Volma Overton, and Ernesto Calderon, Plaintiffs-Intervenors-Appellants v. City of Austin, and Black Citizens Task Force, Defendant-Intervenor-Appellee

871 F.2d 529, 1989 U.S. App. LEXIS 5927, 1989 WL 34850
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 1, 1989
Docket87-1805
StatusPublished
Cited by90 cases

This text of 871 F.2d 529 (Volma Overton, and Ernesto Calderon, Plaintiffs-Intervenors-Appellants v. City of Austin, and Black Citizens Task Force, Defendant-Intervenor-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Volma Overton, and Ernesto Calderon, Plaintiffs-Intervenors-Appellants v. City of Austin, and Black Citizens Task Force, Defendant-Intervenor-Appellee, 871 F.2d 529, 1989 U.S. App. LEXIS 5927, 1989 WL 34850 (5th Cir. 1989).

Opinions

PER CURIAM:

We are asked by black and Mexican-American plaintiffs-appellants to review whether the City of Austin’s at-large, majority place system for election of city council members violates Section 2 et seq. of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. (1982) (as amended). The [531]*531district court performed a “searching and practical evaluation of ‘past and present reality’,” S.Rep. No. 417, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Admin.News 177, 208, both before Thornburg v. Gingles, 478 U.S. 80, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), and, with additional evidence, after Thornburg on remand from this Court. 798 F.2d 150. The district court found no violation.. We affirm.

I. INTRODUCTION

Austin elects six council members and a mayor by majority vote using an at-large system. Although the Texas capital city has had both a black and a Mexican-American on its council for nearly 15 years, this was not always the case. From 1924 to 1951, the city council was elected at-large without designated places by plurality vote. Black candidates ran unsuccessfully for the council in 1949, 1951, 1965, and 1969, and a Mexican-American candidate was defeated in a 1969 run-off. Building upon this skeletal electoral history, the plaintiffs, black and Mexican-American individuals, the NAACP and MALDEF,1 seek to prove two contentions: that the 1953 city charter amendments, which introduced a place system and majority vote requirement, were discriminatorily motivated and thus warrant Voting Rights Act relief; and that notwithstanding significant successes of minority candidates in recent years, blacks and Mexican-Americans have suffered actionable racial vote dilution.2 As relief, they urged upon the district court two possible forms of single-member council districts: a six council member, one mayor scheme with nearly a majority of black voting age citizens in one district; or an eight council member, one mayor plan in which blacks and Mexican-Americans would comprise a majority in two districts.

Our analysis starts with amended Section 2 of the Voting Rights Act:

(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, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) ... is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally 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: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C. § 1973 (1988). Congress provided that the totality of the circumstances determines whether, because of a specific voting practice like multimember district-ing, the political processes of a State or subdivision are not equally open to participation by all races. Simultaneously, Congress rejected any requirement for proportional representation by race. See S.Rep. No. 417, supra.

The Supreme Court’s first significant interpretation of amended Section 2 is found in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). The Supreme Court viewed the report of the Senate Judiciary Committee accompanying the bill that amended Section 2 as instructive [532]*532of the various factors that might be probative of a Voting Rights Act claim:

The Senate Report specifies factors which typically may be relevant to a § 2 claim: the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction ... The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the State’s or the political subdivision’s use of the contested practice or structure is tenuous may have probative value.

The Court specifically recognized that:

Although the Senate Report espouses a flexible, fact-intensive test for § 2 violations, it limits the circumstances under which § 2 violations may be proved in three ways. First, electoral devices, such as at-large elections, may not be considered per se violative of § 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process, [citation omitted] Second, the conjunction of an allegedly dilutive electoral mechanism and the lack of proportional representation alone does not establish a violation, [citation omitted] Third, the results test does not assume the existence of racial bloc voting; plaintiffs must prove it.

Thornburg, 478 U.S. at 44-46, 106 S.Ct. at 2763-64.

Discussing the issue of multimember districts, the Court again noted that they are not per se violative of minority voters’ rights. Thornburg, 478 U.S. at 48, 106 S.Ct. at 2765. It held, “Minority voters who contend that the multimember form of districting violates § 2, must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates. See, e.g., S.Rep. 16.” Id.

The Court then noted that,

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871 F.2d 529, 1989 U.S. App. LEXIS 5927, 1989 WL 34850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/volma-overton-and-ernesto-calderon-plaintiffs-intervenors-appellants-v-ca5-1989.