Harding et al v. County of Dallas, Texas et al
MEMORANDUM OPINION setting out findings of fact and conclusions of law in support of decision in favor of defendants following bench trial. (Ordered by Judge Sidney A Fitzwater on 8/23/2018) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
ANNE HARDING, et al.,
COUNTY OF DALLAS, TEXAS,
§ Civil Action No. 3:15-CV-0131-D
This is a suit by Anglo voters of Dallas County, Texas who maintain that their rights
under § 2 of the Voting Rights Act of 1965 (“VRA”), 52 U.S.C. § 10301 et seq., and the
Equal Protection Clause of the Fourteenth Amendment have been violated by the absence
of a second county commissioner district that is capable of electing a representative of their
choice: an Anglo Republican. Following a bench trial, and for the reasons explained,1 the
court holds that plaintiffs have failed to prove that, were a second Anglo majority district
drawn, Anglos would possess the potential to elect an Anglo Republican. In short, this is
because the Anglo citizen voting age population (“CVAP”) of Dallas County contains a
significant number of persons (roughly 23%) who vote Democrat. Accordingly, because
plaintiffs cannot prevail on their claims under § 2 of the VRA and the Fourteenth
Amendment Equal Protection Clause, defendants are entitled to judgment dismissing this
The court sets out in this memorandum opinion its findings of fact and conclusions
of law. See Fed. R. Civ. P. 52(a)(1).
action with prejudice.
Plaintiffs Anne Harding (“Harding”), Gregory R. Jacobs (“Jacobs”), Holly Knight
Morse (“Morse”), and Johannes Peter Schroer (“Schroer”), Anglo residents2 of Dallas
County, Texas, bring this suit challenging the 2011 map (“2011 Map”) for electing
commissioners of the Dallas County Commissioners Court (“Commissioners Court”). Their
claims that were tried are under § 2 of the VRA and the Equal Protection Clause of the
Fourteenth Amendment, alleging intentional and “effects” vote dilution as a result of the
redistricting in 2011 of commissioner districts.
Dallas County is governed by a Commissioners Court comprised of four county
commissioners, who are elected from single member districts, and a county judge, who is
elected countywide. See Tex. Const. art V, § 18(b). Following the 2010 Census, Dallas
County Judge Clay Lewis Jenkins (“Judge Jenkins”) and then-county commissioners
Maurine Dickey (“Commissioner Dickey”), Mike Cantrell (“Commissioner Cantrell”), John
Wiley Price (“Commissioner Price”), and Dr. Elba Garcia (“Commissioner Garcia”)
determined that it was necessary to redraw district lines because the map drawn after the
prior census (the “Benchmark Map”) had become malapportioned. The Commissioners
Court concluded that the Benchmark Map violated the one-person, one-vote requirement of
the Equal Protection Clause because Dallas County’s population had grown
The court uses the term “Anglo” to refer to individuals who are Caucasian, nonHispanic.
disproportionately in Commissioners Court districts (“CCDs”) 3 and 4.
The Commissioners Court retained J. Gerald Hebert, Esquire (“Hebert”) and Rolando
L. Rios, Esquire (“Rios”) as outside redistricting counsel. Hebert, in turn, employed Matt
Angle (“Angle”), an expert on North Texas geography and demographics, to assist in
drawing and presenting redrawn district maps for consideration. During an executive
session, the Commissioners Court reviewed the configuration, demographics, and political
performance of the Benchmark Map and shared their various redistricting goals (including,
for example, Commissioner Dickey’s desire that there be a “conservative,” or “Tea Party”
district). They directed Hebert and Rios to draft and present specific redistricting criteria for
the Commissioners Court to consider, and they directed Angle to configure demonstration
plans for their review.
The Commissioners Court unanimously adopted Commissioner Precinct Redistricting
Criteria (“Redistricting Criteria”) that they determined “would help facilitate public
participation and help ensure that any adopted redistricting plans will be consistent with all
applicable law.” Ps. Tr. Ex. 15 at 1.3
In order of priority, the Redistricting Criteria are as follows:
1. Districts shall be drawn to meet the one-person, one-vote
requirements of the United States Constitution. Plans should
show the total population and voting age population, according
to the official 2010 U.S. Census, for each proposed precinct,
including subtotals for African Americans, Hispanics, Asians,
Anglos and other population groups.
2. Plans should be constructed to comply with all provisions of
Using the Redistricting Criteria, Angle prepared four demonstration maps that he
presented to the Commissioners Court during a closed session meeting. After considering
the merits of each, the Commissioners decided to present only one map (“Map A”), the
the Voting Rights Act in order to avoid legal liability.
Specifically, plans should meet all requirements of Section 5 of
the Voting Rights Act prohibiting the retrogression of racial and
language minorities and Section 2 of the Voting Rights Act
requiring the configuration of Districts that provide racial and
language minorities the opportunity to elect their candidate of
choice where their populations are sufficiently large and
3. Districts should respect population increases and take into
account population decreases in Dallas County over the last
4. To the extent possible, commissioner precincts should be
comprised of whole voting precincts (VTDs). Where this is not
possible or practical, commissioner precincts should be drawn
in a manner that permits the creation of practical voting
precincts and that ensures that adequate polling place facilities
exist in each voting precinct.
5. Plans should involve the boundaries of all precincts—not just
the boundaries of one or several precincts.
6. Where possible, but subsidiary to the equipopulation
requirements of the US Constitution and the requirements of the
Voting Rights Act, municipal and other significant geographic
boundaries should be respected.
7. Where possible, but subsidiary to the equipopulation
requirements of the US Constitution and the requirements of the
Voting Rights Act, precincts and districts should be
geographically compact and composed of contiguous territory.
Ps. Trial Ex. 15 at 2.
predecessor to the map that was ultimately adopted, to the public for consideration. The
Commissioners Court then provided notice of, and held a series of, three public hearings
related to the redistricting of the CCDs.4
During the redistricting process, Commissioner Dickey, a Republican, announced that
she would not seek reelection.
Before the Commissioners Court voted on Map A,
Commissioner Price contacted Angle and asked him to prepare an amendment that, inter alia,
switched the numbering of CCDs 1 and 2 and adjusted the boundaries between CCDs 1 and
2 in the Oak Lawn area in order to place Commissioner Dickey’s home in the renumbered
CCD 1. As a result of the exchange in district numbers, it was unnecessary for incumbent
Commissioner Cantrell to stand for reelection until 2014 (rather than 2012), and
Commissioner Dickey’s vacated seat was up for election in 2012.
By a vote of three to one (Commissioner Dickey did not vote), the Commissioners
Court adopted the 2011 Map, which Angle had drawn, as the new commissioner districts.
The Commissioners Court then submitted the 2011 Map to the U.S. Department of Justice
for preclearance under § 5 of the VRA, which was then still in effect.5 The submission
Some of the evidence at trial focused on the conduct of public officials and members
of the public at these hearings. Because the court’s decision does not turn on this evidence,
the court will not recount it.
“Section 5 of the Voting Rights Act require[d] that any change in a ‘standard,
practice or procedure with respect to voting’ by a ‘covered jurisdiction’ . . . be submitted to
the United States Attorney General for prior approval or ‘preclearance.’” E. Jefferson Coal.
for Leadership & Dev. v. Parish of Jefferson, 926 F.2d 487, 490 n.1 (5th Cir. 1991) (quoting
42 U.S.C. § 1973c & 28 C.F.R. § 51.1 et seq. (1989)). At the time the 2011 Map was
submitted for preclearance, the Supreme Court had not decided Shelby County, Alabama v.
stated, inter alia:
The new Commissioner Precinct map maintains two current
minority opportunity precincts and creates a new minority
opportunity precinct in Precinct 1. Specifically, the new map
maintains Precinct 3 as an African American opportunity
precinct. The African American population is increased in this
precinct from 45.6% to 47.9%. Precinct 4 which is currently
represented by a Hispanic, who was the candidate of choice of
minority voters in 2010, has not been retrogressed. In fact, the
current Precinct 4 is 49.3% Hispanic and 65.5% Black plus
Hispanic. The new Precinct 4 is 57.9% Hispanic and 72.1%
Black plus Hispanic. Precinct 1 is a new minority opportunity
precinct. Precinct 1 has a Hispanic population of 48.0% and is
68.4% Black plus Hispanic.
Ps. Tr. Ex. 16 at 4.
The current composition of the Commissioners Court, elected under the 2011 Map,
is as follows: Dr. Theresa Daniel (“Commissioner Daniel”) (CCD 1, Democrat);
Commissioner Cantrell (CCD 2, Republican); Commissioner Price (CCD 3, Democrat);
Commissioner Garcia (CCD 4, Democrat); and Judge Jenkins (Democrat). Two of the four
commissioners (Commissioners Cantrell and Daniel) are Anglo, as is Judge Jenkins.
Plaintiffs Harding, Jacobs, Schroer, Ray Huebner (“Huebner”), and Morgan McComb
(“McComb”)6 filed this lawsuit against defendants County of Dallas, Texas, Judge Jenkins,
Holder, 570 U.S. 529 (2013), which invalidated the coverage formula that had been used as
a basis for subjecting jurisdictions to preclearance under § 5. Id. at 557.
The court granted plaintiffs leave to file a second amended complaint adding Morse
as a plaintiff, and it later granted plaintiffs’ unopposed motions to withdraw McComb and
Huebner as plaintiffs.
and Commissioners Daniel, Cantrell, Price, and Garcia,7 alleging claims under § 2 of the
VRA and under the Equal Protection Clause of the Fourteenth Amendment. In Harding v.
County of Dallas, Texas, 2018 WL 1157166 (N.D. Tex. Mar. 5, 2018) (Fitzwater, J.)
(“Harding II”), the court dismissed plaintiffs’ racial gerrymandering and alternative equal
protection claims. Id. at *9-10. The case then proceeded to trial on the two remaining
Before turning to the merits, the court addresses defendants’ challenge to plaintiffs’
“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by
statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm’n, 138 F.3d
144, 151 (5th Cir. 1998). It is well settled that “the issue of standing is one of subject matter
jurisdiction.” Cobb v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006). The doctrine of
standing addresses the question of who may properly bring suit in federal court, and “is an
essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). It “involves both constitutional
limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth
v. Seldin, 422 U.S. 490, 498 (1975). To establish standing, a plaintiff must meet both
Judge Jenkins and the county commissioners are sued only in their official capacities.
constitutional and prudential requirements. See, e.g., Procter & Gamble Co. v. Amway
Corp., 242 F.3d 539, 560 (5th Cir. 2001).
The only issue in this case is constitutional standing, which requires that a litigant
establish three elements: (1) injury-in-fact that is concrete and actual or imminent, not
hypothetical; (2) a fairly traceable causal link between the injury and the defendant’s actions;
and (3) that the injury will likely be redressed by a favorable decision. E.g., Little v. KPMG
LLP, 575 F.3d 533, 540 (5th Cir. 2009). To obtain injunctive relief, a plaintiff must be
“likely to suffer future injury.” City of L.A. v. Lyons, 461 U.S. 95, 105 (1983). “Past
exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief[.]” O’Shea v. Littleton, 414 U.S. 488, 495 (1974). The threat of future
injury to the plaintiff “must be both real and immediate, not conjectural or hypothetical.”
Lyons, 461 U.S. at 102 (internal quotation marks omitted).
Defendants maintain that plaintiffs have failed to offer any evidence that they suffered
a cognizable injury—i.e., a particularized harm they experienced on account of their
race—that is redressable by their legal claims. They contend that
[b]ecause the only injury identified by plaintiffs was a desire for
more conservative or Republican districts, and because they
have not alleged a claim for partisan gerrymandering, plaintiffs
have no standing to challenge the [2011 Map] under the VRA or
as intentional, racial vote dilution. They have offered no
evidence of a particularized, personal injury redressable by their
legal claims. And . . . plaintiffs’ proposed plan would reduce
their opportunities to elect their candidates of choice
(Republicans), and thus the relief they seek would not redress
their (nonexistent) injuries.
Ds. Post-Trial Br. 9.
Plaintiffs respond that they clearly have standing to bring this action because the 2011
Map dilutes their voting power, intentionally and in effect, denying Anglos representation
proportional to their CVAP. Plaintiffs contend that because the 2011 Map packs Anglos into
CCD 2 and cracks them across the rest of the county, “[a]s long as the Plaintiffs are a
member of that diluted racial group, each may challenge the district in which they live and
the entire ‘redistricting plan that generated this harm.’” Ps. Br. 9.
The court has twice addressed the question of standing in this case, albeit in the
context of whether plaintiffs have pleaded standing, not whether they have proved standing.
“The facts necessary to establish standing, however, must not only be alleged at the pleading
stage, but also proved at trial.” Gill v. Whitford, ___ U.S. ___, 138 S.Ct. 1916, 1931 (2018)
(citing Lujan, 504 U.S. at 561)).
Before trial, the court held that the alleged dilution in plaintiffs’ voting strength
through the “packing and cracking” of Anglo voters in Dallas County constituted a
sufficiently cognizable injury-in-fact to challenge the 2011 Map under the VRA or the Equal
Protection Clause of the Fourteenth Amendment. See Harding II, 2018 WL 1157166, at *6,
7; Harding v. Cnty. of Dall., Tex., 2015 WL 11121002, at *1 (N.D. Tex. May 28, 2015)
(Fitzwater, J.). At trial, plaintiffs proved that the voting power of Anglos residing in CCD
2—including plaintiff Morse—has been “wasted” under the 2011 Map because 42.7% of the
Dallas County Anglo CVAP, according to the 2010 Census, is “packed” into CCD 2, creating
an Anglo supermajority (under the 2011 Map, 69.8 % of CCD 2’s CVAP is Anglo) that is
well beyond the number needed for an Anglo-preferred candidate to be elected. Plaintiffs
have also established that the voting strength of Anglos residing on CCDs 1, 3, and
4—including plaintiffs Harding, Jacobs, and Schroer—is diluted because the remaining 57.2
% of the Dallas County Anglo CVAP is “cracked” across the remaining CCDs (21.7 % in
CCD 1, 17.3 % in CCD 3, and 18.2 % in CCD 4), spreading the remaining Anglo voters
sufficiently thin to prevent them from ever electing their preferred candidates.8 See, e.g.,
Gill, 138 S.Ct. at 1935 (Kagan, J., concurring). The court therefore finds, for the reasons
explained in Harding II, 2018 WL 1157166, at *6, that each plaintiff has suffered a legally
cognizable injury that is required to prove standing.9
At trial, plaintiffs presented undisputed evidence that CCD 1’s CVAP is 42.8%
Anglo; that CCD 3’s CVAP is 30.0% Anglo; and that CCD 4’s CVAP is 37.6% Anglo.
In her concurring opinion in Gill, Justice Kagan explained regarding a partisan
[t]o have standing to bring a partisan gerrymandering claim
based on vote dilution, then, a plaintiff must prove that the value
of her own vote has been “contract[ed].” And that entails
showing, as the Court holds, that she lives in a district that has
been either packed or cracked. For packing and cracking are the
ways in which a partisan gerrymander dilutes votes. Consider
the perfect form of each variety. When a voter resides in a
packed district, her preferred candidate will win no matter what;
when a voter lives in a cracked district, her chosen candidate
stands no change of prevailing. But either way, such a citizen’s
vote carries less weight—has less consequence—than it would
under a neutrally drawn map. So when she shows that her
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Defendants contend that the Supreme Court’s recent decision in Gill “has direct
application” in this case because the Court noted that it “is not responsible for vindicating
generalized partisan preferences.” Ds. Notice of Supp. Authority 1 (quoting Gill, 138 S.Ct.
at 1933). The court agrees that Gill’s analysis is helpful, although not for the reasons
defendants suggest. In Gill, a political gerrymandering case, the Court clarified the
requirements for proving standing when the plaintiffs’ alleged injury is the dilution of their
voting strength through the drawing of district lines. Similar to the plaintiffs in this case, the
Gill plaintiffs alleged that they lived in state assembly districts in which Democrats had been
“cracked or packed,” resulting in the dilution of their voting strength. But unlike the
plaintiffs here, in the Gill trial, “not a single plaintiff sought to prove that he or she live[d]
in a cracked or packed district.” Id. at 1932. Instead, the plaintiffs attempted to prove
standing based on a “statewide injury to Wisconsin Democrats,” id., arguing that “regardless
of ‘whether they themselves reside in a district that has been packed or cracked,’ they have
been ‘harmed by the manipulation of district boundaries’ because Democrats statewide ‘do
not have the same opportunity provided to Republicans to elect representatives of their
choice to the [Wisconsin State] Assembly.’” Id. at 1924 (citations omitted). The Court
rejected this theory of standing, explaining: “the plaintiffs’ partisan gerrymandering claims
turn on allegations that their votes have been diluted. That harm arises from the particular
district has been packed or packed, she proves, as she must to
establish standing, that she is “among the injured.”
Gill, 138 S.Ct. at 1936 (Kagan, J., concurring) (citations omitted).
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composition of the voter’s own district, which causes his vote—having been packed or
cracked—to carry less weight than it would carry in another, hypothetical district.” Id. at
1930-31. Because the Gill plaintiffs failed to produce district-specific evidence that their
individual voting strength had been diluted as a result of the districting plan at issue, the
Court held that they had failed to prove an “individual and personal injury of the kind
required for Article III standing.” Id. at 1931.
By contrast, as explained above, the plaintiffs in the instant case have alleged and
proved that they are Anglos and that each resides in a district where, as a result of alleged
“cracking and packing,” the voting strength of the Anglo CVAP has been diluted.
Defendants also maintain that plaintiffs cannot meet the “redressability” requirement
of constitutional standing. They posit that because plaintiffs’ “proposed plan would reduce
their opportunities to elect their candidates of choice (Republicans), . . . the relief they seek
would not redress their (nonexistent) injuries.” Ds. Post-Trial Br. 9. Defendants’ argument,
however, goes to the merits of plaintiffs’ claims rather than to the ability of the court to
address plaintiffs’ alleged injury.
Plaintiffs have established a judicially cognizable
injury—that the 2011 Map dilutes the strength of their vote through the cracking and packing
of Anglo Dallas County CVAP—that is capable of being redressed by the relief they seek:
a declaration that the 2011 Map is unconstitutional and violates the VRA, and an injunction
prohibiting defendants from implementing the 2011 Map and requiring defendants or the
court to create a replacement map that contains a second Anglo-opportunity CCD. See, e.g.,
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Three Expo Events, L.L.C. v. City of Dallas, Tex., 182 F.Supp.3d 614, 621 (N.D. Tex. 2016)
(Fitzwater, J.) (concluding that redressability element of standing was adequately pleaded
at preliminary injunction stage where plaintiff alleged a constitutional injury “that is capable
of being redressed by the relief [the plaintiff] seeks.”).
Accordingly, the court concludes that plaintiffs have established by a preponderance
of the evidence that they have Article III standing to bring their VRA and equal protection
claims based on the dilution of their voting power that resulted from the 2011 Map.
Although the court concludes below that plaintiffs’ vote dilution claims fail on the merits,
it nevertheless holds that plaintiffs have sufficiently established an injury-in-fact for standing
purposes by pleading a judicially cognizable injury, i.e. vote dilution, and by adducing
evidence that the Anglo population has been dispersed unevenly (concentrated in CCD 2 and
spread out among the other CCDs) throughout the four CCDs.
But even if the court is in error in holding that plaintiffs have proved Article III
standing, the outcome of this case is the same. Regardless whether for lack of standing or
for lack of merit, plaintiffs’ case must be dismissed.
The court now turns to the merits and addresses plaintiffs’ vote dilution claim under
§ 2 of the VRA.
“In 1982 Congress substantially revised § 2 of the Voting Rights Act to clarify that
a violation requires evidence of discriminatory effects alone, and to make clear that proof of
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discriminatory intent is not required to establish a violation of Section 2.” Benavidez v.
Irving Indep. Sch. Dist., Tex., 690 F.Supp.2d 451, 455 (N.D. Tex. 2010) (Fitzwater, C.J.)
(internal quotation marks omitted) (quoting League of United Latin Am. Citizens # 4434
(LULAC) v. Clements, 986 F.2d 728, 741 (5th Cir. 1993) (“LULAC”)). Section 2(b) now
provides that the Act is violated 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 equally open to participation by
[a class of persons of a certain race or color] 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
52 U.S.C. § 10301(b).
In Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court first considered the
1982 amended version of § 2, setting out the current framework for analyzing § 2 cases.
To prevail on a § 2 claim, a plaintiff must first prove that (1) the
minority group is “sufficiently large and geographically compact
to constitute a majority in a single member district,” (2) the
minority group “is politically cohesive,” and (3) “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
Benavidez, 690 F.Supp.2d at 455 (citations omitted) (quoting Gingles, 478 U.S. at 50-51).
“Failure to establish any one of the Gingles factors precludes a finding of vote dilution,
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because these circumstances are necessary preconditions for multimember districts to operate
to impair minority voters’ ability to elect representatives of their choice.” Id. (internal
quotation marks and brackets omitted) (quoting LULAC, 986 F.2d at 743). “[The Fifth
Circuit] has interpreted the Gingles factors as a bright line test.” Id. at 456 (alteration in
original) (quoting Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 852 (5th Cir.
1999)). “Each factor must be proved. Failure to establish any one of these threshold
requirements is fatal.” Id. (citations, brackets, and some internal quotation marks omitted)
(quoting Valdespino, 168 F.3d at 852).
If a plaintiff meets the threshold Gingles test, the court must
then engage in a broader “totality of the circumstances” inquiry,
considering whether the minority group has demonstrated that
“under the totality of the circumstances, ‘its members have less
opportunity than other members of the electorate to participate
in the political process and to elect representatives of their
Id. at 456 n.7 (quoting LULAC, 986 F.2d at 747). “In conducting this broad inquiry, a court
must be ‘flexible in its totality inquiry and guided by factors drawn from the Senate Judiciary
Committee report on the 1982 amendments to the Voting Rights Act and reference Zimmer
v. McKeithen, 485 F.2d 1297 (5th Cir. 1973).’”10 Fabela v. City of Farmers Branch, Tex.,
The factors to be considered when evaluating the totality of the circumstances
 the history of voting-related discrimination in the State or
 the extent to which voting in the elections of the State or
political subdivision is racially polarized;
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2012 WL 3135545, at *3 (N.D. Tex. Aug. 2, 2012) (Fitzwater, C.J.) (quoting Teague v.
Attala Cnty., Miss., 92 F.3d 283, 292 (5th Cir. 1996)). This list of factors is not exhaustive,
however, and “there is no requirement that any particular number of factors be proved, or that
a majority of them point one way or the other.” Gingles, 478 U.S. at 45 (quoting S. Rep. No.
97-417, at 29 (1982)). Moreover, “[n]ot every factor will be relevant in every case.” Veasey
 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[;]
 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
 the extent to which members of the minority group have
been elected to public office in the jurisdiction[;]
 evidence demonstrating that elected officials are
unresponsive to the particularized needs of the members of the
 [evidence] that the policy underlying the State’s or the
political subdivision’s use of the contested practice or structure
 whether the number of districts in which the minority group
forms an effective majority is roughly proportional to its share
of the population in the relevant area[.]
Fairley v. Hattiesburg, Miss., 584 F.3d 660, 672-73 (5th Cir. 2009) (alterations in original)
(quoting League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 426 (2006)
(“LULAC v. Perry”)).
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v. Abbott, 830 F.3d 216, 246 (5th Cir. 2016) (en banc). Rather, “the proper assessment of
vote dilution claims is ‘peculiarly dependent upon the facts of each case’ and requires ‘an
intensely local appraisal of the design and impact of the contested electoral mechanisms.’”
Rodriguez v. Bexar Cnty., Tex., 385 F.3d 853, 860 (5th Cir. 2004) (quoting Gingles, 478 U.S.
at 79). “A plaintiff must prove a § 2 violation by a preponderance of the evidence.”
Benavidez, 690 F.Supp.2d at 456 (citing League of United Latin Am. Citizens # 4552
(LULAC) v. Roscoe Indep. Sch. Dist., 123 F.3d 843, 846 (5th Cir. 1997)).11
Under the first prong of Gingles, plaintiffs must prove that the Anglo population in
Dallas County is “sufficiently large and geographically compact to constitute a majority in
a single member district.” LULAC, 986 F.2d at 742. To satisfy this requirement, plaintiffs
must establish that there is a potential single member district in which a majority of the
CVAP is Anglo. See id. at 743; Reyes v. City of Farmers Branch, Tex., 586 F.3d 1019, 1023
(5th Cir. 2009) (holding that only CVAP is relevant in evaluating first prong of Gingles). In
Bartlett v. Strickland, 556 U.S. 1 (2009) (plurality opinion), the Supreme Court considered
the “minimum-size question,” concluding that the majority-minority rule “relies on an
objective, numerical test: Do minorities make up more than 50 percent of the voting-age
Although the court does not repeat the preponderance of the evidence standard in
this memorandum opinion, all of its findings of fact are based upon a preponderance of the
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population in the relevant geographic area?”
Id. at 13, 18.
“That rule provides
straightforward guidance to courts and to those officials charged with drawing district lines
to comply with § 2.” Id. This requirement is essential to demonstrate that “minority voters
possess the potential to elect representatives[.]” Gingles, 478 U.S. at 50 n.17.
Plaintiffs rely on the expert testimony of Peter Morrison, Ph.D. (“Dr. Morrison”)12 to
establish the first prong of Gingles.13 Using data from the 2010 Census full-count PL94-171
and the 2014 5-year American Community Survey (“ACS”), Dr. Morrison proposes an
alternative to the 2011 Map, in which Anglos constitute a majority of the CVAP in two
commissioner districts. Dr. Morrison’s map, which he refers to as the “Remedial Plan,”
distributes Dallas County’s CVAP as illustrated in the following table:
Dr. Morrison is an applied demographer who previously worked as Senior
Demographer and founding director of the RAND Corporation’s Population Research Center.
“As is commonly the case in § 2 litigation, [plaintiffs’] claim turns on the expert
witnesses’ factual testimony.” Benavidez, 690 F.Supp.2d at 457 n.9 (quoting the statement
in LULAC, 986 F.2d at 736, that “[a]s with all cases under the Voting Rights Act, this one
is driven by the facts.”).
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Remedial Plan (2018 implementation)
Citizen Voting-age Population 2010-14
Total deviation from ideal: 4.29%
Share of Total CVAP
Sources: 2010 Census, PL94-171 file; 2014 5-year ACS file.
Ps. Tr. Ex. 68 at 12. Under Dr. Morrison’s Remedial Plan, Anglos constitute more than 50%
of the CVAP in two of the four commissioner districts (i.e., CCDs 2 and 4 in the Remedial
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Under the second and third prongs of Gingles, plaintiffs must prove that Anglo voters
are “politically cohesive” and that the non-Anglo 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
(citations omitted). “Racially polarized voting, i.e., ‘where there is a consistent relationship
between [the] race of the voter and the way in which the voter votes,’ is relevant to a vote
dilution claim.” Fabela, 2012 WL 3135545, at *8 (alteration in original) (some internal
quotation marks omitted) (quoting Gingles, 478 U.S. at 53 n.21 & 56). It tends to prove that
the “minority group members constitute a politically cohesive unit,” under the second
Gingles prong, and that they are unable to elect representatives of their choice because, under
the third Gingles prong, the majority group is similarly politically cohesive and votes
“sufficiently as a bloc usually to defeat the minority’s preferred candidates.” Gingles, 478
U.S. at 56; see also, e.g., Westwego Citizens for Better Gov’t v. City of Westwego, 872 F.2d
1201, 1207 (5th Cir. 1989) (“Evidence of racially polarized voting ‘is the linchpin of a
section 2 vote dilution claim’ and is relevant to establishing [the second and third elements]
. . . in Gingles [.]” (citations omitted)). “Because . . . the extent of bloc voting necessary to
demonstrate that a minority’s ability to elect its preferred representatives is impaired varies
according to several factual circumstances, the degree of bloc voting which constitutes the
threshold of legal significance will vary from district to district.” Gingles, 478 U.S. at 55-56.
- 20 -
A showing that a significant number of minority group members
usually vote for the same candidates is one way of proving the
political cohesiveness necessary to a vote dilution claim, and,
consequently, establishes minority bloc voting within the
context of § 2. And, in general, a [majority] bloc vote that
normally will defeat the combined strength of minority support
plus [majority] “crossover” votes rises to the level of legally
significant [majority] bloc voting. The amount of [majority]
bloc voting that can generally “minimize or cancel,” [minority]
voters’ ability to elect representatives of their choice, however,
will vary from district to district according to a number of
factors, including the nature of the allegedly dilutive electoral
mechanism; the presence or absence of other potentially dilutive
electoral devices, such as majority vote requirements, designated
posts, and prohibitions against bullet voting; the percentage of
registered voters in the district who are members of the minority
group; the size of the district; and, in multimember districts, the
number of seats open and the number of candidates in the field.
Id. at 56 (citations omitted).
To prove the second and third prongs of Gingles, plaintiffs rely on the expert report
of M.V. (Trey) Hood III, Ph.D. (“Dr. Hood”). In his report, Dr. Hood analyzes election
results from six contested endogenous elections (i.e., county commissioner elections from
2006, 2010, 2012, and 2016) and from three14 contested exogenous elections (i.e., Dallas
County Judge elections from 2006, 2010, and 2014). Based on his analysis, Dr. Hood
concludes that, for each of these elections, there was a “clear candidate of choice for Anglo
voters,” Ps. Tr. Ex. 69 at 16, which he defines to be “present in a race when a majority
Because Dr. Hood has analyzed election results from each CCD for the three Dallas
County Judge elections he considered, he maintains that he has analyzed 12 exogenous
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(>50%) of Anglo voters are shown to support a particular candidate,” id. at 6 n.8, and that
the Anglo candidate of choice is usually defeated (in 5 of 6 endogenous elections) by a nonAnglo majority voting bloc.
To estimate the share of each racial/ethnic group voting for a candidate in a specific
contest, Dr. Hood relies on what he considers to be two commonly used statistical techniques
for evaluating § 2 vote dilution claims: Ecological Regression (“ER”) and Ecological
Inference (“EI”). Dr. Hood’s findings with respect to the commissioner elections he
considered are summarized in the following tables:
2006 County Commissioners Court Election, District 4
*Mayfield won this election.
2010 County Commissioners Court Election, District 4
*Garcia won this election.
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2012 County Commissioners Court Election, District 1
*Daniel won this election.
2012 County Commissioners Court Election, District 3
*Price won this election.
2016 County Commissioners Court Election, District 1
*Daniel won this election.
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2016 County Commissioners Court Election, District 3
*Price won this election.
See Ps. Tr. Ex. 69 at 7-10.
Dr. Hood also analyzed the “exogenous, but closely related” County Judge elections
from 2006, 2010, and 2014, offering evidence that Anglo support for the Republican
candidate in these three elections ranged from 60.9% to 94.4%, with a mean of 72.98%.
The purpose of the Gingles analysis is to “establish that ‘the minority [group] has the
potential to elect a representative of its own choice’ in a possible district, but that racially
polarized voting prevents it from doing so in the district as actually drawn because it is
‘submerg[ed] in a larger [majority race] voting population.’” Cooper v. Harris, ___ U.S.
___, 137 S. Ct. 1455, 1470 (2017) (emphasis and some alterations added) (quoting Growe
v. Emison, 507 U.S. 25, 40 (1993)). Conversely, where the minority group is either too small
or insufficiently compact or cohesive to have any real opportunity to elect a candidate of its
- 24 -
choice in a possible district, there has been no violation of § 2.
The reason that a minority group making such a challenge must
show, as a threshold matter, that it is sufficiently large and
geographically compact to constitute a majority in a
single-member district is this: Unless minority voters possess the
potential to elect representatives in the absence of the
challenged structure or practice, they cannot claim to have been
injured by that structure or practice.
Gingles, 478 U.S. at 50 n.17.
Under Gingles, the ultimate question is whether a districting
decision dilutes the votes of minority voters, and it is hard to see
how this standard could be met if the alternative to the
districting decision at issue would not enhance the ability of
minority voters to elect the candidates of their choice.
Abbott v. Perez, ___ U.S. ___, 138 S.Ct. 2305, 2332 (2018); see id. (“So if Texas could not
create two performing districts in Nueces County . . . the logical result is that Texas did not
dilute the Latino vote.”); see also, e.g., Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 480
(1997) (“Because the very concept of vote dilution implies—and, indeed, necessitates—the
existence of an ‘undiluted’ practice against which the fact of dilution may be measured, a §
2 plaintiff must also postulate a reasonable alternative voting practice to serve as the
benchmark ‘undiluted’ voting practice.” (citing Holder v. Hall, 512 U.S. 874, 881 (1994))).
In the present case, even if the court assumes that plaintiffs have satisfied each of the
three Gingles prongs,15 the court still finds that they have failed to prove the “ultimate
Defendants dispute that plaintiffs have met their burden to establish the first prong
of Gingles. They maintain that, although it is mathematically possible to draw an additional
majority-minority CVAP district, the first prong of Gingles “ultimately focuses on whether
such a district would ‘elect candidates of [the minority group’s] choice,’” Ds. Post-Trial Br.
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question” of vote dilution under § 2 because they have not proved that the minority group
(i.e., Anglos) “has the potential to elect a [Republican],” which plaintiffs maintain would be
the Anglo candidate of choice, in a possible second commissioner district. See Cooper, 137
S.Ct. at 1470. In fact, for the reasons explained below, the evidence as a whole demonstrates
just the opposite.
In their Remedial Plan, plaintiffs propose a map in which Anglos constitute a majority
(65.2% and 55.1%) in two districts (Remedial Plan districts 2 and 4, respectively). In
at 10 (alteration in original) (quoting Johnson v. De Grandy, 512 U.S. 997, 1008 (1994)), and
plaintiffs have failed to show that their proposed Anglo majority districts will functionally
perform to give Anglo voters an opportunity to elect their candidates of choice. Although
defendants’ argument makes sense, the court has not found any authority for the proposition
that plaintiffs must prove that their proposed map will perform for the minority group in
order to meet the first prong of Gingles. In De Grandy, on which defendants rely, the
Supreme Court stated that “[w]hen applied to a claim that single-member districts dilute
minority votes, the first Gingles condition requires the possibility of creating more than the
existing number of reasonably compact districts with a sufficiently large minority population
to elect candidates of its choice.” De Grandy, 512 U.S. at 1008 (emphasis added). But in
that case, the Court performed no analysis under the first prong of Gingles: it “assum[ed]
without deciding that even if Hispanics are not an absolute majority of the relevant
population in the additional districts, the first Gingles condition has been satisfied.” Id. at
1009. Defendants also quote language from LULAC v. Perry, 548 U.S. at 428, in which the
Court stated that “it may be possible for a citizen voting-age majority to lack real electoral
opportunity.” Id. But in LULAC v. Perry the Court did not require plaintiffs to demonstrate
that they would have been able to elect their candidate of choice under their proposed district
(i.e., the district that existed before the State redistricted). In fact, the Court explicitly stated,
in the context of its analysis of the first prong of Gingles, that “[t]he circumstance that a
group does not win elections does not resolve the issue of vote dilution. We have said that
‘the ultimate right of § 2 is equality of opportunity, not a guarantee of electoral success for
minority-preferred candidates of whatever race.’” LULAC v. Perry, 548 U.S. at 428 (quoting
De Grandy, 512 U.S. at 1014 n.11).
- 26 -
creating these two Anglo opportunity districts, however, plaintiffs have failed to account for
the undisputed facts that roughly 23% of Dallas County’s Anglo population votes for
Democrat candidates and that a large portion of these Anglo Democrats reside in Remedial
Plan districts 2 and 4.
Defendants’ expert, Angle, concludes in his October 13, 2017 Report (“Rebuttal
Report”)16 that plaintiffs cannot show that the two Anglo majority districts they propose (i.e.
Remedial Plan districts 2 and 417) will provide a legitimate opportunity to elect two
Republicans. This is because although Remedial Plan districts 2 and 4 have a majority Anglo
CVAP, the configurations of the districts include neighborhoods that are not reliably
Republican, with both Anglo and minority voting populations that may support minoritypreferred Democrat candidates.
Angle begins with Remedial Plan district 2, explaining that rather than extending east
along the northern boundary of Dallas County, taking in reliably Republican neighborhoods
before moving south to pick up north Dallas and the Park Cities, Remedial Plan district 2
includes the Democrat neighborhoods around Love Field, south Richardson, Hamilton Park,
Angle also submitted a supplemental report dated March 16, 2018, which plaintiffs
have moved to strike on the ground that it does not constitute “supplementation” but is,
instead, an untimely disclosure that should be stricken under Fed. R. Civ. P. 37(c)(1). The
court deferred a ruling on the motion to strike and now denies it as moot because the court
has not considered Angle’s March 16, 2018 supplemental report in deciding this case.
In Angle’s Rebuttal Report, the district numbering used on the Remedial Plan differs
from the numbering Dr. Morrison uses in his expert report. For purposes of this
memorandum opinion, the court uses the Remedial Plan district numbering found on page
13 of Dr. Morrison’s expert report, Ps. Tr. Ex. 68.
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and Oak Lawn. The proposed district removes approximately 219,258 persons from current
CCD 2, 46.5% of whom supported Democrat candidate Hillary Clinton (“Secretary Clinton”)
for President in the 2016 General Election, and 43.9% of whom supported Democrat
candidate Lupe Valdez (“Sheriff Valdez”) for Sheriff in the 2016 General Election. And it
adds approximately 260,209 persons who were not included in current CCD 1, 67.7% of
whom supported Secretary Clinton in the 2016 General Election and 63.3% of whom
supported Sheriff Valdez in the 2016 General Election.
Plaintiffs’ other proposed Anglo district, Remedial Plan district 4, begins in the
relatively strong Republican area of north Richardson, but extends south to include nearly
all of the marginally Democrat suburb of Mesquite, west to include the strongly Democrat
city of Balch Springs, and westward to I-45, picking up parts of the Democrat suburbs of
Wilmer and Hutchins. In configuring Remedial Plan district 4, plaintiffs have removed
approximately 354,831 persons from current CCD 2. Of the removed population, 49.2%
supported Secretary Clinton in the 2016 General Election, and 44.1% supported Sheriff
Valdez. Of the approximately 373,782 persons added to Remedial Plan district 4, 57.7%
supported Secretary Clinton and 57.4% supported Sheriff Valdez in the 2016 General
In sum, Angle persuasively explains that districts 2 and 4 in the Remedial Plan split
the neighborhoods in the northern part of Dallas county that most reliably support
Republicans and add to each district neighborhoods with growing minority populations and
growing Democrat strength.
- 28 -
Angle opines that, had the Remedial Plan been adopted by the Commissioners Court
in 2011, it is likely that Democrat party leaders would have targeted all four districts, and it
is possible that all four commissioner districts might now be represented by Democrats. To
support this prediction, Angle compares election results from the 2016 General Election18 to
the Remedial Plan, demonstrating that, although the Anglo candidate of choice (i.e., the
Republican candidate) carried CCD 2 in the 2016 General Election under the 2011 Map,
Democrat candidates Secretary Clinton and Sheriff Valdez would have carried all four
commissioner districts under the Remedial Plan.
2011 Map (Current Commissioners Court)
At trial, plaintiffs objected to defendants’ use of data from the 2016 General
Election. They contended, inter alia, that they did not have time to have their experts
analyze these data so that they could provide more than a “common sense rebuttal” to this
court. Closing Argument Tr. 24. Angle’s Rebuttal Report, however, which contains his
predictions using the 2016 General Election data, is dated October 13, 2017, well before the
date the trial commenced.
- 29 -
Defendants’ political science expert, Matthew Barreto, Ph.D., similarly opines that
plaintiffs’ proposed Remedial Plan would lead to a decrease in the opportunities for Anglo
Republican voters, explaining in his October 13, 2017 Rebuttal Report:
[u]nder the current districting plan, Anglo voters have shown the
ability to elect candidates of choice in district 2, including
Commissioner Mike Cantrell. However, the changes to district
2 proposed by Morrison represent a clear retrogression, creating
a district that Anglos would be in jeopardy of losing and, as
importantly, failing to protect the incumbent, a traditional
redistricting principle historically allowed by the courts and
followed by Dallas County. For example, under the current
district boundaries, Republican Donald Trump carried District
2 in 2016 49.2% to 45.9% over Democrat Hillary Clinton.
However, under the districting plan proposed by Morrison[,]
Trump would have lost the district to Clinton (46.4% for Trump
and 49.4% for Clinton). This change from winning the district
by 3 points, to losing the district by 3 points is a clear
retrogression to Anglo voting strength in District 2 (Cantrell).
In the 2016 County Judge race, Natinsky won 60.2% of the
votes. However, under the new redistricting proposal submitted
by Morrison the percent for the Anglo-preferred Natinsky drops
The court has used the figures from Angle’s chart, but has adjusted the district
numbering to match the numbering used in Dr. Morrison’s report.
- 30 -
to 55.7%, more evidence of retrogression.
Ds. Tr. Ex. 63 at 11-12.
Defendants posit that plaintiffs have unsuccessfully tried to craft their Remedial Plan
using the approximately 23% of Anglos who historically support Democrats along with the
remainder who support Republicans to meet a bare 50% Anglo CVAP threshold in two
districts. Defendants argue, and the court agrees, that the only evidence the court has before
it shows that doing this results in two districts that will likely perform for Democrats. Simply
put, although there may be a sufficient number of Anglos residing in Dallas County to draw
two districts with Anglo CVAP majorities, because approximately 23% of Anglos in the
county typically support Democrats, and because all Anglos are not concentrated in one area
of the County, dividing up the Anglo population that is concentrated in north Dallas County
between two districts in an area where Democrat-leaning African American and Hispanic
voters also live results in two districts that are likely to elect Democrats.
Plaintiffs contend that they do not have to prove “functionality” in order to prevail on
their § 2 claim, but, instead, they only have to show that an alternate map could be drawn that
“guarantees the right of equal access without dilution.” Closing Arguments Tr. 27. They cite
Johnson v. De Grandy, 512 U.S. 997 (1994), and Fifth Circuit authority for the proposition
that they “need not show that Anglos will ultimately succeed at the polls if their
demonstrative map (or one like it) were enacted,” and that “[t]he goal of § 2 is to guarantee
minorities an equal opportunity, through a fair electoral process.” Ps. Post-Trial Br. 28-29;
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see id. at 29 (arguing that “§ 2 protects only that opportunity, ‘not the right to vote for the
winning candidate.’” (quoting Nevett v. Sides, 571 F.2d 209, 236 (5th Cir. 1978))). The court
does not disagree with plaintiffs’ position that § 2 does not require them to guarantee that
an Anglo candidate of choice would prevail under their Remedial Plan. In fact, the Supreme
Court has expressly stated that “the ultimate right of § 2 is equality of opportunity, not a
guarantee of electoral success for minority-preferred candidates of whatever race.” De
Grandy, 512 U.S. at 1014 n.11; see also League of United Latin Am. Citizens (LULAC) v.
Perry, 548 U.S. 399, 428 (2006) (“LULAC v. Perry”) (same). But § 2 does require that
plaintiffs prove that district lines can be drawn in a way that gives them an equal opportunity
to elect their candidate of choice. See Gingles, 478 U.S. at 47 (“The essence of a § 2 claim
is that a certain electoral law, practice, or structure interacts with social and historical
conditions to cause an inequality in the opportunities enjoyed by black and white voters to
elect their preferred representatives.”); see also Rodriguez v. Harris Cnty., Tex., 964
F.Supp.2d 686, 698 (S.D. Tex. 2013) (“Ultimately, the right to undiluted voting strength,
provided by Section 2, is a guarantee of equal opportunity in voting, ensuring that a minority
group is not denied, on account of race, color, or language minority status, the opportunity
to exercise an electoral power that is commensurate with its population in the relevant
jurisdiction.” (citations omitted)). Plaintiffs have failed to make this showing because their
candidate of choice is a Republican, and there are not a sufficient number of Anglo
Republicans to elect a Republican candidate in more than one commissioner district.
- 32 -
Plaintiffs contend that they have demonstrated that it was possible for Dallas County
to have adopted a map that would have respected plaintiffs’ rights under § 2. They maintain
that their expert, Dr. Hood, provided “irrefutable evidence that Anglos in Dallas County are
politically cohesive at the County Commissioner Court level of government, always voting
as a bloc.” Ps. Post-Trial Br. 29. They criticize defendants for relying on exogenous election
data (i.e., the 2016 General Election) to show that creating a second Anglo opportunity
district would not give Dallas County Anglos an opportunity to elect a second Republican
to the Commissioners Court if the district lines were redrawn. Plaintiffs maintain that
regardless whether Secretary Clinton would have carried a redrawn district in the 2016
General Election, this “has nothing to do with the Commissioners Court level of
government,” and that “[i]t is possible for somebody at one level of government to win from
one political party but in that same area for a person to be represented by a member of a
different political party at another level of government.” Closing Arguments Tr. 24.
The results of Dr. Hood’s analysis are set out above. See supra § III(B)(3). They
show that, under the 2011 Map, in CCDs 3 and 4, Anglo voters’ support for Republican
candidates in the endogenous Commissioners Court elections has ranged from roughly 72.5%
to 92.2%, with a mean of 83.65%, and Anglo voters’ support for Democrat candidates has
ranged from 3.6% to 19%, with a mean of 12.7%. With respect to CCD 1, however, Anglo
support for Republican candidates has been significantly lower, ranging from 62% to 70.8%,
with a mean of 66.4%; Anglo support for Democrat candidates has ranged from 29.2% to
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30.8%, with a mean of 33.6%. Plaintiffs rely on these election results to demonstrate Anglo
cohesiveness. And perhaps they do show that Anglos as a whole (or at least Anglos in CCDs
3 and 4) do vote cohesively. But the election results on which Dr. Hood relies fail to take
into account the geographical dispersion of Anglo Democrats and the high concentration of
these types of voters in the neighborhoods plaintiffs would include in their proposed “Anglo
opportunity” districts. If the Anglos whom plaintiffs are using to create majorities in their
proposed “Anglo opportunity” districts (districts 2 and 4 in Dr. Morrison’s Remedial Plan)
are the 12.7% of Anglos residing in CCDs 3 and 4 who prefer Democrat Commissioners
Court candidates and the 33.6% of Anglos residing in CCD 1 who prefer Democrat
candidates, and if the Republican Anglos are split between two districts, each of which also
includes African American and Hispanic populations who reliably vote for Democrat
candidates, the “Anglo opportunity” districts plaintiffs have created in their Remedial Plan
will not, in fact, provide Republican Anglos with any meaningful opportunity to elect
Republicans to the Commissioners Court. Indeed, as discussed above, defendants’ evidence
To the extent plaintiffs criticize defendants’ reliance on data from the 2016 General
Election, the court agrees that endogenous election results would have been more persuasive
in assessing the functionality of plaintiffs’ Remedial Plan than results from the 2016 General
Election. See, e.g., Rodriguez, 964 F.Supp.2d at 759 (“Endogenous elections, or contests
within the jurisdiction and for the particular office that is at issue, are more probative than
exogenous elections.”). Exogenous election results, however, are not irrelevant. See, e.g.,
- 34 -
id. (“Nevertheless, exogenous elections—i.e. elections in a district for positions that are not
exclusively representative of that district—are probative on the question of vote dilution and
should be considered by the district court.” (citations omitted). Regardless, plaintiffs did not
offer any evidence at trial that would show how Republican candidates would fare in
commissioner elections under their Remedial Plan. In fact, plaintiffs offered no evidence or
analysis of any election using their proposed Remedial Plan. Dr. Morrison testified that he
had no opinion as to whether Anglo voters would have the opportunity to elect their
candidates of choice under the Remedial Plan, see Trial Tr. 2:116-17, and plaintiffs’ political
science expert, Dr. Hood, did not perform this analysis either, see Trial Tr. 3:37, 42.
It is plaintiffs’ burden to prove that the 2011 Map violates § 2 of the VRA. See
Benavidez, 690 F.Supp.2d at 456. Plaintiffs have not presented evidence regarding the
“functionality” of their proposed Remedial Plan, and have failed to prove that it is even
possible to create two commissioner districts in which Dallas County Anglos would have an
opportunity to elect a Republican (which plaintiffs maintain is the Anglo candidate of
In sum, to prevail on their § 2 vote dilution claim, plaintiffs must “establish that ‘the
minority [group] has the potential to elect a representative of its own choice’ in a possible
district, but that racially polarized voting prevents it from doing so in the district as actually
drawn.’” Cooper 137 S. Ct. at 1470 (emphasis added) (quoting Growe, 507 U.S. at 40).
Plaintiffs have failed to meet their burden to show that the CCDs in Dallas County could be
- 35 -
redrawn to create a second district in which Anglo voters have the potential to elect a
Republican candidate to the Commissioners Court. As the Supreme Court stated in Gingles,
the analysis of a § 2 vote dilution claim “is peculiarly dependent upon the facts of each case
and requires an intensely local appraisal of the design and impact of the contested electoral
mechanisms.” Gingles, 478 U.S. at 79 (internal quotation marks and citations omitted).
Here, based on the evidence presented at trial, the court finds that plaintiffs have not shown,
given the political makeup of the Dallas County Anglo CVAP and the geographical
distribution of Dallas County Anglo Republicans, that they have the potential to elect a
Republican in a second commissioner district. In other words, because plaintiffs have failed
to produce any evidence at trial that the Commissioners Court could have created two
performing districts for Anglo Republicans, “the logical result is that [defendants] did not
dilute the [Anglo Republican] vote.” Abbott, 138 S.Ct. 2332. In fact, if anything, the
evidence shows that plaintiffs’ voting power has been strengthened, rather than diluted, by
the concentration of Anglos in CCD 2 where they can reliably elect a Republican candidate.
Accordingly, the court finds that plaintiffs have not proved their § 2 vote dilution claim.
The court now turns to plaintiffs’ equal protection claim, which is based on the
allegation that the Commissioners Court intentionally designed the 2011 Map to reduce and
lessen Dallas Anglos’ electoral opportunities significantly below the level of opportunities
that would have been available under a map compliant with neutral principles, and that “[t]he
 Map was intentionally crafted to allow Dallas’s ethnic majority coalition to dominate
- 36 -
the Commissioners Court beyond what their voting power and geographic distribution would
otherwise suggest and to deny Dallas’s Anglos the chance to meaningfully participate in the
choice of any commissioner outside of CCD 2.” 2d Am. Compl. ¶ 31.
To obtain relief on a vote dilution claim under the Fourteenth Amendment, plaintiffs
must “prove that the purpose and operative effect” of the challenged election scheme “is to
dilute the voting strength of [minority] citizens.” Voter Info. Project, Inc. v. City of Baton
Rouge, 612 F.2d 208, 212 (5th Cir. 1980) (emphasis added); see also Davis v. Bandemer, 478
U.S. 109, 127 (1986) (plurality opinion) (stating that a plaintiff alleging a violation of the
Equal Protection Clause of the Fourteenth Amendment must “prove both intentional
discrimination against an identifiable political group and an actual discriminatory effect on
that group”). In other words, while § 2 requires only that the plaintiff prove that a particular
voting practice resulted in a discriminatory effect, the Equal Protection Clause requires proof
of “both intentional discrimination . . . and an actual discriminatory effect,” Davis, 498 U.S.
To prove discriminatory effect, a plaintiff must establish that the election scheme
impermissibly dilutes the voting rights of the racial minority. Rodriguez, 964 F.Supp.2d at
801. Generally, this requires proof that the racial minority’s voting potential has been
minimized or canceled out or the political strength of such a group has been adversely
affected. Id. (citing City of Mobile, Ala. v. Bolden, 446 U.S. 55, 66 (1980)). Several courts
that have addressed the issue have held that a “the identification of a reasonable benchmark
against which to measure the challenged voting practice is necessary to show the requisite
- 37 -
discriminatory effect for . . . Equal Protection voting claims, just as it is for § 2 claims.”
Lopez v. City of Houston, 2009 WL 1456487, at *18 (S.D. Tex. May 22, 2009); see also
Rodriguez, 964 F.Supp.2d at 801 (“Plaintiffs alleging vote dilution [under the Fourteenth
Amendment] must offer ‘a reasonable alternative voting practice to serve as the benchmark
“undiluted” voting practice.’” (quoting Reno, 510 U.S. at 480)); see also, e.g., Gingles, 478
U.S. at 50 n.17 (“Unless minority voters possess the potential to elect representatives in the
absence of the challenged structure or practice, they cannot claim to have been injured by
that structure or practice.”).
Although the court does not suggest that a plaintiff who is unable to prove a § 2 vote
dilution claim can never prevail on a Fourteenth Amendment equal protection claim,20 it
holds that given plaintiffs’ failure in this case to prove that the 2011 Map actually diluted
their voting strength, their equal protection claim must fail.
The Eleventh Circuit has indicated in dicta that it is unlikely that a plaintiff who is
unable to prove a § 2 violation can prevail on a constitutional claim challenging the same
allegedly dilutive voting practice. See, e.g., Johnson v. DeSoto Cnty. Bd. of Comm’rs, 204
F.3d 1335, 1344-45 (11th Cir. 2000) (“[W]e question, as a legal proposition, whether vote
dilution can be established under the Constitution when the pertinent record has not proved
vote dilution under the more permissive section 2.”); NAACP v. City of Opelika, 748 F.2d
1473, 1478 n.7 (11th Cir. 1984) (“[I]f the plaintiffs cannot prevail under the generally more
easily proved ‘results’ standard of section 2, it is unlikely that they could prevail on their
constitutional claims in any event.”). A member of this court has also noted that “[i]t is
unclear whether a plaintiff challenging an electoral system . . . can establish a constitutional
vote dilution claim where a Section 2 VRA claim has failed.” Reyes v. City of Farmers
Branch, Tex., 2008 WL 4791498, at *19 (N.D. Tex. Nov. 4, 2008) (O’Connor, J.), aff’d, 586
F.3d 1019 (5th Cir. 2009).
- 38 -
Accordingly, for the reasons explained, the court holds that plaintiffs have failed to
prove their vote dilution claims under § 2 of the VRA and under the Equal Protection Clause
of the Fourteenth Amendment, and, by separate judgment entered today, it dismisses this
action with prejudice.
August 23, 2018.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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