UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20740

JESSE CAMPOS; W. R. (RESENDEZ)

MORRIS; MEXICAN AMERICAN BAR

ASSOCIATION OF HOUSTON,

Plaintiffs-Appellants,

versus

CITY OF HOUSTON, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

May 19, 1997

Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

Jesse Campos, W.R. (Resendez) Morris, and the Mexican American Bar Association

of Houston appeal the grant of summary judgment in favor of the City of Houston, et al., in

this voting rights case. For the reasons assigned, we affirm.1 The Attorney General objected to the plan, stating that it violated section 5 of the Voting Rights

Act. 42 U.S.C. § 1973c (1994). The district court ordered the election to proceed. A panel of this

court vacated that order because the city failed to obtain preclearance from the Department of Justice;

however, the election results were not set aside. C ampos v. City of Houston , 968 F.2d 446 (5th

Cir. 1992), cert. denied, 506 U.S. 1050 (1993). The section 5 challenge is not a part of the instant

appeal.



### 2 BACKGROUND

Houston redrew its single-member districts for city council elections based on 1990

census data which disclosed that Hispanics made up 27.6 percent of the total population and

24.1 p ercent of the voting-age population. The redistricting plan included a mayor and

fourteen council members el ected from nine single-member districts with five elected at

large. Houston voters approved the plan in August 1991. 1

Since 1991 Houston consistently has elected Hispanic c andidates from its two

majority Hispanic voting-age popula tion districts. In 1993 an Hispanic incumbent was

reelected at large. In 1995 two Hispanic candidates were elected at large. Nevertheless,

plaintiffs contend that eliminating the at-large seats and creating additional single-member

districts would permit the Hispanic community to elect more city council members. Their

evidence indicates that four districts could be drawn in which voting-age Hispanics would

be numerous enough to influence the election results.

The district court concluded that the plaintiffs failed to establish a genuine issue of

material fact on the threshold requirem ents of a vote dilution claim and granted summary

judgment in favor of Houston. The plaintiffs timely appealed.2 Armstrong v. City of Dallas , 997 F.2d 62 (5th Cir. 1993).

3 Fed. R. Civ. P. 56(c).

4 42 U.S.C. § 1973 (1994).

5 478 U.S. 30 (1986).



### 3 ANALYSIS

I. Standard of Review

We review the district court’s grant of summary judgment de novo

, 2 construing all

evidence in the light most favorable to the nonmoving party. Summary judgment is

appropriate onl y when there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. 3

II. Establishing a Vote Dilution Claim

In 1982 Congress amended section 2 of the Voting Rights Act of 1965 to provide:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in

a manner which results in a denial or abridgement of the right of any citizen

of the United States to vote on account of race or color . . . .

(b) A violation of subsection (a) . . . is established if, based on the totality of

circumstances, it is shown that the political processes leading to nomination

or election in the State or political subdivision are not eq ually open to

participation by members of a class of citizens protected by subsection (a)

. . . in that its members have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of

their choice. The 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: P rovided

, That nothing in this section establishes a right

to have members of a protecte d class elected in numbers equal to their

proportion in the population. 4

In Thornburg v. Gingles

, the Supreme Court applied section 2 to an at-large electoral

scheme and decided that Congress had intended to eliminate the requirement of showing

discriminatory intent in challenges to electoral mechanisms. 5 The amendment re-established6 See White v. Regester , 412 U.S. 755 (1973).

7 Gingles

, at 47 ( quoting Burns v. Richardson

, 384 U.S. 73, 88 (1966) ( quoting Fortson

v. Dorsey , 379 U.S. 433, 439 (1965))).

8 485 F.2d 1297 (5th Cir. 1973) (en banc), aff'd sub nom. East Carroll Parish Sch. Bd.

v. Marshall

, 424 U.S. 636 (1976) (per curiam). S ee S. R EP

. N O

. 417, 97th Cong., 2d Sess.

28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07.



### 4 the “results test,” 6 which focuses on whether the challenged electoral practice prevents the

plaintiffs from having an equal opportunity to participate in the political process and to elect

candidates of their choice. According to the Court:

The essence of a § 2 claim is that a certain electoral law, practice, or structure

interacts wi th social and historical conditions to cause an inequality in the

opportunities enjoyed by black and white voters to elect their preferred

representatives. This Court has long recognized that multimember districts

and at-large voting schemes may “‘operate to minimi ze or cancel out the

voting strength of racial [minorities in] the voting population.’” The theoretical

basis for this type of impairment is that where minority and majority voters

consistently prefer different candidates, the majority, by virtue of its numerical

superiority, will regularly defeat the choices of minority voters. 7

The Court noted that several factors could be probative of a section 2 violation. These

factors were derived in part from our en banc decision in Zimmer v. McKeithen: 8

(1.) the extent of any history of official discrimination in the state or political

subdivision that touched the right of the members of the minority group to

register, to vote, or otherwise to participate in the democratic process;

(2.) the extent to which voting in the elections of the state or political

subdivision is racially polarized;

(3.) the extent to which the state or politic al subdivision has used unusually

large election districts, majority vote requirements, anti- s ingle shot provisions,

or other voting practices or procedures that may enhance the opportunity for

discrimination against the minority group;

(4.) if there is a candidate slating process, whether the members of the

minority group have been denied access to that process;

(5.) the extent to which members of the minority group in the state or political

subdivision bear the effects of discrimination in such areas as education,9 Gingles , 478 U.S. at 36-37.

10 Id. at 37.

11 Id. at 50-51 (citations omitted).

12 Overton v. City of Austin , 871 F.2d 529, 538 (5th Cir. 1989).



### 5 employment and health, which hinder their ability to participate effectively in

the political process;

(6.) whether political campaigns have been characte rized by overt or subtle

racial appeals;

(7.) the extent to which members of the minority group have been elected to

public office in the jurisdiction. 9

Two other factors may establish a violation: “‘whether there is a significant lack of

responsiveness on the part of elected officials to the particularized needs of the members of

the minority group’ [and] ‘whether the policy underlying the state or political subdivision's

use of such voting qualification, prerequisite to voting, or standard, practice or procedure is

tenuous.’” 10 Most importantly, the Co urt articulated three preconditions to establishing a vote

dilution claim:

Fi rst, the minority group must be able to demonstrate that it is sufficiently

large and geographically compact to constitute a majority in a single-member

distri ct. . . . Second, the minority group must be able to show that it is

politically cohesive.

. . . Third, the minority 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. 11

Failure to establish any one of these threshold requirements is fatal. 12 In the instant

case, the district court found that plaintiffs failed to create a genuine issue of material fact

on the first and third Gingles factors.

A. Is the minority group sufficiently large and geographically com p act to

constitute a majority in a single-member district?13 Johnson v. DeGrandy , 512 U.S. 997 (1994) (assuming without deciding that the first

Gingles condition was satisfied).



### 6 The district court concluded that plaintiffs could not increase the number of Hispanic

council members by redistricting. At time of trial three Hispanics served on the city council

-- two were elected from single-member districts and one was elected at large. When this

appeal was orally argued, there were fo ur Hispanic council members--two elected from

single-member districts and two elected at large.

This appeal requi res us to confront directly the relevance of citizenship to a vote

dilution claim. The Supreme Court thus far has declined to address this issue. 1 3 Houston’s

1990 census evidence shows that 45.8 percent of voting-age Hispanic Houston residents were

noncitizens and ineligible to vote. By comparison, 2.2 percent of the non-Hispanic Anglo

voting-age population and 1.6 percent of the non-Hispanic Black voting-age population were

noncitizens. In communities in which different racial and ethnic groups have approximately

equal percentages of noncitizens this data would be insignificant. In Houston, however, the

variation is quite marked.

According to th e defendants, only 15.3 percent of the total citizen voting-age

population is Hispanic. Houston maintains that Hispanics are presently over-represented on

the city council because they hold four of fourteen seats, or 28.5 percent. The defendants’

expert witness concluded that redistricting could not boost the Hispanic community’s

representation on the city council. Plaintiffs contend that their evidence contradicts

Houston’s predictions about redistricting. Their expert opined that “[w]hile I believe that the

City projections are in the general ball park, my reading of the information is different from

that of the City’s expert. Thus, I am unable to confirm the accuracy of the projections which

the City makes from these data.” He explained that citizenship data is not reliable because14 Gaffney v. Cummings , 412 U.S. 735 (1973).

1 5 “No voting qualification or prerequisite to voting or standard, practice, or procedure shall

be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of

race or color . . . .” 42 U.S.C. § 1973(a) (emphasis added).

16 876 F.2d 448 (5th Cir. 1989).

17 Id. at 452 ( quoting Overton , 871 F.2d at 542 (Jones, J., concurring)).



### 7 high illiteracy rates and the prevale nce of Spanish as a primary language prevent many

Hispanics from answering census questions accurately. Additionally, rapid growth and the

relative youth of Houston’s Hispanic community complicate determining the exact number

of Hispanic citizens.

B. Use of citizenship data in the Gingles analysis.

Plaintiffs urge us to reverse the district court and abandon the examination of

citizenship data as a factor for a vote dilution claim. They contend that unlike general census

data, which the Supreme Court has determined to be not inherently unreliabl e despite its

significant shortcomings, 14 citizenship data is derived from a 12 percent sampl ing of the

population as opposed to a 100 percent head count. Moreover, citizenship information is

unavailable until several years after the release of general census data, which could hinder

redistricting.

Despite these limitations, we decline to reject citizenship as a relevant factor in the

Gingles analysis. The plain language of section 2 of the Voting Rights Act makes clear that

its protections apply to United States citizens. 15 As we observed in Brewer v. Ham : 16

The raison d’et re of Thornburg and of amended § 2 is to facilitate

participation by minorities in our political processes, by preventing dilution of

their votes. Only voting age persons can vote. It would be a Pyrrhic victory

for a court to create a single-member district in which a minority population

dominant in absolute, but not in voting age numbers, continued to be defeated

at the polls. 1718 Gingles , 478 U.S. at 50 n.17.



### 8

Similarly, only voting-age persons who are United States citizens can vote. Based on the

available data, almost half of Houston’s Hispanic voting-age population is ineligible to vote.

As the Supreme Court explained in Gingles : “Unless minority voters possess the p otential

to elect representatives in the absence of the challenged s tructure or practice, they cannot

claim to have been injured by that practice.” 18 Houston’s current electoral scheme has

enabled its Hispanic community to elect city council members in greater than proportional

numbers, based on its citizen voting-age population.

For these reasons, we conclude that plaintiffs have failed to establish a genuine issue

of material fact on the first part of the Gingles analysis. Because all three conditions must

be met to establish a vote dilution claim, it is unnecessary for us to evaluate the second and

third elements of the test.

CONCLUSION

We hold that court s evaluating vote dilution claims under section 2 of the Voting

Rights Act must consider the citizen voting-age population of t he group challenging the

electoral practice when determining whether the minority gr oup is sufficiently large and

geographically compact to constitute a majority in a single-member district.

The judgment of the district court is AFFIRMED.