Kumar v. Frisco Indep. Sch. Dist.

476 F.Supp.3d 439

Suresh KUMAR, Plaintiff,

v.FRISCO INDEPENDENT SCHOOL DISTRICT, et al., Defendants.

Civil Action No. 4:19-CV-00284

United States District Court, E.D. Texas, Sherman Division.

Signed August 4, 2020

Donna P. Zinke, Michael Joseph Collins, William Andrew Brewer, III, Brewer, Attorneys & Counselors, Dallas, TX, for Plaintiff.

Charles Joseph Crawford, Chad Dale Timmons, Lucas Christopher Henry, Abernathy Roeder Boyd & Hullett, PC, McKinney, TX, for Defendants Frisco Independent School District, Steven Noskin, Chad Rudy, Anne McCausland, Debbie Gillespie, John Classe, Rene Archambault.

Charles Joseph Crawford, Abernathy Roeder Boyd & Hullett, PC, McKinney, TX, for Defendants Gopal Ponangi, Natalie Hebert, Frisco Independent School District Board of Trustees.

MEMORANDUM OPINION AND ORDER AND FINDINGS OF FACT AND CONCLUSIONS OF LAW

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

The present action concerns allegations of voting rights discrimination brought pursuant to Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301. Plaintiff Suresh Kumar ("Kumar") challenges the at-large electoral system utilized by Frisco Independent School District ("FISD" or "the District"), and its Board of Trustees ("Board") (collectively, "Defendants") which he claims dilutes the voting strength of the African American, Hispanic, and Asian minority voting populations. Following a bench trial, and for the reasons that follow,¹ the Court finds that Frisco ISD's at-large electoral system does not violate Section 2 of the Voting Rights Act. Under the totality of the circumstances, FISD's electoral system does not deny African American, Hispanic, or Asian minority voting populations an equal opportunity to participate in the electoral process or to elect representatives of their choice.

LEGAL STANDARD

Section 2 of the Voting Rights Act, 52 U.S.C. § 10301, provides in subsection (a) that: "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 ...." Pursuant to subsection (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 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, [t]hat nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

52 U.S.C. § 10301(b). This amended version of the Act—which does not require proof of discriminatory intent but rather focuses on discriminatory results² —was first considered by the Supreme Court in the seminal case Thornburg v. Gingles , 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). In Gingles , the Court established the current two-step framework for analyzing Section 2 cases via a three-part threshold test. Id. Thus, post- Gingles , to prevail on a Section 2 claim, a plaintiff must first demonstrate 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 candidate."

Benavidez v. Irving Ind. Sch. Dist. , 2014 WL 4055366, at *4 (N.D. Tex. Aug. 15, 2014) (" Benavidez III ") (citing Gingles , 478 U.S. at 50–51, 106 S.Ct. 2752 ). "Failure to establish any one of the Gingles factors precludes a finding of vote dilution, because "[t]hese circumstances are necessary preconditions for multimember districts to operate to impair minority voters’ ability to elect representatives of their choice ...." Clements , 986 F.2d at 743 (citing Gingles , 478 U.S. at 50, 106 S.Ct. 2752 ; Overton v. City of Austin , 871 F.2d 529, 538 (5th Cir. 1989) ).³

Should a plaintiff meet the threshold set out by Gingles , the Court then proceeds to step two of its inquiry. During step two, "[t]he minority group must further demonstrate 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 choice.’ " Reyes v. City of Farmers Branch, Texas , 2008 WL 4791498, at *2 (N.D. Tex. Nov. 4, 2008) (citation omitted). Per Gingles , the second phase requires courts to determine, based upon a searching practical evaluation of the ‘past and present reality,’ ... whether the political process is equally open to minority voters." Gingles , 478 U.S. at 79, 106 S.Ct. 2752. Courts must take a "functional" view of the political process as it considers the facts of each unique case. Id. ; see also NAACP v. Fordice , 252 F.3d 361, 367 (5th Cir. 2001) (quoting Magnolia Bar Ass'n, Inc. v. Lee , 994 F.2d 1143, 1147 (5th Cir. 1993)) ("Before making its totality of the circumstances analysis, the district court correctly recognized that it was required to effect a flexible, fact-intensive inquiry predicated on ‘an intensely local appraisal of the design and impact of the contested electoral mechanisms ....’ "). In making this determination, courts are guided by a set of factors drawn from the Senate Report accompanying the 1982 amendments. The so-called Senate Factors include:

(1) the history of voting-related discrimination in the State or political subdivision;

(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 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;

(4) the exclusion of members of the minority group from candidate slating processes;

(5) 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;

(6) the use of overt or subtle racial appeals in political campaigns;

(7) the extent to which members of the minority group have been elected to public office in the jurisdiction.

Id. at 44–45, 106 S.Ct. 2752. The Senate Report also noted, as the Gingles Court pointed out, that courts should consider whether there is: "[ (8) ] evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group; [or (9) evidence] 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." Id. Courts additionally look to a tenth factor following Johnson v. De Grandy , 512 U.S. 997, 1006–07, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) : "[ (10) ] 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) (quoting League of United Latin Am. Citizens (LULAC) v. Perry , 548 U.S. 399, 426, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) ) (hereinafter cited as " LULAC "). "Multimember districts and at-large election schemes ... are not per se violative of minority voters’ rights. 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." Benavidez v. Irving Indep. Sch. Dist., Texas , 690 F. Supp. 2d 451, 456 (N.D. Tex. 2010) (" Benavidez II ") (citing Gingles , 478 U.S. at 48, 106 S.Ct. 2752 ).

The burden of proof is on the plaintiff to demonstrate, by a preponderance of the evidence, that "all of the Gingles preconditions were satisfied and that based on the totality of the circumstances the at-large election system diluted the voting strength of [the minority group]." League of United Latin Am. Citizens #4552 (LULAC) v. Roscoe Ind. Sch. Dist. , 123 F.3d 843, 846 (5th Cir. 1997) (citing Overton , 871 F.2d at 532 ).

ANALYSIS

The Court is presented with a challenge to Frisco ISD's at-large electoral system pursuant to Section 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301.⁴ Based on the Court's Rule 52 findings of fact and conclusions of law, the Court finds that Kumar failed to meet his burden with respect to his voter dilution claim. The Court's Opinion proceeds as follows: I. Standing; II. Admissibility of Exhibits; III. Reliability of Mr. Ely's Methodology; IV. Findings of Fact; and V. Conclusions of Law. Because standing is in question, the Court considers Defendants standing challenge first.

I. Standing

On October 17, 2019, Defendants filed Defendants’ Motion to Dismiss for Lack of Standing Pursuant to FED. R. CIV. P . 12(b)(1) (Dkt. #41). After considering arguments from both parties and finding that Kumar's First Amended Complaint was unclear on whom Kumar was seeking to represent, the Court, in its discretion, ordered Kumar to amend his complaint (Dkt. #74).⁵ On March 20, 2020, Kumar filed his Second Amended Complaint (Dkt. #81). Unlike Kumar's First Amended Complaint, Kumar's Second Amended Complaint unequivocally...