     Case: 17-20030      Document: 00513862783         Page: 1     Date Filed: 02/03/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                Fifth Circuit

                                                                               FILED
                                                                           February 3, 2017
                                      No. 17-20030
                                                                            Lyle W. Cayce
                                                                                 Clerk
ALBERTO PATINO; MARIA MARI; PATRICIA GONZALES; MARIA
CARMEN MENDOZA; FRANK BORREGO; GABRIEL ROCHA BARRETO;
RICHARD SERNA; JOSEPH JOHN MARQUEZ,

               Plaintiffs–Appellees,

v.

CITY OF PASADENA,

               Defendant–Appellant.




                 On Motion from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:14-CV-3241


Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM:*
       Alberto Patino and others, who are citizens of voting age in the City of
Pasadena, Texas, brought suit in federal district court alleging that the change
in the method for electing City Council members from eight single-member
districts (the 8-0 plan) to six single-member and two at-large districts (the 6-2


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 17-20030

plan) diluted Latino votes in violation of § 2 of the Voting Rights Act. 1 The
plaintiffs also alleged that the City intentionally discriminated on the basis of
race when it enacted the 6-2 plan in violation of the Fourteenth Amendment.
At the conclusion of a bench trial, the district court entered a final judgment
in favor of the plaintiffs on both of these claims. The district court enjoined
use of the 6-2 plan in the upcoming May 2017 elections for City Council and
ordered that the City reinstitute the 8-0 plan. Pursuant to § 3(c) of the Voting
Rights Act, 2 the court ordered the City to submit any future change to a voting
map or procedure to the Department of Justice for preclearance. The City
sought a stay from the district court of injunctive relief pending appeal. The
court denied that motion. The City has applied for a stay of the district court’s
judgment and injunction pending appeal in this court. We deny the motion. 3
                                              I
       This court considers four factors when deciding whether to grant a stay
pending appeal:
           (1) whether the stay applicant has made a strong showing that
           [it] is likely to succeed on the merits; (2) whether the applicant
           will be irreparably injured absent a stay; (3) whether issuance
           of the stay will substantially injure the other parties interested
           in the proceeding; and (4) where the public interest lies. 4

The applicant bears the burden of showing that a stay is warranted. 5

       1  52 U.S.C. § 10301.
       2  52 U.S.C. § 10302(c).
        3 We address only the issues necessary to rule on the motion for a stay pending appeal.

Our determinations are for that purpose and do not bind the merits panel. See Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013).
        4 Id. at 410 (internal quotation marks omitted) (quoting Nken v. Holder, 556 U.S. 418,

425-26 (2009)). This court has recognized, however, that “where there is a serious legal
question involved and the balance of the equities heavily favors a stay . . . the movant only
needs to present a substantial case on the merits.” In re Deepwater Horizon, 732 F.3d 326,
345 (5th Cir. 2013) (internal quotation marks omitted) (quoting Weingarten Realty Inv’rs v.
Miller, 661 F.3d 904, 910 (5th Cir. 2011)).
5 Nken, 556 U.S. at 433-34; Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982).




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                                              II
       First, we clarify what is not at issue with regard to the motion for a stay.
In its briefing, the City does not assert that the district court should have
permitted the City to redraw the voting map to remedy the voter dilution found
by the district court.        Nor does the City contend that the preclearance
requirement is relevant to its motion for a stay pending appeal. The City does
not assert that use of the 8-0 plan “substantially disturbs the election process” 6
for the upcoming May election, such that a stay should issue on that basis.
       The primary focus of the City’s request for a stay is its contention that
the election held in 2015 under the 6-2 plan demonstrated that Latino voters
actually elected their preferred candidates in four of the eight districts (three
single-member districts and one at-large district), and, therefore, that the 6-2
plan does not result in discrimination or Latino voter dilution. The City urges
us to give deference to the 6-2 plan adopted by a majority of the Pasadena
voters in a special election held to decide if the 8-0 plan should be replaced.
       We recognize that the City will be irreparably injured absent a stay
because the results of the upcoming May 2017 election cannot be undone if the
election proceeds under the former 8-0 plan. 7 As to whether denial of a stay
will injure the other parties interested in the proceeding, it appears that those
who will be affected by the 2017 City Council election and favor the 8-0 plan
would be injured by a stay while those who favor the 6-2 plan would be injured


       6  Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014); see also Purcell v. Gonzalez, 549
U.S. 1, 4 (2006) (explaining that court orders affecting upcoming elections can result in voter
confusion and low voter turnout).
        7 Veasey, 769 F.3d at 896 (“If the district court judgment is ultimately reversed, the

State cannot run the election over again . . . .”); see also Planned Parenthood, 734 F.3d at 419
(noting that when a law is enjoined the government “necessarily suffers the irreparable harm
of denying the public interest in the enforcement of its laws”); accord New Motor Vehicle Bd.
v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (REHNQUIST, CIRCUIT JUSTICE, in chambers)
(“[A]ny time a State is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable injury.”).


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if the 6-2 plan is not employed. Because there are no concerns that using the
8-0 plan for the upcoming election will substantially disturb the election
process, the public interest is congruent with the final resolution of the merits
of this matter, and accordingly, the public interest factor favors neither the
City nor the plaintiffs.
       With regard to the likelihood of success on the merits, the district court
began its analysis of whether there had been a violation of § 2 of the Voting
Rights Act based on the factors set forth in Thornburg v. Gingles. 8                  The
Supreme Court explained in Gingles that “[t]his Court has long recognized that
multimember districts and at-large voting schemes may ‘operate to minimize
or cancel out the voting strength of racial [minorities in] the voting
population.’” 9 The Court then reasoned that “[m]inority 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.” 10 The Court held that “the use of
multimember districts generally will not impede the ability of minority voters
to elect representatives of their choice” “unless there is a conjunction” of three
circumstances. 11 Those circumstances are (1) “the minority group must be able
to demonstrate that it is sufficiently large and geographically compact to
constitute a majority in a single-member district,” (2) “the minority group must
be able to show that it is politically cohesive,” and (3) “the minority must be
able to demonstrate that 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

       8   478 U.S. 30, 50-51 (1986).
       9   Id. at 47 (alteration in original) (quoting Burns v. Richardson, 384 U.S. 73, 88
(1966)).
       10   Id. at 48.
       11   Id.


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candidate.” 12 The City does not dispute that the first two circumstances exist.
It does dispute that the third circumstance has been established.
      The Supreme Court explained in Bartlett v. Strickland that it is “only
when a party has established the Gingles requirements” that “a court
proceed[s] to analyze whether a violation [of § 2] has occurred based on the
totality of the circumstances.” 13 One among many factors in the totality of
circumstances to be considered is proportionality, which “links the number of
majority-minority voting districts to minority members’ share of the relevant
population.” 14
      The district court concluded that the third circumstance of the three
Gingles prerequisites exists and proceeded to analyze the totality of the
circumstances. Further, in assessing the totality of the circumstances, the
district court concluded that the 6-2 plan did not result in proportional
representation of Latinos and that even if it did, other factors supported a
finding that the 6-2 plan violated § 2. For reasons that we consider below, our
focus is on whether the City established a likelihood of success on the merits
of its arguments that the third Gingles circumstance was not established and
that even if were shown to exist, the 6-2 plan has nevertheless resulted in
proportionality.
                                          III
      The district court found that 48.2% of the citizens of voting age in the
City are Latinos, and that under the 8-0 plan in effect prior to 2015, Latinos
were a majority of the citizens of voting age in four of the eight single-member
districts. The court found that when the 2015 election occurred under the 6-2
plan, Latinos were a majority of citizen voting-age population and the majority


      12 Id. at 50-51 (citations omitted).
      13 556 U.S. 1, 11-12 (2009).
      14 Johnson v. De Grandy, 512 U.S. 997, 1014 n.11 (1994).




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of registered voters in three of the six single-member districts. The court
further found that Anglo bloc voting had occurred in the City in the past and
that “[i]n most elections, Anglo citizens vote sufficiently as a bloc to deny
Latinos the election of their preferred candidates.”                   The district court
concluded that the 6-2 plan and voting map “drop[] Latinos’ proportional
opportunity for representation from around 44%, a close approximation of
Latinos’ citizen voting-age population in the City, to 33% (both figures counting
the Mayor’s seat on the Council).”
      The City contends that there has been no showing of dilution or of
discriminatory effect because Latinos have actually been successful in electing
their preferred candidates under the 6-2 plan proportionate to their population
in the City.       The Latino-preferred candidates won in three of the single-
member districts and one of the at-large districts in the 2015 election under
the 6-2 plan, and accordingly, Latino-preferred candidates were elected to four
of the eight City Council seats. The City additionally argues that there is an
opportunity for Latinos to achieve greater-than-proportional success because
62.9% of the citizens of voting age in the single-member majority-minority
district that failed to elect the Latino-preferred candidate in 2015 are Latino.
      The City asserts various arguments flowing from these facts. One is that
the third Gingles circumstance, “that the white majority votes sufficiently as a
bloc to enable it—in the absence of special circumstances . . . usually to defeat
the minority’s preferred candidate,” 15 cannot be established because of the
success of Latino-preferred candidates.              The contention that success in
elections can demonstrate that no dilution of minority voting strength has
occurred and that such success negates the existence of the third prerequisite
in Gingles has logical appeal and finds support in the law. In Gingles, JUSTICE


      15   Thornburg v. Gingles, 478 U.S. 30, 51 (1986).


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O’CONNOR, joined by CHIEF JUSTICE BURGER and JUSTICES POWELL and
REHNQUIST, agreed with JUSTICES BRENNAN and WHITE that “consistent and
sustained success by candidates preferred by minority voters is presumptively
inconsistent with the existence of a § 2 violation.” 16
       However, the district court concluded that the successes of Latino-
preferred candidates in the 2015 City Council election was not dispositive. In
that election, 70.6% of Latino voters supported one of two Anglo candidates for
an at-large position, and the Latino-preferred candidate won. In that same
election, the Latino-preferred candidates won two of the three majority-
minority single-member districts, and another Latino-preferred candidate won
in an Anglo-majority single-member district. But the district court reasoned
that “special circumstances . . . prevented the defeat of the Latino-preferred
candidate” in two contests in Anglo-majority districts (one at-large and one
single-member). The district court noted that Wheeler, who won in an Anglo-
majority single-member district, had an Anglo surname (though he in fact is
Latino) and was an incumbent, and that Van Houte, who won an at-large seat,
also had an Anglo surname and was an incumbent.                         The district court’s
conclusion in this regard was based on the Supreme Court’s reasoning in
Gingles that “the fact that racially polarized voting is not present in one or a
few individual elections does not necessarily negate the conclusion that the
district experiences legally significant bloc voting.” 17              The Supreme Court
observed that “special circumstances, such as . . . incumbency . . . may explain
minority electoral success in a polarized contest.” 18


       16 Id. at 102 (O’CONNOR, J. concurring); see also Bartlett, 556 U.S. at 24 (2009) (“States
can—and in proper cases should—defend against alleged § 2 violations by pointing to
crossover voting patterns and to effective crossover districts. Those can be evidence, for
example, of diminished bloc voting under the third Gingles factor. . . .”).
       17 Gingles, 478 U.S. at 57.
       18 Id.




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       The City additionally contends that assuming the three Gingles
prerequisite circumstances were demonstrated, and the district court
permissibly reached the totality of the circumstances analysis, the success of
Latino-preferred candidates establishes proportionality.                The district court
reasoned that, even assuming proportionality existed, other factors supported
a finding that § 2 had been violated. The district court correctly recognized
that proportionality is only one factor the Supreme Court has instructed courts
to consider in assessing the totality of the circumstances in vote dilution
claims. 19
       We are not persuaded that the likelihood of the City’s success on the
merits is so strong that this factor tips the balance in favor of a stay. Although
the City has presented a serious legal question, the balance of the equities does
not “heavily favor[]” a stay. 20
       The City contends that the district court finding of discriminatory intent
was erroneous, relying in part on this court’s en banc decision in Veasey v.
Abbott. 21   We do not reach this issue.              The district court finding of a
discriminatory effect under § 2 of the Voting Rights Act is an independent basis
for the imposition of the injunction requiring the May 2017 election to occur
under the 8-0 plan. 22 Because we conclude that the City has failed to meet its
heavy burden to justify a stay pending appeal with respect to the district




       19  See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 436 (2006); De
Grandy, 512 U.S. at 1018-20 (1994).
        20 In re Deepwater Horizon, 732 F.3d 326, 345 (5th Cir. 2013) (internal quotation

marks omitted) (quoting Weingarten Realty Inv’rs v. Miller, 661 F.3d 904, 910 (5th Cir. 2011)).
        21 830 F.3d 216 (5th Cir. 2016) (en banc).
        22 See Gingles, 478 U.S. at 35 (“Congress substantially revised § 2 to make clear that

a violation could be proved by showing discriminatory effect alone [without proving that a
contested election mechanism was intentionally adopted] and to establish as the relevant
legal standard the ‘results test,’ applied by [the Supreme Court] in White v. Regester,” 412
U.S. 755 (1973)).


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court’s holding on discriminatory effect, we do not consider whether there is
sufficient evidence of discriminatory intent.
                                *        *         *
      For the foregoing reasons, the motion to stay is DENIED.




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