]: 

e.g., . . . state-wide or national elections,"5 to determine

whether significant white bloc voting and the other Gingles

elements are met. See Citizens for a Better Gretna v. City of

Gretna, 834 F.2d 496, 502 & n.13 (5th Cir. 1987) (citing Gingles,

489 U.S at 57 n.25), cert. denied, 492 U.S. 905 (1989); Westwego

I, 872 F.2d at 120.

1. Exogenous Elections

Supplementing the evidence of the Young/Salinas race,

evidence was offered by both sides of the following exogenous

judicial elections pitting an Anglo candidate against a Hispanic

candidate in the Democratic primary6 from which the district

court could also find indications of racial voting patterns in

the twenty-county area:
 

7 The next most successful candidate only received 20% of

the total vote.

 

8 Justice Gonzalez' three Anglo opponents, by contrast,

received only 40% of the total vote in the same area.

9

(1) The 1984 Democratic primary for the Texas Court of

Criminal Appeals, in which George Martinez ("Martinez")

-- the Hispanic-preferred candidate -- garnered 38% of

the total vote and 11.3% of the Anglo vote in the

twenty-county area, making him the top vote-getter;

(2) The 1986 Democratic primary for the Texas Court of

Criminal Appeals, in which Martinez again received the

majority of total vote -- this time winning 47% of the

total vote and 16% of the Anglo vote in the twentycounty area7;

(3) The 1986 Democratic primary runoff for the Texas Court

of Criminal Appeals, in which Martinez received 60% of

the total vote in the Thirteenth District area --

including 22% of the white crossover vote;

(4) The 1986 Democratic primary for the Texas Supreme

Court, in which Justice Raul Gonzalez ("Gonzalez") --

the Hispanic-preferred candidate -- was able to garner

60% of the total vote, including 28.7% of the Anglo

vote, in the twenty-county area8; and

(5) The 1986 Democratic primary runoff for the Texas

Supreme Court, in which Justice Gonzalez received 72%
 

9 Although, as noted above, the parties agree that the

determinative vote is in the Democratic primary, we note that

evidence of general election voting patterns may also be

probative as to voting dilution. For example, in Gingles, the

Supreme Court tacitly approved the district court's conclusion

that general elections could provide further evidence on the

third factor of the threshold test. Thornburg v. Gingles, 478

U.S. 30, 60 n.29 (1986). The district court in the Gingles case

had considered relevant the fact that, "although winning the

[Democratic] primary in [the relevant] district is historically

tantamount to election, 55% of whites declined to vote for the

Democratic black candidate in the general election." Id.

Conversely, in the instant case, the Hispanic-preferred candidate

in the Supreme Court general elections -- which are the only

general elections contained in the record -- continued to garner

the majority of votes. Specifically, Justice Gonzalez received

61% of the total district-wide vote in the 1984 general election

and won 68% of the vote in the 20-county area in 1988.

 

10 The district court appeared to believe that Justice

Gonzalez was "unique," and that his victory over an Anglo

opponent should therefore be discounted, because he was backed by

both Republicans and Democrats. While this may make Justice

Gonzalez unique, we fail to see why, as a general matter, it

makes his victory over his Anglo opponent nonprobative. Further,

the relevant evidence with respect to Justice Gonzalez' race was

the evidence of the voting pattern in the twenty-county area,

10

of the votes in the twenty-county area, including 40%

of the Anglo vote, and defeated his Anglo opponent.9

The district court discounted these exogenous judicial races

in large part because they were "state-wide." However, the

exogenous character of the elections does not render them

nonprobative in a case where there is only one election on all

fours. The statistics showing the performance of these

candidates over the entire twenty-county area is, in our view,

quite indicative of district-wide voting patterns.

The trial court also considered the elections not to be

highly probative because it found the winning candidate to be

unique10 or because no evidence was introduced to determine the
which both parties concede to be heavily Democratic.

11

"home" area of the candidate. The court surmised that Gonzalez

was "hypothetically" successful in the twenty-county area for his

Supreme Court campaign because he was a native of the area. 

Conversely, it observed that there was no evidence as to the

other candidate's home area. This "hypothetical" limitation upon

the evidence is flawed because it involves speculation about a

subjective factor affecting voter preference for which there is

no evidence in the record.

Finally, the district court discredited the evidence

involving Martinez' 1984 bid for the Court of Criminal Appeals

since it was "theoretically" possible (there being no evidence on

the subject) that he was not ultimately successful in the 1984

primary runoff. While that may be a basis for caution with

respect to Martinez' victory in the 1984 primary, it does not

undercut the fact that Martinez was clearly the top vote-getter

throughout the twenty-county area in the 1986 Democratic primary,

as well as in the 1986 run-off election. Moreover, the fact that

Martinez may not have been successful state-wide does not

militate against consideration of the overwhelmingly favorable

results of the primary elections specific to the Thirteenth

District.

In summary, the district court's reasons for disregarding

the success of Hispanic candidates in these exogenous elections

are largely conjecture, and its assumptions simply do not impeach

the significant evidence that minority judicial candidates have
 

11 At oral argument, the Plaintiffs suggested that the

results from these elections provide support for the district

court's finding of legally significant white bloc voting. 

Interestingly, however, Plaintiffs took a contradictory position

in their brief by criticizing what they characterized as the

State Defendants' argument that evidence of voting patterns in

districts smaller than the one at issue is not legally probative. 

12

been successful in the Thirteenth District. The evidence of

these exogenous elections is demonstrative of voting patterns in

the entire twenty-county area at issue since the statistics are

district-wide and specific to the Thirteenth region. Moreover,

the elections were for judicial positions and thus most closely

resemble the elections at issue. The notable Hispanic success in

these exogenous elections cuts heavily against a finding of

legally significant white bloc voting. We find, therefore, that

it was error for the district court to disregard this body of

exogenous election evidence when it had only one indigenous

election from which to consider the third Gingles factor.

2. "Building Block" or "Mosaic" Elections

 The court below also discounted evidence from elections

that took place in selected cities, counties, and independent

school districts within the twenty-county voting district --

which we refer to as "mosaic" or "building block" elections.11

We agree with the district court that these elections were of

negligible probative value in the instant case. At trial, the

Plaintiffs introduced evidence of city- and county-wide elections

and school district elections, as well as a host of "mosaic"

elections within Bee and San Patricio Counties, as evidence,
13

inter alia, of legally significant white bloc voting within the

entire twenty-county area challenged. The district court

assessed this mosaic evidence as "unimpressive." We concur with

the district court's view that this evidence "does little to

establish whether Anglos are able to defeat the minority's

preferred candidate" in the twenty-county area. See also

Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547, 1558,

1560 (11th Cir. 1987) (Tuttle, J.) (rejecting evidence of citywide election contests as not probative of county-wide voting

practices), cert. denied, 485 U.S. 936 (1988); cf. Mississippi

State Chapter, Operation PUSH v. Mabus, 932 F.2d 400, 409-11 (5th

Cir. 1991) (evidence of insignificant voter registration

disparities within individual towns or counties did not impeach

evidence of pronounced disparity with respect to overall state

registration rates). 

Although we express no opinion about use of a "building

block" or "mosaic" theory in general -- i.e., showing legally

significant white bloc voting by referring to elections from

areas smaller than the election district -- we agree with the

district court that the Plaintiffs in this case did not present

evidence from enough of the "blocks" within the twenty-county

area to be probative of voting patterns in the district as a

whole. Both parties agree that the demographics of the

Thirteenth Judicial District vary enormously between the

southern, Hispanic-concentrated counties and the northern, Angloconcentrated ones. Most of the building block evidence
 

12 Some of this "evidence" will not bear much weight since

it involves allegations of vote dilution or racial polarization

rather than judicial findings. Moreover, a significant part of

the evidence includes lawsuits involving issues, such as racial

discrimination, which are relevant to the Zimmer factors analysis

reached if a prima facie case of vote dilution is made, but are

not pertinent to the threshold white bloc voting inquiry.

14

introduced involved cities, independent school districts, or

counties (particularly Bee and San Patricio Counties) within the

twenty-county area making up the Thirteenth District, and, like

the district court, we are not able to conclude that this

evidence from a scattering of voting subsets is indicative of

county-wide voting -- or more particularly district-wide voting

-- as a whole.12

 III. Conclusion

In conclusion, we do not find the district court's finding

of legally significant white bloc voting to be plausible in light

of the record viewed in its entirety. Although the district

court could reasonably give more weight to the 1984 Young/Salinas

Democratic primary race in assessing the white bloc voting

inquiry, this single race is not sufficient, in our view, to

support a determination that the white bloc vote will usually

defeat the preferred candidate of Hispanics in Thirteenth Court

elections. Given the limited number of Thirteenth Court

elections, the district court should not have discounted several

exogenous judicial elections in which the Hispanic (and Hispanicpreferred) candidates won -- in one case with substantial support

from Anglo voters. See Gretna, 834 F.2d at 502 (recognizing that
15

exogenous elections become more relevant where the available data

is sparse). In light of these elections, the defeat of Salinas

in the 1984 Democratic primary looks much more like the loss of

an "occasional election" -- not like evidence of the "usual

predictability of the majority's success." See Gingles, 478 U.S.

at 51.

Our conclusion that the district court clearly erred in

finding legally significant white bloc voting is reinforced by

the fact that, at the time of trial, Hispanics constituted 46% of

the registered voters in the Thirteenth Judicial District. The

evidence at trial revealed that Hispanic voters could control

election outcomes with relatively little support from Anglo

voters. In the 1986 Democratic primary runoff between Martinez

and Duncan for the Texas Court of Criminal Appeals, Martinez

received only 22.4% of the Anglo vote, yet he won the support of

60% of the total vote. Even when Anglo crossover voting was at a

low of 13.8%, as it was in the 1984 Young/Salinas race, the

Hispanic-preferred candidate was able to garner 43% of the total

vote.

Accordingly, we hold that the district court clearly erred

in finding legally significant white bloc voting. The 1984

Young/Salinas race -- whether viewed standing alone or in

conjunction with the exogenous judicial races -- is simply

insufficient to show that the white bloc vote in the twentycounty area usually defeats the preferred candidate of Hispanic

voters in elections involving the Thirteenth Court of Appeals. 
16

In short, we are left with the definite and firm conviction that

the district court was mistaken in finding to the contrary.

Because the district court clearly erred in finding legally

significant white bloc voting in elections involving the

Thirteenth Court of Appeals, its ultimate finding of vote

dilution is also erroneous. See Overton v. City of Austin, 871

F.2d 529, 538 (5th Cir. 1989) (failure to establish any one of

the Gingles preconditions is fatal to a vote dilution claim). 

The Plaintiffs did not meet their burden of establishing their

submergence in a white majority. The judgment of the district

court is therefore REVERSED and RENDERED in favor of the State

Defendants.