Full opinion text
MEMORANDUM OPINION BUCHMEYER, District Judge. This is a voting rights case. It concerns the “8-3 system” for the election of members of the Dallas City Council — i.e., 8 single-member districts and 3 “at-large” places. Under this system, no African-American has ever been elected to one of the at-large seats; only one Mexican-American has been elected at-large under the 8-3 system but, as discussed below, this was due to some very unusual circumstances that will not be repeated. Accordingly, this opinion holds: (i) that the 8-3 system violates § 2 of the Voting Rights Act, 42 U.S.C. § 1973, because it dilutes the votes of politically cohesive African-Americans and of politically cohesive Mexican-Americans in Dallas; and (ii) that a special Council election must be held to remedy the adverse effects of the 8-3 system — the denial of equal access to the City’s political process— which blacks and Hispanics have suffered under this system for almost 15 years. The Fifth Circuit has repeatedly emphasized that there is a “special need for detailed findings of fact in vote dilution cases” in which the district court performs a “searching and practical evaluation of ‘past and present reality’ [based] on a functional view of the political process.” “Because the resolution of a voting dilution claim requires close analysis of unusually complex factual patterns, and because the decision of such a case has the potential for serious interference with state functions, we have strictly adhered to the rule 52(a) requirements in voting dilution cases and have required district courts to explain with particularity their reasoning and the subsidiary factual conclusions underlying their reasoning ... Perhaps in no other area of the law is as much specificity in reasoning and fact finding required, as shown by our frequent remands of voting dilution cases to district courts.” (872 F.2d at 1203) (emphasis added). Accordingly, the Findings of Fact in this opinion are exhaustive. Because of their length, this Memorandum Opinion — for convenience-will begin with a brief discussion of the applicable law (pp. 1319-1320), followed by a summary of the opinion (pp. 1320-1330) and its reasons for holding that: (i) under the 8-3 system, African-Americans and Hispanics are denied access to the 3 at-large seats because they cannot raise — from their own communities — the enormous amount of money (at least $150-200,000) that is required for an effective at-large, city-wide campaign in Dallas; (ii) under the 8-3 system, blacks have been unfairly prohibited from electing more than two single-district Council Members by the “packing” of African-Americans into two districts with 75-87% concentration and 85-91% total minority population (Districts 6 and 8) — and by splitting the remaining African-American population in Dallas between Districts 1 and 7, to prevent the creation of a third black district; and (iii) these discriminatory effects of the 8-3 system, which clearly violate § 2 of the Voting Rights Act, must be remedied by a special City Council election to be held as soon as possible. The opinion summary will be followed, of course, by the specific, detailed E’indings of Fact required in voting dilution cases. Specifically, these comprehensive findings will cover the following topics: A. General: Findings 1-8 B. History of the 8-3 System (1856-1980): Findings 9-131 C. The Continuing Reapportionment Controversy (1980-1989): Findings 132-225 History of the 10-4-1 Plan (1989-1990): Findings 226-276 D. Specific Findings on Critical Issues: Findings 277-311 E. (1) safe districts & packing: Findings 278-282 (2) at-large seats: Findings 283-293 (3) the supposed “city-wide” view: Findings 294-299 (4) the "two people to call” argument: Findings 300-304 (5) the mayor’s at-large place: Findings 305-311 F. The Gingles Threshold: Findings 312-378 (1) Blacks — size & compactness: Findings 313-314 (2) Blacks — politically cohesive: Findings 315-335 (3) Blacks — white bloc voting: Findings 336-357 (1) Hispanics — sized compactness: Findings 357-364 (2) Hispanics — politically cohesive: Findings 365-378 (3) Hispanics — white bloc voting: Findings 365-378 G. The Zimmer Factors: Findings 379-429 H. The Totality of the Circumstances Test: Findings 430-441 I. Observations About the 10-4-1 Plan: Findings 443-449 J. The Delay & The Remedy: Findings 450-461 The Findings of Fact will, of course, be followed by the Conclusions of Law (1-18) (pp. 1413-1415), and by the Conclusion of this opinion (pp. 1415-1416). I. THE APPLICABLE LAW The basic question in this § 2 vote dilution case is whether, as a result of the challenged 8-3 system for Dallas City Council elections, the African-American plaintiffs and the Mexican-American intervenors “do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." Thornburg v. Gingles, 478 U.S. 30, 44, 106 S.Ct. 2752, 2762, 92 L.Ed.2d 25 (1986) (emphasis added). the Act Specifically, § 2 of the Voting Rights Act, 42 U.S.C. § 1973, provides: “(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) of this section 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 ... 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.” the Gingles threshold Under Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, Dallas’ use of the 8-3 system — with the 3 at-large seats — would not impede “the ability of minority voters to elect representatives of their choice” unless there is a white bloc voting majority that would “usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group.” 478 U.S. at 48-49, 106 S.Ct. at 2765. Therefore, the black plaintiffs and the Hispanic intervenor in this case must first meet the Gingles three-part threshold: “Under Gingles, plaintiffs must establish first that the group is sufficiently large and geographically compact to constitute a majority in a single-member district; second, that it is politically cohesive and third, that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate. 478 U.S. at 50-51, 106 S.Ct. at 2766-67; Campos [v. City of Baytown], 840 F.2d [1240] at 1243. The second and third elements are usually established by statistical evidence of racially polarized voting by the voters in the relevant political unit.” Westwego, 872 F.2d at 1205-06. the Zimmer factors If this threshold is met, then this Court must determine if the 8-3 system violates § 2 of the Voting Rights Act by conducting a “searching practical evaluation” of the list of factors first set forth in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (en banc), and later in the Senate Report of the 1982 amendments to the Act: “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 political subdivision has used unusually large election districts, majority vote requirements, anti-single 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, employment and health, which hinder their ability to participate effectively in the political process. “6. whether political campaigns have been characterized 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. “Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are: “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. “whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedures is tenuous.” Westwego, 872 F.2d at 1204-05; S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.Code Cong. & Admin.News 177, 206-07. totality of the circumstances However, the final determination by this Court concerning the 8-3 system must “be made by an evaluation of the totality of the circumstances” — including the Gingles threshold and the Zimmer factors. Westwego, 872 F.2d at 1206; Terrazas v. Clements, 581 F.Supp. 1329, 1344-45 (N.D.Tex. 1984) (three-judge court). In the evaluation, this Court must adhere to two themes: first, that “courts have not tolerated political systems that effectively exclude minority voters from the democratic processes,” but second, that “courts have consistently eschewed the notion that [the Voting Rights Act] secures to any group of citizens the right to obtain political representation in proportion to its numbers.” Terrazas v. Clements, 581 F.Supp. at 1341. II. SUMMARY OF THE OPINION The history of minority participation in the political process of Dallas is not one of choice; it is a record of what blacks and Hispanics have been permitted to do by the white majority. This history has three distinct periods: the century of total exclusion when intentional discrimination prevented any minorities from serving on the Dallas City Council; the decade of the Citizens Charter Association’s selection of those blacks and Hispanics who would be permitted to serve as at-large members of the Council; and, the 15-year period of the 8-3 system, which permitted two blacks to serve as single-district representatives on the City Council ... but which (with the exception of 1980-83) denied minorities the right to elect any other single-district Council Members ... and which denied both blacks and Hispanics access to any of the 3 at-large seats without the support, and permission, of the white majority in North Dallas. (1) The Century of Exclusion (1856-1969) African-Americans and Hispanics were not permitted to serve as members of the City Council for almost 100 years after Dallas was chartered in 1856. The discrimination against blacks and Mexican-Americans — during most of this period— was intentional, open, and even official. Shameful as it now seems, until 1968 the Dallas City Charter contained a “Segregation of the Races” section which authorized the Council to segregate the City into totally separate areas for whites and for the “colored races.” Under this ordinance (or in accord with its spirit): ... the City Manager specified the areas of Dallas that were reserved for whites, for “Negroes,” and for “Mexicans”; and the City Council passed a number of racially-motivated ordinances (1942, 1961), including one that required blacks to sit in a “special section” in the back of City buses (1937). ... the Council tried to solve “the Negro” housing problem, and keep blacks from moving into the “white areas” of Dallas, by having DHA construct the massive, 3500 unit West Dallas Housing Project (1950). ... even as late as 1960 the DISD’s resistance to desegregation was bolstered by a federal judge who wrote that most of the whites and Negroes in the City of Dallas do not favor integration of the schools because this is, “in all probability, the most direct and surest route to amalgamation” of the races. Under conditions like these, it is not surprising that a black never ran for election to the Dallas City Council until 1959 — and that there was only one African-American candidate in each of the next three Council elections (1961-1965). Of course, since all 9 members of the City Council were elected “at-large, city-wide, ” all of these black candidates — even though they carried minority areas of Dallas with over 80% of the vote — were defeated by massive white bloc voting in North Dallas and in the other white areas of the City. In addition, the Citizen’s Charter Association (“CCA”) controlled City Council elections as an all-white, “non-partisan slating group.” Since its beginning in the 1930’s, the CCA had never endorsed a black or Hispanic candidate for City Council. (2) The Decade of Permission by the CCA (1968-77) By 1967, Dallas had a minority population of almost 35% (25% black, 8-10% His-panic). In that year, the CCA struck a political campaign bargain in order to get the black community’s support of CCA-endorsed candidates; in return for that support, the size of the City Council would be increased by two seats — from 9 to 11 — and these two seats would be reserved for minorities. Accordingly, in the 1969 elections — with the CCA providing financial support and making sure there was no viable white opponent-George Allen (African-American) and Anita Martinez (Mexican-American) became the first minorities who were permitted to serve on the Dallas City Council. In the next two Council elections (1971, 1973), the CCA selected one black and one Hispanic to serve on the City Council; then in the 1975 elections, it permitted two African-Americans (George Allen, Lucy Patterson) and one Hispanic (Pedro Aquirre) to serve as Council Members. (3) 15 Years Under the 8-3 System (1975-90) In 1971, A1 Lipscomb (and other African-Americans) filed a voting rights case in federal court in Dallas, claiming “that the all at-large system of electing Council Members unconstitutionally diluted the vote of racial minorities.” Lipscomb v. Wise, 399 F.Supp. 782 (1975), reversed 551 F.2d 1043 (5th Cir.1977), but affirmed 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978). Origin of the 8-3 System (1971-75) Four years later, this case was tried and Judge Mahon found that the “city-wide, at-large” system of electing members to the “Dallas City Council” was unconstitutional because: “... when all members of the City Council are elected at-large, the significance of this pattern of blacks carrying their own areas and yet losing on a city-wide basis [because of a white bloc vote] is that black voters of Dallas do have less opportunity than do the white voters to elect councilmen of their choice.” However, when he considered the remedy for this intentional discrimination against minorities by the "all at-large system,” Judge Mahon accepted the plan proposed by the City, a mixed 8-3 system— i.e., 8 single-member districts and the continuation of 3 at-large places (including the mayor). He did this for two reasons: First, since no single-member district could be drawn for Hispanics, the “operation of white-dominated slating groups,” like the CCA, permit “Mexican-American citizens ... to operate in a “swing-vote” manner [in the 3 at-large places of the 8-3 system] and give them opportunity they might not otherwise have had” — because they must, with “lesser numbers” and “their diffuse resident patterns,” form coalitions with “either blacks or whites in order to maintain political stability”; and second, there is “legitimate governmental interest to be served by having some at-large representation” on the Council to provide a “city-wide, non-sectional” view. The 8-3 system has been used for all Dallas City Council elections since Judge Mahon’s decision in March 1975 through the 1979 Council elections (although the single-district lines were redrawn in 1979 and in 1982). This is how African-Americans have fared under the 8-3 system: ... two African-Americans have been elected to single-member districts in every election, but they were — as expected — from the two predominately black districts: District 6 (under the 1980 census, 84.92% total minority and 74.91% black) and District 8 (under 1980 census, 91.05% total minority, 87.39% black); ... with this “packing” of black population in Districts 6 and 8, and with the splitting or “cracking” of the remaining African-American population between District 1 and District 7 — in order to assure that Oak Cliff (District 1) has a white representative on the Council— there has been no black candidate elected in any other single-member district in the past 15 years (besides Districts 6 and 8); ... no African-American has ever been elected to one of the 3 at-large seats; indeed, in all of the at-large races since 1975, there has been only one serious black candidate (whose race is discussed below). Similarly, this is how Mexican-Americans have fared under the 8-3 system in the City Council elections during the past 15 years: ... despite the hopes in Judge Mahon’s opinion that Mexican-Americans would, under the 8-3 system, have a “heretofore unavailable flexibility and greater opportunity to participate in the political life of Dallas” in view of the 3 at-large seats— every Hispanic candidate was defeated in the April 1975 elections; since then, no Hispanic even ran for an at-large seat in any election until 1987 (this race is also discussed below). ... after refusing repeated requests by blacks and Hispanics, the City Council — at the insistence of the Justice Department in 1979 — did create a third minority district by redrawing the lines of District 2 (under the 1980 census, 76.73% total minority, 43.38% black, 33.34% Mexican-American); and a Hispanic (Ricardo Medrano) was elected to this single-member district in the 1980 and 1981 elections; however, the lines of this district were redrawn in 1982 (64.98% total minority, 33.20% Hispanic, 31.78% black)— and since then, Hispanic candidates have not won an election in District 2 or any other single-member district. ... one of the two reasons stated by Judge Mahon for approval of the 8-3 “mixed system” — the “greater opportunity” for Mexican-Americans to be elected to at-large seats with CCA support — no longer existed; the CCA did not endorse or support any candidates in the 1977 elections; it was defunct, and it has never been replaced by any other “slating group” in Dallas. ... only one Mexican-American has been elected to an at-large seat under the 8-3 system but, as discussed below, this was due to some very unusual circumstances that will not be repeated. The Black Reapportionment War (1981-82) The 1980 census showed that Dallas had a minority population of 41.67% (29.38% African-American and 12.29% Mexican-American). African-American members of the Council (and others) had repeatedly asked for the creation of a third black district, which would give them a 27.2% representation on the City Council (reflecting the increased black population of almost 30%). Indeed, as demonstrated by plans prepared by the City staff, it was possible for the Council to create three districts with a black majority of 60-65% and a fourth “swing district” with a minority population in excess of 53%. However, there was vehement opposition to any such change — particularly from Council Members Don Hicks (District 1-Oak Cliff), Max Goldblatt (District 7-Southeast Dallas), and Ricardo Medrano (District 2)-who did not “intend to have a third [black] district carved from their districts.” The reapportionment war, which resulted in 1981-82 from this controversy, was marked with acrimony and racial tension. Credible testimony at trial established that statements like these were made at Council work sessions and meetings: ... Oak Cliff (District 1) had to have a white representative on the Council because “Anglos felt extremely uncomfortable being represented by blacks,” and if District 1 did not have an Anglo member on the City Council, there would be “white flight” and “Oak Cliff would be black within two years”; ... that there could be a third black City Council member without another single-district for African-Americans if a “qualified” black would just run for one of the 3 at-large seats; ... it is unfair to have five Council members (including all three at-large representatives) from just two districts in North Dallas, and the mayor’s reapportionment plan passed by the Council is a “scheme to continue to oppress blacks in the City of Dallas and to deny them representation.” The net result of the 1981-82 reapportionment war was this: the five white majority districts remained basically unchanged; District 6 had its black population reduced to 74.91% from 82.61% (but its total minority population increased from 83.68% to 84.92%); District 8 had only insignificant changes in its black and total minority population; and District 2 had its total minority population reduced to 64.98% from 76.73% (but with little reduction in its Hispanic population, which dropped only to 33.20% from 33.34%). These changes to District 2 were made with the approval of the incumbent, Ricardo Medrano-who was subsequently defeated in the April 1983 elections. The At-Large Race by a “Qualified Black” In early 1983, African-American leaders in Dallas met with the objective of finding “a consensus candidate to run at-large out of the black community because [they] had continuously been informed that a black could win an at-large race with the right credentials.” This group sought “one of the best candidates that we could put up, one who had been well-educated, who had [held] very high positions, who had participated in [respected] civic organizations around the City at every level.” At this meeting, Marvin Robinson was selected as the “test case” for the black community. Marvin Robinson was an excellent choice as the “consensus black candidate.” He was well-educated, he was a veteran and a successful business executive, and he had “paid his dues” by being very active in civic and communities affairs in Dallas. The group of African-American leaders that selected Marvin Robinson as the “consensus black candidate” in early 1983 was also realistic: “We took a good look at our involvement in the black community and the lack of funds to run the race. We knew that a black in this town would need $200-250,000 [for an at-large race]. We also knew that we lacked the capacity in the black community to raise those kind of funds. And the only way we were going to raise those funds was to go back to those [white] individuals who we worked with and [with whom] we had tried to develop a rapport or cadre of support ...” However, Robinson and his supporters found out that this assistance and financial backing — which they expected from Anglo business and community leaders, and other whites they had known and worked with in a myriad of civic and community efforts— was not there. Although they went back for white support “continuously, time and time again, ” Robinson’s campaign was able to raise only $15,739 — and most of that “came out of poor black folks’ pockets. ” This $15,739, plus another $15,-000 borrowed from a bank, was the total amount that Robinson had for his citywide, at-large campaign for Place 9. Robinson’s main opponent in the 1983 Place 9 race was Jerry Rucker, a white candidate; Rucker lived in North Dallas, and he raised and spent over $160,000 in this race. In the general election, Rucker received 45.45% of the total vote. Marvin Robinson was second with 21.23%, and the other black candidate — the plaintiff Marvin Crenshaw — was third with 12.15%. Robinson and Crenshaw together had received some 90% of the black vote, but only 20% of the white vote. In the runoff on April 16, 1983, Marvin Robinson — the consensus at-large candidate of the black community — was soundly “drummed.” Although Robinson received almost 100%> of the black votes, he got only 11% of the white vote; this translated in 31.78% of the total vote, and Jerry Rucker won with 68.22%. Since this race by Marvin Robinson in 1983, no serious black candidate has ever run for an at-large seat in the Dallas City Council elections because blacks are convinced that “this town is not ready ... to elect an African-American in an at-large race” — and that no “African-American in this town is going to [be able to] acquire the $250,000 that he or she needs to run that kind of race.” The Hispanic Reapportionment War (1986) There had been no Mexican-American on the Dallas City Council since the lines to District 2 had been redrawn in 1982 — and since Ricardo Medrano had been defeated in the 1983 Council elections. This led Mexican-Americans to petition the City Council for reapportionment in 1986 and for a redrawing of the district lines in the 8-3 system to create a possible Hispanic district. As they had before, African-Americans asked for the creation of a third black district. In 1986, just as in 1982, the Dallas City Council could have drawn three districts with a black majority of 60%-65% and a fourth “swing district” with a total minority population in excess of 53%>. However, after heated and racially-charged discussions, the Council decided, by a 6-5 vote, to take no action to reapportion the 8 single-member districts in 1986. The At-Large Race by A “Qualified His-panic” (1987) Credible testimony established that, after this Council vote, Mayor Starke Taylor met with some Mexican-American leaders; that he told them he would support and endorse a Mexican-American for one of the at-large seats in the 1987 elections; and that he would agree “to do everything he could” to see that the Hispanic candidate won, including helping the candidate get financial backing and votes from North Dallas. Credible testimony also established that this offer of support was made by Mayor Taylor because “he felt strongly that the Hispanic community was going to sue the City. He felt that they would have a case,” and that “one of the reasons why he was supportive of a Hispanic candidate was to try to delay or prevent a Hispanic challenge to the 8-3 system.” This lead to A1 Gonzalez being the sole Mexican-American candidate in the Place 10 at-large race in the 1987 Council elections. With reference to his selection, Gonzalez testified that he had been very successful as co-chair of an important 1985 City bond campaign and very active in the Hispanic Chamber of Commerce; that he met with Mayor Taylor and businessman Norman Brinker about running for Place 10; that Brinker agreed “to be my chair” and “to try to raise money from the business community”; that businessman W.L. Bankston agreed to serve as his treasurer; that he knew he couldn’t raise the money for an at-large race from the black or Hispanic communities; but that he hoped to be able to raise some “$150,000 from the Dallas establishment." Gonzalez did, in fact, raise over $173,000 —almost all from “the North Dallas establishment.” With this white support and with no serious white opponent — the other candidates were 4 African-Americans and a 76 year old white male (Martin)— Gonzalez won the 1987 Place 10 race without a runoff. He received 57.59% of the vote; the white candidate (Martin) received 10.89%; and the four black candidates split the remaining votes. History of the 10-4-1 Plan In early 1988, following a long-period of complaints by minorities over the “deadly force policy” of the Dallas Police Department and the powers of the Police Review Board, two Dallas police officers were shot and killed within a two-week period. The Chief of Police, after the death of the two officers, accused the two black City Council Members (A1 Lipscomb, Diane Ragsdale) of creating an atmosphere of “hate and hostility” in the City which fostered violence. As this racial tension was described later: “In early 1988, Dallas experienced a chain of events that devastated the City. The anguish which accompanied the loss of life — of both citizens and police — made it clear that racial tensions were high and that without some method to openly address those tensions, our City was in danger of continued crisis.” the Dallas Together commission This lead to the mayor’s appointment of the “Dallas Together’’ commission, which she charged with the “difficult task of finding ways to reduce the racial tensions in our community” by breaking down barriers of “prejudice, racism and classes” — and “with the task of bringing Dallas together by identifying the root causes of the racial tensions being experienced in our City.” On May 18, 1988, shortly after Dallas Together started its work, this lawsuit was filed. The black plaintiffs charged that the City’s 8-3 mixed system for electing Council members was unconstitutional and was in violation of § 2 of the Voting Rights Act because it dilutes the votes of African-Americans. (The Ledbetter Neighborhood Association intervened on August 25, 1988, claiming that the 8-3 plan also discriminates against Mexican-Americans.) City Council: the 8-3 system is fair It was with this background of racial tension, hostility, crisis and this lawsuit— and with Dallas Together studying, among other things, the issue of minority representation in City government — that the depositions of eight members of the City Council (including the mayor) were taken in this case in September of 1988. Of the eight Council Members deposed in September of 1988, there were six who testified that the 8-3 system was “fair" or “equitable" and that it afforded equal access to minorities — and that they believed a “qualified black” could be elected to one of the 3 at-large places, even though it would be much more expensive to run for an at-large seat than a single-member district. In January 1989, the Final Report of Dallas Together was submitted to the May- or, to the “City of Dallas and to the citizens of Dallas.” Contrary to the views of the City Council majority, the Political Participation Committee of Dallas Together had concluded that the 8-3 system was unfair: “By most standards (numerical, demographic, population and racial distributions) our City Council districts, as presently structured, do not provide sufficient opportunity for all of our citizens to be properly and fairly represented in a system that is designed to meet the needs of contemporary Dallas. “The committee noted, with some alarm, the sense of hopelessness and despair by many of our citizens of all races. Much of their concern is founded in a sincere belief, rightly or wrongly, that they are systematically excluded from the political process. The committee recognized that deeply felt emotions such as these provide a breeding ground for crisis ...” (Final Report, p. 21) (emphasis added). Accordingly, Dallas Together recommended — “with a sense of urgency” — that the Dallas City Council appoint a “Charter Review Committee” to consider “the proper number, population size, and demographic make-up of our single-member City Council districts ... in conjunction with an evaluation of the proper role of [at-large] districts in our municipal system.” the Charter Review Commission On March 8, 1989, the Council established the Dallas Citizens Charter Review Committee (“CRC”), as recommended by Dallas Together. Ray Hutchison, the Chairman of CRC, had also chaired the Political Participation Committee of Dallas Together; at trial, he explained that CRC concluded that the 8-3 system was unfair to minorities — and that 18% (i.e., 2 out of 11 members) “was not fair representation on the Dallas City Council for blacks”— particularly since the Council could “achieve 27.3% African-American representation” (i.e., 3 out of 11 members) at any time by redrawing the 8-3 lines to create a third “safe seat for blacks.” On June 13, 1989 — two weeks after the deadline that had been set by the City Council — the CRC met to make final decisions on recommendations to the Council. The meeting opened with some civility, but it degenerated into acrimony and bitterness that matched the animosity that had taken place seven years earlier, during the 1982 reapportionment war. By its first vote, the CRC unanimously condemned the 8-3 system. After this vote, the CRC considered the 12-1 plan (mayor at-large) versus a 10-4-1 plan (10 single-districts, 4 quadrants or “super districts” and the mayor elected at-large). In a racially-charged atmosphere, the CRC— by a 10-4 vote — decided against any plan that was all single-member districts; and, the committee decided to recommend 4 quadrant districts (by a 10-4 vote) and 10 single-member districts with the mayor elected at-large (by a 9-5 vote). The CRC projected that, under the 10-4-1 plan, there would be 4 “safe seats” for blacks (3 local districts and 1 quadrant, with each having 75 +% concentration”)— but that there would be no “safe seat” for Hispanics (only a 44% Hispanic concentration in a 65% “majority minority” local district). By their “safe seats,” African-Americans were expected to achieve 26.67% representation of the expanded City Council (i.e., 4 out of 15 seats). This, then, was the net result of the efforts of CRC: it proposed a plan for the structure of City government — the 10-4-1 plan — that actually projected a lower percentage of African-American representation (26.67%) than the City Council could have achieved simply by redrawing lines under the existing 8-3 plan to create a third black district (27.3%) and a fourth “swing district” with a total minority concentration in excess of 50%. the 10-4-1 referendum On June 28, 1989 — the last day on which an August referendum could be set on the Charter amendments required by CRC recommendations — the City Council voted 7-4 to adopt the CRC recommendation concerning the 10-4-1 plan, and to set it (and other matters) for a referendum election on August 12, 1989. However, the City Council rejected one recommendation of the CRC. Instead of using the 10-4-1 plan for the regular May 1991 elections (based on 1980 census data), the Council voted to delay these elections until at least November 1991 or later depending on when the City was able to obtain preclearance from the Attorney General under § 5 of the Voting Rights Act. In the August 1989 election, the 10-4-1 plan passed with 65% of the total vote. However, 95% of the African-Americans who voted, and over 70% of the Hispanics who voted, were opposed to the 10-4-1 plan — which passed only because it received 85% of the white vote. In view of this bloc voting the 10-4-1 referendum in August 1989 was probably the most racially divisive election in the history of the City of Dallas. The well-intentioned Dallas Together commission — and the tortured efforts of the CRC — had ended after the August 1989 referendum with severe racial tension, a divided community, and a racially charged atmosphere — conditions that were no better, and were perhaps even worse, than when Dallas Together had been conceived in early 1988. City Council: the 8-3 system is not fair However, Dallas Together and CRC did have a definite impact upon the attitude of the members of the City Council about the fairness of the 8-3 system. Unlike the depositions taken in September 1988-— where 6 of 8 Council Members testified that the 8-3 system was “fair and equitable and afforded equal access to minorities” — when they testified at trial or by depositions in September 1989, 9 members of the present Council either (i) agreed with the unanimous conclusion of CRC that the 8-3 system was racially unfair and should be condemned, or (ii) felt that the 8-3 system should be abandoned for some other reason. Specific Findings on Critical Issues This put the City in an unusual position, to say the least, at trial. Dallas Together, the CRC, and a sizable majority of the Council Members had all concluded that the 8-3 system was unfair. Yet, the City attempted to defend the 8-3 system at trial. This may partially explain why the City lost on each critical issue raised by the trial testimony and the law. at-large seats Minorities are denied access to the 3 at-large seats in the 8-3 system. No African-American has ever been elected to one of these at-large seats. Only one Hispanic (A1 Gonzalez) has been elected at-large under the 8-3 system but, as discussed above, that was due to very atypical circumstances which will not reoccur. An effective campaign for a single-member district under the 8-3 system costs approximately $15-30,000, and minority candidates have been able to raise enough money to run successful campaigns in Districts 6 and 8. In contrast, a campaign for an at-large place would cost at least $100,000; would probably range from $150-200,000; and may well require from $200-250,000 for a viable minority candidate to succeed in an at-large race. Most of the money raised for these at-large races comes from the non-minority areas of Dallas. There is an obvious reason for this: the substantial economic disparities between white and minority residents of Dallas. Because of this, it is simply not possible for black or Hispanic candidates to raise— from their communities — the large amounts of money needed for an at-large City Council race. With only small amounts of money available, a black or Hispanic at-large candidate is not able to purchase radio or television advertising — an essential for any city-wide campaign in Dallas. Indeed, most cannot even find the $20,000 that would be required for one city-wide mailing of political material. And, the “door-to-door” campaigning that can be effective for single-member districts is not a viable alternative, because it is simply impossible for a candidate to “walk” the entire City of Dallas in an at-large campaign. Accordingly, the only way that a minority candidate can win an at-large race in Dallas under the 8-3 system is to obtain substantial support from the white community. Yet, it was obvious from the trial testimony that a minority candidate elected with overwhelming white support — even an excellent at-large member, like A1 Gonzalez — does not have the confidence of the black or Hispanic communities. Minorities have the right to be able to choose their own candidates; indeed, as Judge Mahon wrote in 1975, “meaningful participation in the political process must not be a function of grace, but rather is a matter of right.” the supposed “city-wide” view Therefore, under the 8-3 system, minorities are denied equal access to the three at-large seats. This severe, adverse impact upon blacks and Hispanics is not justified by the argument that at-large seats are necessary so there will be some members with a “city-wide view” on the Dallas City Council. The CRC unanimously rejected this supposed justification when it voted against any system with at-large seats. CRC Chairman Ray Hutchison correctly stated that “parochial views don’t come with single-member districts; they come with the individual.” During a CRC meeting, former Council Member Lee Simpson put it very directly: “It is baloney that single-district members do not vote on a city-wide basis.” Moreover, the testimony established that many of the at-large members of the Council — almost all of whom were from North Dallas — had not provided any “city-wide view”; instead, they simply ignored the minority areas of the city and represented the interests of North Dallas that contributed the money for the at-large races. In addition, the “city-wide view” argument totally ignores the fact that Dallas has had a council-manager form of government since 1931 — and a City Manager who has the responsibility to provide a “city-wide” view on policy issues being determined by the Council. the “two people to call” argument The City also argues that the at-large seats in the 8-3 system are justified because they give a person with a complaint about City services “two people to call instead of one” — an at-large member in addition to the single-district representative. This is not an argument to be tossed aside lightly; it should be thrown away with great force. Dallas citizens do not have only “one person” (their district representative) to call about a complaint. The City Manager and his staff run the day-to-day business of the City. Accordingly, persons with complaints about City services can call the City Manager, the City department involved, “Action Center,” someone who represents another single-member district, or even ex-council members — just as well as an at-large representative. Indeed, credible evidence established that it would be very unlikely for a black or Hispanic in South Dallas or another minority area to ask for assistance from one of the at-large Council Members in North Dallas. the mayor’s at-large place The cost of running for mayor — which has almost become prohibitive in recent years — excludes many people (whites, blacks, Hispanics, and other minorities) from a viable campaign for Place 11 (may- or). Although it is a close question, because of several factors — e.g., the serious split in credible testimony; a sincere concern about accountability of a mayor elected by colleagues on the Council, instead of all of the voters; the role of the mayor as the spokesperson for the City of Dallas; the recognition of the special position of the mayor by this Court in the Walker III opinion (public housing desegregation case) —there is justification for the continued election of the mayor at-large. However, the Court specifically notes that CRC — after considering a myriad of possibilities — determined “that 15 was the maximum operating size” of the Dallas City Council (including the at-large election of the mayor). The City Council agreed, and a 15-person Council was approved in the August 1989 referendum. This means, of course, that there would be more single-member district seats available for minorities under a 14-1 plan — even if the substantial expense of campaigning for mayor should have a disproportionate impact upon African-Americans and Hispanics. the § 2 violation As to the legal and factual elements involved in a vote dilution case, it is not necessary — and it is probably impossible — to summarize the statistical (and other) evidence that establishes that white bloc voting in Dallas usually defeats the preferred candidate of blacks and Hispanics in Dallas City Council elections. Suffice it to say that the African-American plaintiffs and the Hispanic intervenor successfully crossed the three-part Gingles threshold; then they progressed through the Zimmer factors; and, finally, they established under the “totality of the circumstances” that 8-3 system impermissibly denies African-Americans and Hispanics the equal opportunity to participate in the political process, and to elect candidates of their choice in the City of Dallas, in violation of § 2 of the Voting Rights Act. Observations About The 10-4-1 Plan This Court is precluded from ruling on the validity of the 10-4-1 plan until it has received “preclearance” under § 5 of the Voting Rights Act. However, the evidence presented at trial does permit this Court to make a few preliminary observations concerning the 10-4-1 plan. It seems obvious that a minority candidate will not be able to raise the money needed for an effective quadrant campaign from the black and Hispanic communities. This means that a black or Mexican-American quadrant candidate would not be able to purchase radio, television, or newspaper ads; could only do limited political mailings; and would not be able to run a “door-to-door” campaign in a quadrant— which will necessarily have over 250,000 people (a greater population than all but the seven largest cities in Texas). Any such adverse impact upon blacks and Hispanics (i.e., denial of access to at least 3 of the 4 quadrant seats) would not be justified by the claim that some members with a quadrant or “quasi-city wide view” are needed on the Council — or that people need “2 representatives instead of 1” to call about City services — any more than these same tenuous arguments justified denying African-Americans and Hispanics access to the three at-large seats in the 8-3 system. Without question, there are people and organizations who support the 10-4-1 plan in good faith, and for non-discriminatory, well-intentioned reasons. But it is also without question that most African-American and Hispanic individuals and major organizations vehemently oppose the 10-4-1 plan — and feel, also in good faith and not without reason, that the adoption of 10-4-1 reflected “a callous disregard” of their views on the critical issue of what would remedy the past discriminations of the 8-3 system. This schism is, of course, what prevented the bringing of “Dallas together" — and what lead to the most racially divisive election in the history of Dallas, the 10-4-1 referendum in August 1989. The Delay & The Remedy Because the City Council rejected the contrary recommendation of the CRC, there will be no Council elections in May 1991 under the 10-4-1 plan. Instead, these elections have been delayed until November 1991 “to allow 1990 census data to be used in redistrieting” or until January 1992 “if the new districts do not get approval from the United States Department of Justice by August 1, 1991.” The City asks this Court to delay and “to just give the 10-4-1 a chance” since it will just be a delay of some 6-9 months. The City’s estimate of the length of the delay of the May 1991 elections is not correct. In fact, the delay may be — and probably will be — for an unknown, but much longer period of time. The City’s request for preclearance of the 10-4-1 plan, which will be bitterly contested by African-American and Hispanic representatives, could take as long as 16 months. In addition, once the preclearance issue has been resolved, the parties will no doubt return to this Court for a determination of the validity of the 10-4-1 plan. There would be another trial and additional delay —and, although the period is uncertain, it is easy to see that the May 1991 elections could very well be delayed for two years or longer (until sometime in 1993). In the meantime, during this IV2-2 year delay, the 8-3 system (which has beén condemned as “unfair” by the CRC and the City Council, and which has been found by this Court to be in violation of § 2 of the Voting Rights Act) would continue — despite the fact that blacks and Hispanics in Dallas have been waiting for some 15 years for the voting rights to which they are so clearly entitled, but which have been denied them by the 8-3 system. In no way will this Court tell African-Americans and Hispanics that they must wait any longer for their voting rights in the City of Dallas. Therefore, an interim City Council election must be held as soon as possible in order to remedy the adverse effects of the 8-3 system — the denial of equal access to the City’s political process — which African and Mexican-Americans have suffered in Dallas since 1975, when the 8-3 system first began. III. FINDINGS OF FACT This voting rights case was filed on May 18, 1988 by the two African-American plaintiffs against the City of Dallas. On August 25, 1988, the Mexican-American intervenor joined as a party plaintiff. The case was tried from Sept. 5, 1989 through Sept. 14, 1989. Each party presented expert witnesses and statistical evidence, testimony from other witnesses and by depositions, volumes of exhibits, and the usual § 2 material showing findings established in similar or related cases. Terrazas v. Clements, 581 F.Supp. at 1349. Most of the evidence was undisputed. However, some of the testimony — particularly that concerning several critical issues — was conflicting. In judging credibility and the weight to be given to this conflicting evidence, this Court considered all of the circumstances surrounding the testimony, such as: What was the demeanor of the witness on the stand? Did the witness have any particular reason to be less than candid? Did the witness have a good memory, understand the questions, and answer them directly? Was the testimony inconsistent with something the witness had said or done earlier? Was the witness’ testimony supported, er contradicted, by other credible evidence? Based upon these factors, as well as all other factors surrounding their testimony, this Court: (i)specifically credits the testimony of Council Member A1 Lipscomb, State Senator Eddie Bernice Johnson, State Representative Fred Blair, Marvin Robinson, Dr. Yvonne Ewell, Commissioner John Wiley Price, Council Member Diane Ragsdale, Adelfa Callejo, Diana Orozco, Domingo Garcia, Roy Williams, Marvin Crenshaw, Council Member Lori Palmer and Pettis Norman (except for any testimony by these witnesses which is inconsistent with this opinion); (ii) credits that testimony given by Mayor Annette Strauss, and Council Members Jim Buerger, Harriet Miers, Charles Tandy, Max Wells, John Evans, Glenn Box and Jerry Bartos, and CRC Chairman Ray Hutchison, which is consistent with this opinion; (iii) credits the testimony of Dr. Charles Cotrell, the plaintiffs’ expert, and of Dr. Robert Brischetto, the intervenor’s expert — but discounts the testimony of the City’s expert, Prof. Delbert Taebel, because it was not credible; and (iv) credits the testimony of all other witnesses who appeared at trial or by deposition only to the extent that their testimony does not conflict with the findings of fact in this opinion. Finally, some of the findings of fact in this opinion are included to show the local atmosphere and context of particular City Council elections. This is because the required § 2 determination — the “searching practical evaluation of the past and present reality [based] ... on a functional view of the political process” (Gingles, 478 U.S. at 45, 106 S.Ct. at 2763; Westwego, 872 F.2d at 1204)-is not satisfied merely by examining evidence about specific elections or “regression models and numbers” in isolation. Instead, as the plaintiffs’ expert (Dr. Charles Cotrell) testified, elections “take place in a fabric of politics” that must be viewed with common sense in the local “atmosphere and environment within which the dynamics of politics take place.” TR. II (158-59). In addition, these “local atmosphere and context” findings are directly related to matters that must be considered under the Gingles threshold and the Zimmer factors. A. General the plaintiffs 1. Plaintiffs Roy Williams and Marvin Crenshaw are residents of the City of Dallas. They are of African-American descent and race. Both are registered voters. Each has run for election — unsuccessfully — to one of the three “at-large” places on the Dallas City Council. Each has a long history of civic and political involvement. 2. Williams, who resides in Council District 3, ran for Place 9 (at-large) in 1987 and 1989. Crenshaw, who resides in Council District 8, ran for Place 9 (at-large) in 1983, for District 8 in 1984 (in a special election), and for Place 11 (mayor) in 1987 and 1989. Williams and Crenshaw were defeated in these elections. the intervenor 3. The plaintiff-intervenor Ledbetter Neighborhood Association (“LNA”) is an organization composed largely of Mexican-American residents of Dallas. The Ledbetter area is in “far West Dallas” in Council District 1; it is approximately 85% Mexican-Ameriean, and is the largest Hispanic neighborhood in Dallas. 4. Henry Martinez and Domingo Garcia are Mexican-American residents and registered voters of the City of Dallas. Martinez is the president of LNA, and Garcia is a member. the defendant & past cases 5. The defendant in this voting rights case is the City of Dallas. This is not, of course, the first time that federal courts have considered charges that Dallas’ system for electing members of its City Council is unconstitutional or that it violates the Voting Rights Act. See Lipscomb v. Jonsson, 549 F.2d 335 (5th Cir. April 27, 1972); Lipscomb v. Wise, 399 F.Supp. 782 (N.D.Tex. March 25, 1975) (Judge Mahon); Lipscomb v. Wise, 551 F.2d 1043 (5th Cir. May 9 and July 13, 1977); Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (June 22, 1978); Lipscomb v. Wise, 583 F.2d 212 (5th Cir. 1978); Heggins v. City of Dallas, 469 F.Supp. 739 (N.D.Tex. Feb. 20 and 22, 1979) (three-judge court); and City of Dallas v. United States, 482 F.Supp. 183 (D.D.C. Dec. 7, 1979 and Feb. 25, 1980) (three-judge court). census data 6. According to the 1970 census, the City of Dallas had 844,401 citizens; 65% were white; 25% were black; and 10% were Mexican-American. 551 F.2d at 1045 (5th Cir.1977); 399 F.Supp. at 784-85 (Judge Mahon 1975). In 1975, 93% of all African-Americans in the City of Dallas resided within the “inner-city area” (or “ghetto”) described by Judge Mahon in Lipscomb v. Wise, 399 F.Supp. at 785. However, the Mexican-Americans were “diffused and spread out through all areas of the City.” 399 F.Supp. at 792-93. 7. According to the 1980 census, the City of Dallas had a total of 904,078 residents; 61.42% were white (555,270), 29.38% were African-American (265,594), and 12.29% were Mexican-American (111,083). The City’s “18-years and over” voting-age population was 67.04% white, 25.34% African-American, and 10.10% Mexican-American. 8. In 1986, according to the Census population estimate for that year, Dallas had a total of 1,003,511 residents; 47% were white (471,650), 30% were African-American (301,053), 18% were Mexican-American (180,632), and 5% were Native & Asian-American (50,176). Theoretically, the 1986 combined black and Hispanic population would form almost 4 of the 8 single-member districts under the 8-3 systems and almost 7 districts under a 14-1 plan; naturally, this calculation “takes no account of the geographic distribution of the minority population” in the City. Terrazas, 581 F.Supp. at 1334. B. History of the 8-3 System (1856-1980) 9. The City of Dallas was chartered in 1856. From at least 1876 until 1907, Dallas was governed by a City Council with a mayor elected at-large and with “aider-mans” who were either elected at-large or from single-member districts. 1907: the commission form of government 10. In 1907, the Dallas City Charter replaced the “alderman-single member ward” system with a “commission” form of government. Under it, the mayor and four commissioners were elected at-large for terms of two years. 11. This charter contained a section entitled “Segregation of the Races” — which authorized the City Council to pass ordinances “to provide for the use of separate blocks for residence, places of abode, places of public amusement, churches, schools, and places of assembly by members of the white and colored races.” 399 F.Supp. at 787 (Judge Mahon 1975). 12. Under the commission system established by the 1907 Charter — which lasted for some 24 years — no “blacks [were] elected to the Dallas City government. ” 399 F.Supp. at 787 (Judge Mahon 1975). The same was true with respect to other minorities, including Mexican-Americans. 1931: the council-manager form of government and the “6-3 at-large system” 13. In 1931, Dallas adopted a home rule charter which established a “council-manager” form of government. Under it, “City government is administered by a City Manager,” who is the “chief administrative and executive officer of the City.” The mayor “merely presides over council meetings and represents the City. He has no legislative powers qua mayor. He has no veto powers.” 551 F.2d at 1048, fn. 2 (5th Cir.1977). 14. Under this 1931 Charter, there were 9 members of the City Council; all of these were elected for two-year terms on at-large, city-wide basis — but the “candidates for Districts 1, 2, 3, 4, 5 and 6 [were] required to be bona fide residents of the corresponding six districts of the City.” The 9 at-large members of the Council elected the mayor. 15. Under this “6-3 at-large system,” City Council election ballots contained nine numbered “places,” one for each council seat, and all qualified voters in the City could cast one vote for each place. To be elected, a candidate had to receive a majority of the votes cast for his place. 16. This 1931 Charter also contained the “Segregation of the Races” section, under which the City Council could provide for segregation of the “negro race” with respect to housing, churches, schools, parks, etc. And, in 1937, the all-white City Council passed an ordinance requiring “separate spaces in commercial motor vehicles for white and black passengers.” 399 F.Supp. at 787 (Judge Mahon 1975). 17. In 1938, a survey by the Dallas City Manager specified the areas of the City that were reserved for whites, for “Negroes,” and for “Mexicans.” This 1938 survey recommended “one of the Negro slum areas” for the first low-income public housing project in Dallas (a “Negro housing project”). And, it made this recommendation concerning a low-income “Mexican housing project”: “Due to the zoning classification, the high value placed on the property and its future use as industrial property, this [the ‘Little Mexico’ area] is not a desirable location to house the Mexican slum dwellers. The Mexican project should be removed from this immediate area but should be located as near as possible to the district in which they now reside.” 18. Under the 6-3 at-large, city-wide system established by the 1931 Charter— which continued for some 37 years — no “blacks [were] elected to the Dallas City government. ” 399 F.Supp. at 787 (Judge Mahon 1975). The same was true with respect to other minorities, including Mexican-Americans. 1949: direct election of mayor 19. From 1931 to 1949, the mayor was elected by vote of the 9 at-large members of the City Council. Then, in 1949, the Charter was amended to provide for direct election of the mayor by the voters — just as Dallas had done in the first 75 years of its history (1856-1931). In 1951, the first mayor was elected under this 1949 amendment. 20. This Charter amendment in 1949 did not delete the “Segregation of the Races” section from the Dallas City Charter. In 1942, the all-white City Council adopted a resolution listing “the requirements which a taxi cab owner must have met before the cab would be permitted to carry Negro passengers.” And, in 1961, the all-white Council “agreed to contract for the engaging of ambulance service and burial of Negro paupers.” 399 F.Supp. at 787 (Judge Mahon 1975). 1950: joint report on Negro housing 21. In 1950, the “Report of Joint Committee on Negro Housing” — prepared by the Dallas Chamber of Commerce, the Dallas Citizens Council, and the Dallas InterRacial Committee — found that “the shortage of housing for Negroes in Dallas is acute and critical”; that “serious tension has resulted, not only among the colored people, but also among a considerable portion of our white population”; that some of the “present Negro residential districts are ‘hemmed in’ and cannot possibly be expanded” without the consequent “displacement of white residents”; that this “makes for forced sales and losses, disturbed and distressed communities, unrest, tension and trouble”; and that “portions of South Dallas particularly have been subjected to this kind of disturbance.” 22. This Joint Report, in expressing “sincere approval” of recently-announced plans for a West Dallas housing project that wo