Patino v. City of Pasadena

230 F.Supp.3d 667

Alberto PATINO, et al., Plaintiffs,

v.CITY OF PASADENA, Defendant.

CIVIL ACTION NO. H–14–3241

United States District Court, S.D. Texas, Houston Division.

Signed January 6, 2017

Denise Hulett, Mexican American Legal Defense & Educ. Fund, Sacremento, CA, Ernest I. Herrera, Nina Perales, MALDEF, San Antonio, TX, for Plaintiffs.

Claude Robert Heath, Gunnar Peterson Seaquist, Bickerstaff Heath Delgado Acosta LLP, Austin, TX, Kelly Spragins Sandill, Kathryn K. Ahlrich, Andrews Kurth LLP, Houston, TX, for Defendant.

MEMORANDUM AND OPINION SETTING OUT FINDINGS OF FACT AND CONCLUSIONS OF LAW

Lee H. Rosenthal, Chief United States District Judge

TABLE OF CONTENTS

Introduction...673

I. The Law Governing the Court's Inquiry, Findings, and Conclusions...674

A. Section 2 of the Voting Rights Act and the Fifteenth Amendment...675

B. The Fourteenth Amendment...676

II. Findings of Fact...677

A. Procedural Background...677

B. The Record Evidence...678

1. Fact Witnesses...678

2. Expert Witnesses...680

C. Pasadena's Election Maps and Plans...681

D. Pasadena's History...682

1. Texas Laws Affecting Pasadena...682

2. Racially Discriminatory Ordinances and Official Activities in Pasadena ... 684

3. Recent Private Racial Discrimination in Pasadena...685

E. Pasadena's Demographics...686

1. The Latino Population in Pasadena...686

2. Latino Citizen Voting–Age Population in Pasadena...687

3. The Eight Single–Member District Plan...690

4. The Six Single–Member District and Two At–Large Plan...690

5. Racial Cohesion in Pasadena City Council Elections...691

a. The 2015 At–Large Race for Place G...691

b. The 2015 At–Large Race for Place H...692

c. The November 2013 Special Election on Proposition 1...692

d. The 2015 District–Level Elections...692

e. Exogenous Elections...693

(1). Countywide Elections...693

(2). Primary Elections...694

f. Findings on Racially Cohesive Voting in Pasadena Elections...694

6. Socioeconomic Conditions and the Effects on Pasadena Voting...695

a. Income, Education, and Employment...695

b. Living Conditions...695

c. The Effects on Voting...696

d. Findings on the Effect of Socioeconomic Conditions on Latino Voting...696

F. The Circumstances Surrounding the Change to Pasadena's City Council Election Map and Plan...696

1. Recent § 5 Preclearance Objections to Converting to At–Large Voting in Other Texas Municipalities...697

2. The Shelby County Decision...698

3. The Shift from a Special Election to Approve a Council Bond Proposal to Amending the City Charter...698

4. Council Consideration of the Charter Amendment...700

5. The Campaign to Enact the Charter Amendment to Change to a Six Single–Member, Two At–Large District Map and Plan for City Council Elections...701

a. Improper Use of City Resources to Mobilize Anglo Voters in South Pasadena...701

b. The Use of Race and Party as Proxies for Each Other...703

c. The Result...704

6. Council Approval of the 6–2 Map and Plan...704

G. The Impact of Pasadena's New Election Map and Plan...706

1. The Previous 8–0 Map and Plan...706

2. The 2015 Election under the Current 6–2 Map and Plan...707

H. Summary on Findings of Fact...708

III. Conclusions of Law on § 2 of the Voting Rights Act...709

A. Gingles Step One...709

1. The First Two Conditions: The Minority is Sufficiently Numerous and Geographically Compact...709

2. The Third Condition: The Majority Votes as Bloc Sufficiently to Defeat the Minority's Preferences...709

B. Gingles Step Two...713

1. History of Discrimination...713

2. Racially Polarized Voting and Dilutive Measures...714

3. Racial Appeals in Political Campaigns...714

4. Successful Elections of Minority Candidates...715

5 Officials' Responsiveness to Minority Concerns...715

6. Tenuousness of the Policy...717

7. Proportionality...717

8. Conclusion of Law on the Totality of the Circumstances...718

C. Findings and Conclusions on Intentional Discrimination...718

1. Guidance from the Fifth Circuit: Veasey v. Abbott ...719

2. The Arlington Heights Factors...721

a. The Historical Background of the Decision...721

b. The Sequence of Events Leading Up to the Decision; Legislative History... 721

c. Departures, Both from the Normal Procedural Sequence and Substantive; Legislative History and Preenactment Statements by Proponents...723

d. Meeting the Burdens: The Plaintiffs' Showing that Racial Discrimination was a Substantial Factor in Enacting the New Electoral Map and the Defendants' Failure to Demonstrate that the Law Would Have Been Enacted Without this Factor...724

3. Conclusion: The City Intended to Dilute Latino Voting Strength...728

IV. Remedy...728

V. Conclusion and Order...730

Appendix A: Demonstrative Maps...731

Appendix B: Time Line...732

Introduction

This suit is one of many filed over the years to protect minority voting rights by ensuring "equal opportunity to participate in the political process." Thornburg v. Gingles , 478 U.S. 30, 44, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (internal quotation and citation omitted). This suit is one of the first involving redistricting done shortly after, and because, the Supreme Court decided Shelby County, Alabama v. Holder , ––– U.S. ––––, 133 S.Ct. 2612, 2631, 186 L.Ed.2d 651 (2013), which removed the federal Department of Justice preclearance requirement under § 5 of the Voting Rights Act. The plaintiffs are Latinos in Pasadena, Texas who are citizens of voting age. They ask this court to find that Pasadena's 2014 change from eight single-member districts for electing City Council members to six single-member districts and two at-large districts dilutes Latino voting strength and violates § 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments of the United States Constitution. The plaintiffs ask this court for a declaratory judgment finding Latino vote dilution, an injunction against using the mixed single-member and at-large map and plan, an order that the 2017 City Council elections be held under the eight single-member map and plan in place in 2013, and an order that Pasadena submit to preclearance by the Department of Justice before making future changes to its voting map or plan for electing City Council members.

The defendant, the City of Pasadena, opposes the requests. The City asserts that in recommending the redistricting, Pasadena's Mayor and City Council intended to promote two legitimate goals unrelated to Latino vote dilution: first, the nonpartisan goal of making the Council more broadly representative and responsive to the concerns of all Pasadena residents; and second, the partisan goal of enhancing Republican, rather than Anglo, votes. The City argues that the change from a single-member to a mixed map and plan did not cause the Latino-vote dilution necessary to find a § 2 violation; and, if dilution resulted, that the City lacked the intent necessary to find a constitutional violation.

This suit has received the careful court review the subject matter commands. After discovery and rulings on motions to dismiss and for summary judgment, the court held a seven-day bench trial, at which 16 witnesses testified and the court admitted 468 exhibits into evidence. The parties presented closing arguments at a three-hour hearing on December 2, 2016. After carefully considering the pleadings, the evidence, the arguments of counsel, and the law that applies, the court issues this Memorandum and Opinion setting out its Findings of Fact and Conclusions of Law under Federal Rule of Civil Procedure 52(a).¹

For the reasons stated in detail below, the court finds and concludes that Pasadena's 2014 change from an eight single-member district map and plan to a six single-member district and two at-large position map and plan for electing its City Council dilutes the votes of its Latino citizens, in violation of § 2 of the Voting Rights Act. The court also finds and concludes that the change to the mixed map and plan was intended to dilute those votes because they were cast by Latino voters, in violation of the Fourteenth Amendment. Pasadena is enjoined from using the 2014 mixed map and plan in the 2017 City Council elections or subsequent elections. Instead, Pasadena must conduct the 2017 City Council election using the eight single-member district map it used in the May 2013 City Council elections. Pasadena must also submit to federal Department of Justice preclearance before implementing future redistricting changes.

The reasons for these rulings are explained in detail below.

I. The Law Governing the Court's Inquiry, Findings, and Conclusions

Although great progress has been made, "voting discrimination still exists; no one doubts that," and § 2 of the Voting Rights Act remains a crucial "permanent, nationwide ban," Shelby County , 133 S.Ct. at 2619, on "even the most subtle forms of discrimination," Chisom v. Roemer , 501 U.S. 380, 406, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (Scalia, J., dissenting). Federal courts have a vital role in protecting the right "to participate equally in the political process." Gingles , 478 U.S. at 80, 106 S.Ct. 2752. In requiring federal courts to consider "the totality of circumstances," 52 U.S.C. § 10301(b), Congress has made clear that, again in the Court's words, "whether the political processes are equally open depends upon a searching practical evaluation of the past and present reality and on a functional view of the political process." Gingles , 478 U.S. at 45, 106 S.Ct. 2752 (internal quotations and citation omitted). At the same time, federal courts are reluctant to interfere with legislative decisions, especially when they are decisions by state or local legislative bodies, and when the decisions concern issues as sensitive as those regarding who votes, how they vote, and what districts they vote in. See Wise v. Lipscomb , 437 U.S. 535, 540, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978).

A. Section 2 of the Voting Rights Act and the Fifteenth Amendment

Congress passed the Voting Rights Act to enforce the Fifteenth Amendment and prevent "an inequality in the opportunities enjoyed by [racial minority and majority] voters to elect their...