     Case: 18-11256   Document: 00515276497     Page: 1   Date Filed: 01/17/2020




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

                                                                  FILED
                                                              January 17, 2020
                                 No. 18-11256                   Lyle W. Cayce
                                                                     Clerk

ANNE HARDING; GREGORY R. JACOBS; JOHANNES PETER SCHROER;
HOLLY KNIGHT MORSE,

             Plaintiffs - Appellants

v.

COUNTY OF DALLAS, TEXAS; CLAY LEWIS JENKINS, in his Official
Capacity as County Judge of Dallas County, Texas; THERESA DANIEL;
MIKE CANTRELL; JOHN WILEY PRICE; ELBA GARCIA,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Four Anglo voters in Dallas County, Texas challenge the county’s 2011
redistricting plan for electing county commissioners, urging that it denied their
rights under § 2 of the Voting Rights Act and the Equal Protection Clause of
the Fourteenth Amendment by providing only one Anglo-majority district.
                                          I.
      Dallas County is governed by a Commissioners Court, comprising a
county judge elected at-large and four commissioners elected from single-
member districts. In 2011, the Commissioners Court concluded that
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redistricting was necessary, as the districts created in response to the 2000
Census were now malapportioned. Between 2000 and 2010, the county’s
population grew by 6.7%, and its demographics shifted. The Hispanic share of
the total population grew from 29.9% in 2000 to 38.3% in 2010 and the African-
American share increased from 20.1% to 21.9%, while the Anglo share fell from
44.3% to 33.1%, a drop of nearly 200,000 people over the decade.
       Faced with this dynamic, the Commissioners Court turned to
redistricting, first hiring redistricting counsel and then an expert in North
Texas geography and demographics, Matt Angle. There were then two
Republican commissioners, two Democratic commissioners, and a Democratic
county judge. The Court met in an executive session to discuss boundaries for
map drawing with counsel and Angle. Responding to the resulting instruction,
they presented a set of redistricting criteria, which the commissioners
unanimously adopted. 1 Using the criteria, Angle generated four maps
redistricting the county and presented them to the Commissioners Court
during a closed-session meeting. The Commissioners selected one of the maps
to be presented in three public hearings. After the hearings, the
Commissioners Court adopted the new map by a vote of three to one. 2



       1  The criteria were, in rank order, “(1) complying with the one-person, one-vote
requirement . . . , (2) complying with [Sections 2 and 5 of] the Voting Rights Act, . . .
(3) respecting population increases and decreases in Dallas County over the decade,
(4) respecting boundaries of voting tabulation districts where possible, and if not possible,
creating voting Districts that ensure adequate polling place facilities, (5) considering
completely redrawn maps, rather than single District maps, (6) respecting municipal and
geographic boundaries (but subsidiary to requirements of Constitution and Voting Rights
Act), and (7) creating geographically compact Districts composed of contiguous territory (but
subsidiary to requirements of Constitution and Voting Rights Act).”
        2 Republican Commissioner Maurine Dickey, who had previously announced that she

would not be seeking reelection, did not vote.


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      In its submission of the new map to the Department of Justice for
preclearance under § 5 of the Voting Rights Act, the Commissioners Court
explained three of the new map’s districts 3:
            The new Commissioner Precinct map maintains two current
      minority opportunity precincts and creates a new minority
      opportunity precinct in Precinct 1. Specifically, the new map
      maintains Precinct 3 as an African American opportunity precinct.
      The African American population is increased in this precinct from
      45.6% to 47.9%. Precinct 4 which is currently represented by a
      Hispanic, who was the candidate of choice of minority voters in
      2010, has not been retrogressed. In fact, the current Precinct 4 is
      49.3% Hispanic and 65.5% Black plus Hispanic. The new Precinct
      4 is 57.9% Hispanic and 72.1% Black plus Hispanic. Precinct 1 is
      a new minority opportunity precinct. Precinct 1 has a Hispanic
      population of 48.0% and is 68.4% Black plus Hispanic.
      And District 2 is an Anglo-majority district. Anglo voters account for
60.2% of its total population and 64.0% of the voting-age population. With the
new map in effect, the Commissioners Court has a Democratic county judge,
one Republican and three Democratic commissioners.
                                             II.
      In January 2015, four Anglo voters, one for each of the four districts, filed
this suit against Dallas County and the members of the Commissioners Court
in their official capacities. They alleged that the 2011 map violates § 2 of the
Voting Rights Act by diluting Anglo votes. They also brought a claim under the
Equal Protection Clause of the Fourteenth Amendment, assertedly two
separate claims: intentional vote dilution and racial gerrymandering. 4




      3   The Supreme Court had not yet decided Shelby Cty. v. Holder, 570 U.S. 529 (2013).
      4   Although Plaintiffs asserted other claims, they are not at issue here.


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       Two years and two amended complaints later, the parties cross-moved
for summary judgment. The district court concluded that the “equal protection
claim” was pleaded not as a racial gerrymandering claim but “as a vote dilution
claim, and nothing more.” The district court set the case for trial thirty days
hence. Plaintiffs did not seek leave to amend their complaint a third time.
                                            III.
       The case proceeded to a four-day bench trial with testimony from each of
the four Plaintiffs and two expert witnesses for each side. The district court
concluded that Plaintiffs “failed to prove that, were a second Anglo majority
district drawn, Anglos would possess the potential to elect an Anglo
Republican.” Plaintiffs appeal the rejection of their § 2 vote dilution claim after
trial and the district court’s pre-trial ruling that no claim of racial
gerrymandering was before the court.
                                             IV.
       Vote dilution suits are “peculiarly dependent upon the facts of each case,
and require[] an intensely local appraisal of the design and impact of the
contested electoral mechanisms.” 5 On summary judgment and after trial,
questions of law are reviewed de novo, while questions of fact are reviewed for
clear error. 6 The district court’s findings as to the threshold conditions
established in Thornburg v. Gingles and the district court’s ultimate findings
on vote dilution are subject to review only for clear error. 7 A finding is clearly
erroneous if the “reviewing court is left with the definite and firm conviction


       5  Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (internal quotation omitted).
       6  N.A.A.C.P. v. Fordice, 252 F.3d 361, 364–65 (5th Cir. 2001).
        7 Sensley v. Albritton, 385 F.3d 591, 595 (5th Cir. 2004). These three conditions

address the existence of racially polarized voting and the relative power of the racial voting
blocs. See Gingles, 478 U.S. at 50–51.


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that a mistake has been committed. . . .” 8 By contrast, a finding is not clearly
erroneous simply because the reviewing court “is convinced that it would have
decided the case differently.” 9
                                            V.
       We turn first to Plaintiffs’ standing to assert their § 2 vote dilution claim.
The standing gate opens the courthouse door to plaintiffs with an injury-in-
fact that is traceable to the defendant’s actions and likely to be redressed by a
favorable decision. 10 In vote dilution cases, the “harm arises from the particular
composition of the voter’s own district, which causes his vote—having been
packed or cracked—to carry less weight than it would carry in another,
hypothetical district.” 11
       The district court found that each Plaintiff is an Anglo voter residing in
a different district in Dallas County and that each asserts a legally cognizable
injury—the dilution of their votes, that the Anglo voting population is packed
into District 2, wasting Anglo voting power, and that the remainder of the
Anglo population is cracked into Districts 1, 3, and 4, diluting the strength of
their Anglo voters.
       While the uncontested facts appear to establish standing, Defendants
urge that three of the Plaintiffs, through their testimony, nonetheless lost their
otherwise-valid standing. As the argument goes, one Plaintiff testified at trial



       8 Anderson v. Bessemer City, 470 U.S. 564, 573 (1985).
       9 Id.
       10 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
       11 Gil v. Whitford, 138 S. Ct. 1916, 1931 (2018); see also id. at 1935 (Kagan, J.,

concurring in the judgment) (quoting Wesberry v. Sanders, 376 U.S. 1, 7 (1964)) (“To have
standing to bring a partisan gerrymandering claim based on vote dilution, then, a plaintiff
must prove that the value of her own vote has been ‘contract[ed].’ And that entails showing,
as the Court holds, that she lives in a district that has been either packed or cracked.”).


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that her only injury was that her commissioner—a Republican whom she could
not identify—was not conservative enough. Such testimony, Defendants say,
admits the want of an injury to a legally cognizable interest and cannot be
redressed in this suit, while Plaintiffs dispute the characterization and claimed
effect of the testimony.
      This argument fails. The Plaintiff’s inability to explain the legal theory
underlying her vote dilution claim is not fatal. Standing is not a pop quiz
administered by able defense attorneys to unsophisticated plaintiffs. It is
conceded that each voter resides in a district where their vote has been cracked
or packed. That is enough. And the contention that the Plaintiffs’ injury cannot
be redressed here collapses standing and merit resolution.
                                        VI.
                                         A.
      The district court concluded that Plaintiffs did not prove that Anglos, a
minority in Dallas County, have the potential to elect their preferred
candidate, a Republican, in a second commissioner district. Plaintiffs insist
that the district court applied the wrong standard, that they need only provide
an alternative map with two Anglo-majority districts. In their view, the district
court, by demanding more evidence, has required them to show a “sure win,”
not an opportunity of success. 12
                                         1.
      Section 2 of the Voting Rights Act prohibits any “voting qualification or
prerequisite to voting or standard, practice, or procedure . . . which results in
a denial or abridgement of the right of any citizen of the United States to vote


      12Defendants agree with the decision of the district court and offer additional
arguments in its support, which we do not reach.


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on account of race or color[.]” 13 It governs efforts to dilute the vote of racial
minorities through redistricting. To establish a § 2 vote dilution claim, a
plaintiff must show, “based on the totality of circumstances, . . . that the
political processes leading to nomination or election” 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.” 14 Section 2 does
not, however, “establish[] a right to have members of a protected class elected
in numbers equal to their proportion in the population.” 15
      In Gingles, the Supreme Court articulated a two-step test for
establishing a § 2 vote dilution claim. 16 At the first step, the plaintiff must
satisfy three threshold conditions: A “minority group” must be “sufficiently
large and geographically compact to constitute a majority in a single member
district”; 17 the minority group must be “politically cohesive”; 18 and the majority
group must vote as a bloc such that it can “usually . . . defeat the minority’s
preferred candidate.” 19 “Failure to establish any one of these threshold
requirements is fatal,” 20 thresholds that guide the determination of whether
“minority voters possess the potential to elect representatives in the absence
of the challenged structure or practice[.]” 21 If minority voters lack this
potential, “they cannot claim to have been injured by that structure or


      13 52 U.S.C. § 10301(a).
      14 Id. § 10301(b).
      15 Id.
      16 478 U.S. at 50–51.
      17 Id. at 50.
      18 Id. at 51.
      19 Id.
      20 Campos v. City of Hous., 113 F.3d 544, 547 (5th Cir. 1997).
      21 Gingles, 478 U.S. at 51 n.17.




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practice.” 22 As the Supreme Court explained in Abbott v. Perez, “it is hard to
see” how the Gingles factors “could be met if the alternative to the districting
decision at issue would not enhance the ability of minority voters to elect the
candidates of their choice.” 23
       After meeting the three prongs of Gingles, a plaintiff must establish that
the “totality of the circumstances” supports a finding of vote dilution. 24 This
entails a functional analysis that is “peculiarly dependent upon the facts of
each case and requires an intensely local appraisal of the design and impact of
the contested electoral mechanisms.” 25
                                            2.
       The able district court concluded that Plaintiffs satisfied the first prong
of Gingles—the Anglo minority group was large and compact. It then analyzed
the Plaintiffs’ evidence in support of the other two prongs of Gingles—the
cohesion of the Anglo voters and the cohesion of the Hispanic voters. Turning
to Plaintiffs’ alternative map, as well as the data and expert testimony offered
by the parties, the district court concluded that Plaintiffs “have failed to prove
the ‘ultimate question’ of vote dilution under § 2 because they have not proved
that the minority group (i.e., Anglos) ‘has the potential to elect a [Republican],’
which plaintiffs maintain would be the Anglo candidate of choice, in a possible
second commissioner district.” 26 Accenting the completeness of this failure, the



       22 Id.
       23 138 S. Ct. 2305, 2332 (2018).
       24 Gingles, 478 U.S. at 79.
       25 Id. (internal quotation omitted).
       26 In conducting its analysis, the district court necessarily considered the Gingles

factors, finding, for example, that Plaintiffs “failed to take into account the geographical
dispersion of Anglo Democrats and the high concentration of these types of voters in the
neighborhoods plaintiffs would include in their proposed ‘Anglo opportunity’ districts.”


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district court observed that this followed even if it assumed Plaintiffs satisfied
the three Gingles factors:
              [P]laintiffs did not offer any evidence at trial that would
       show how Republican candidates would fare in commissioner
       elections under their Remedial Plan. In fact, plaintiffs offered no
       evidence or analysis of any election using their proposed Remedial
       Plan. . . .
              . . . Plaintiffs have not presented evidence regarding the
       “functionality” of their proposed Remedial Plan, and have failed to
       prove that it is even possible to create two commissioner districts
       in which Dallas County Anglos would have an opportunity to elect
       a Republican (which plaintiffs maintain is the Anglo candidate of
       choice).
       Ultimately, the district court found that the Plaintiffs’ alternative map
would lessen the potential for Anglo voters to elect a second county
commissioner, likely resulting in all four districts being represented by
Democrats.
                                             3.
       Plaintiffs first insist that they need only show an increased
opportunity—not guaranteed success—for the Anglo-preferred candidate in a
hypothetical district. True enough. 27 But an alternative map containing an
additional majority-minority district does not necessarily establish an
increased opportunity. The Supreme Court’s decision in Abbott v. Perez
illustrates this commonsense conclusion. The Court considered whether the
drawing of two districts diluted the voting power of the Latino population. 28
The government’s map contained one Latino opportunity district and one


       27 See Gingles, 478 U.S. at 50 n.17 (emphasis added) (“Unless minority voters possess
the potential to elect representatives in the absence of the challenged structure or practice,
they cannot claim to have been injured by that structure or practice.”).
       28 Abbott, 138 S. Ct. at 2332.




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Anglo district. Seeking a second Latino opportunity district, the plaintiffs in
Abbott proposed a remedial map with different district lines. In that map,
Latinos represented a majority of voting age citizens in both districts. Using
election returns from 2010 and 2016, the plaintiffs’ expert estimated the
performance of the two proposed Latino opportunity districts: “[O]ne
performed for Latinos in only 7 out of 35 relevant elections, and the other did
so in none of the 35 elections.” 29 After reviewing this evidence, the Supreme
Court concluded that plaintiffs’ alternative map did not improve the ability of
Latinos to elect their preferred candidates. 30 As a result, the vote dilution claim
failed even though the alternative map there—just like the alternative map
here—contained an additional majority-minority district.
      Plaintiffs’ efforts to diminish Abbott fail. They argue that Abbott’s force
is limited to cases where “the plaintiff’s own expert testified that no possible,
legal map could perform.” In their view, Abbott “did not hold that plaintiffs
have the burden to prove such performance, only that its stipulated absence
was problematic.” Not so. The Supreme Court held that “[c]ourts cannot find
§ 2 violations on the basis of uncertainty.” 31 The Court expressly rejected the
lower court’s conclusion that a § 2 claim could prevail because it had not been
disproven. 32 Arguably, Abbott simply applied this longstanding rule and did
not raise the threshold for plaintiffs asserting § 2 claims. More importantly,




      29 Id.
      30 Id.
      31 Id. at 2333.
      32 Id.




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our decision need not turn on Abbott’s reach. As recognized in Gingles, minority
voters must have the potential to elect another candidate of their choosing. 33
       Our colleague argues that Plaintiffs have been deprived of fair notice
that they must demonstrate an alternative plan under which they could elect
an additional Anglo-preferred candidate—in essence, that they lacked notice
of a new standard. Abbott observed that “[u]nder Gingles, the ultimate
question is whether a districting decision dilutes the votes of minority voters,
. . . and it is hard to see how this standard could be met if the alternatives to
the districting decision at issue would not enhance the ability of minority
voters to elect the candidates of their choice.” 34 The day after Abbott was
decided, Defendants in this case flagged the opinion for the district court.
Plaintiffs responded, urging that Abbott worked no relevant change in the law,
that the Supreme Court “addressed § 2 only to the extent that the lower court
had ruled that a plaintiff might succeed on its § 2 claim,” and that Abbott
“recognized the uncertainty in that might and refused to uphold an
invalidation of legislatively enacted districts on the basis of something the
lower court did not actually find.” And Plaintiffs did not seek the opportunity
to present further evidence. On August 23, 2018, two months after Abbott, the
district court issued its memorandum opinion and judgment. The Notice of
Appeal followed. There was no want of notice and no request for an opportunity


       33  Gingles, 478 U.S. at 50 n.17 (“Unless minority voters possess the potential to elect
representatives in the absence of the challenged structure or practice, they cannot claim to
have been injured by that structure or practice.”); see also Cooper v. Harris, 137 S. Ct. 1455,
1470 (2017) (quoting Growe v. Emison, 507 U.S. 25, 40 (1993) (The Gingles factors “are needed
to establish that ‘the minority [group] has the potential to elect a representative of its own
choice’ in a possible district, but that racially polarized voting prevents it from doing so in
the district as actually drawn because it is ‘submerg[ed] in a larger white voting
population.’”).
        34 Abbott, 138 S. Ct. at 2332 (citing LULAC v. Perry, 548 U.S. 399, 425–26 (2006)).




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to present further evidence, and no party has brought this argument of no
notice to the Court.
      Plaintiffs contend that even if Anglo voters are no more likely to elect a
second Anglo commissioner under their alternative map, they will have
enhanced influence over multiple districts. Plaintiffs acknowledge that § 2
does not require the creation of these “influence districts.” 35 However, they
contend that “this Court has never said that once the Gingles factors are
otherwise met, a minority group’s ability to influence an election is irrelevant
to their opportunity ‘to participate in the political process and to elect
representative of their choice.’”
      Perhaps, but this ability is not enough to establish a vote dilution claim.
In Abbott, it was dispositive that plaintiffs’ alternative map did not provide
Latinos with an improved opportunity to elect another Latino-preferred
candidate. 36 The Supreme Court dismissed the vote dilution claim without
considering whether an influence district could be created. 37 We are pointed to
no case in which the ability to create an influence district was considered
sufficient to establish a § 2 vote dilution claim.
                                              4.
      Plaintiffs argue that even if they need to show that a second Anglo-
preferred candidate could be elected under an alternative map, the district
court incorrectly applied the standard to the evidence. Specifically, they
contend that the district court’s analysis of their alternative map was flawed
for three reasons: (1) its failure to account for non-Anglo cross-over voting, (2)



      35 See Bartlett v. Strickland, 556 U.S. 1, 18 (2009) (plurality opinion).
      36 Abbott, 138 S. Ct. at 2333.
      37 Id.




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its reliance on estimates produced using exogenous elections, and (3) its failure
to properly consider the “totality of the circumstances.”
       1. Plaintiffs assert that the district court accounted for Anglo cross-over
voting for Democratic candidates but did not consider non-Anglo cross-over
voting for Republican candidates. 38 But the district court relied on estimates
of election outcomes that accounted for all Dallas voters, including non-Anglo
cross-over voters.
       Plaintiffs next insist that the court failed to consider other relevant
factors, such as differences in voter turnout or the identity of specific
candidates. Of course, turnout, the candidates’ identity, and many other
factors could undermine the accuracy of the predictions. But Plaintiffs offered
no evidence that they did undermine their accuracy. More to the point, the
burden remains upon Plaintiffs to provide evidence that Anglos could elect a
second Republican commissioner. Yet as the district court found, “plaintiffs did
not offer any evidence at trial that would show how Republican candidates
would fare in commissioner elections under their Remedial Plan,” and the
Defendants did.
       2. Plaintiffs urge that the district court should not have relied on “two
cherry-picked examples from exogenous elections in an unusual year . . . .” 39
Angle, one of Defendants’ expert witnesses, estimated the performance of
Plaintiffs’ alternative map by using the election returns from the 2016



       38 Cross-over voting occurs when a voter supports the candidate that is not preferred
by the majority of the voter’s racial group—for example, a Hispanic voter who votes for a
Republican candidate.
       39 Exogenous elections are “elections in a district for positions that are not exclusively

representative of that district.” Rodriguez v. Harris Cty., 964 F. Supp. 2d 686, 759 (S.D. Tex.
2013), aff’d sub nom. Gonzalez v. Harris Cty., 601 F. App’x 255 (5th Cir. 2015).


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presidential election and 2016 Dallas County sheriff’s election. These
exogenous elections, Plaintiffs argue, are not predictive of behavior in future
local elections. Although this Court has “unequivocally stat[ed] that evidence
from elections for the office at issue is more probative,” it has “not bar[red]
limited consideration of exogenous elections” as here. 40
      3. Pivoting again, Plaintiffs contend that the close defeats of Anglo-
preferred candidates prove that their alternative plan gives Anglo voters the
chance to elect another Republican commissioner. Under the Plaintiffs’
alternative map, the Anglo-preferred candidate would lose 49.4% to 50.6% in
District 2 and 49.2% to 50.8% in District 4. Yet as the district court noted,
“plaintiffs offered no evidence or analysis of any election using their proposed
Remedial Plan,” a burden theirs to carry. “Any lack of evidence in the record
regarding a violation of the Voting Rights Act of 1965 must be attributed to
[plaintiffs], not to the district court.” 41 We are not “left with the definite and
firm conviction that a mistake has been committed . . . .” 42
                                          B.
      At the hearing on summary judgment, the district court concluded that
there was no racial gerrymandering claim in the case—that it was “pleaded as




      40  Fordice, 252 F.3d at 374 (internal citation omitted).
      41  League of United Latin Am. Citizens #4552 (LULAC) v. Roscoe Indep. Sch. Dist.,
123 F.3d 843, 846 (5th Cir. 1997).
       42 Anderson v. Bessemer City, 470 U.S. 564, 573 (1985).




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[an intentional] vote dilution claim, and nothing more.” Plaintiffs challenge
that decision.
       A racial gerrymandering claim is “analytically distinct” from an
intentional vote dilution claim. 43 The Supreme Court explained the difference
in Miller v. Johnson:
              Whereas [an intentional] vote dilution claim alleges that the
       [government] has enacted a particular voting scheme as a
       purposeful device to maintain or cancel out the voting potential of
       racial or ethnic minorities, an action disadvantaging a particular
       race, the essence of [a racial gerrymandering claim] . . . is that the
       [government] has used race as a basis for separating voters into
       districts. 44
       To prove an intentional vote dilution claim, a plaintiff must show a
discriminatory purpose and discriminatory effect. 45 Redistricting plans are
unconstitutional if “conceived or operated as purposeful devices to further
racial discrimination by minimizing, cancelling out or diluting the voting
strength of racial elements in the voting population.” 46 Because intentional
vote dilution claims are infrequently asserted, “[t]he role that § 2 and Gingles
play in intentional vote dilution claims as opposed to results-only claims is
somewhat unsettled.” 47 By contrast, a racial gerrymandering claim establishes
“that race was improperly used in the drawing of the boundaries of one or more




       43 Shaw v. Reno, 509 U.S. 630, 652 (1993).
       44 515 U.S. 900, 911 (1995) (internal quotations omitted).
       45 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).
       46 Rogers v. Lodge, 458 U.S. 613, 617 (1982).
       47 Perez v. Abbott, 253 F. Supp. 3d 864, 942 (W.D. Tex. 2017). Because a § 2 vote

dilution claim can be proven without a showing of intentional discrimination, few voters have
asserted intentional vote dilution claims since “the 1982 amendments to the Voting Rights
Act made effects a basis for section 2 liability.” Veasey v. Abbott, 830 F.3d 216, 335 n.15 (5th
Cir. 2016) (Costa, J., dissenting in part).


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specific electoral districts.” 48 In such cases, race must have been “the
predominant factor motivating” the redistricting process and “subordinat[ing]
traditional race-neutral districting principles, including but not limited to
compactness, contiguity, and respect for political subdivisions or communities
defined by actual shared interests[.]” 49
       The complaint contained an “Equal Protection” claim arising under the
Fourteenth Amendment. In support, the complaint’s statement of the claim for
relief stated:
              The facts alleged constitute a denial to the Plaintiffs of rights
       guaranteed by the Equal Protection Clause of Section 1 of the 14th
       Amendment to the United States Constitution. The
       Commissioners Court crafted the Discriminating Map and each of
       its four (4) component CCDs to purposefully fragment Dallas’s
       Anglos, dispersing them among the four (4) CCDs without regard
       to traditional, neutral redistricting principles. The Commissioners
       Court designed the Discriminating Map to reduce and lesson
       Dallas’s Anglos’ electoral opportunities significantly below the
       level of opportunities that would have been available under a map
       compliant with neutral principles. This fragmentation provides
       undue voting advantages to Dallas’s non-Anglo, ethnic-bloc-voting
       majority. The Discriminating Map was intentionally crafted to
       allow Dallas’s ethnic majority coalition to dominate the
       Commissioners Court beyond what their voting power and
       geographic distribution would otherwise suggest and to deny
       Dallas’s Anglos the chance to meaningfully participate in the
       choice of any commissioner outside of CCD 2.
       As Plaintiffs note in their brief, their complaint also stated: “[R]ace was
the predominant factor in the Commissioners Court’s crafting of the


       48Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015).
       49Miller, 515 U.S. at 916. “[I]f racial considerations predominated over others, . . . the
State [must] prove that its race-based sorting of voters serves a ‘compelling interest’ and is
‘narrowly tailored’ to that end.” Cooper, 137 S. Ct. at 1464. The Supreme Court has assumed
that complying with the Voting Rights Act is a compelling interest. Id.


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Discriminating Map as a whole and in the design of each of the Discriminating
Map’s component four (4) CCDs.” This statement is not found in the claim for
relief. Rather, it came five pages earlier and was incorporated by reference into
the Equal Protection claim. In Plaintiffs’ view, these allegations are enough to
state a racial gerrymandering claim.
       The district court, however, concluded that Plaintiffs pled an intentional
vote   dilution   claim,    not   the   analytically    distinct   claim    of   racial
gerrymandering. A racial gerrymandering claim (often called a Shaw claim) is
distinct and far from subtle in its demands, and Plaintiffs gave no notice that
it was being urged. Almost three years before the summary judgment ruling,
Defendants in their motion to dismiss had flagged a possible effort to make the
complaint: “To the extent Plaintiffs purport to make a racial gerrymandering
claim, they also fail to state a claim. . . .” Plaintiffs responded but did not clarify
their complaint; rather, they labeled the relevant portion of their response
“Analysis of a 14th Amendment, Vote-Dilution Claim.” The district court
dismissed the motion, concluding that Plaintiffs had pled “plausible claims
under the Voting Rights Act and the Equal Protection Clause.” One month
later, Plaintiffs amended their complaint but did not clarify that they were
pursuing a racial gerrymandering claim. Nor did they clarify in subsequent
briefing. After summary judgment, Plaintiffs did not seek leave to add a racial
gerrymandering claim to their complaint. Given the distinctive character of a
Shaw claim, that failure alone is sufficient to reject this claim.
       All the same, the district court’s decision was correct: Plaintiffs did not
plead a racial gerrymandering claim. The decision of the three-judge district




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                                     No. 18-11256

court in Perez v. Abbott is instructive. 50 The court concluded that two different
complaints failed to state racial gerrymandering claims. The first failed
primarily because the “Fourteenth Amendment claims [were] couched only in
terms of intentional discrimination and vote dilution.” 51 The complaint also
failed to cite key racial gerrymandering cases, like Shaw v. Reno 52 or Miller v.
Johnson, 53 or to “specifically argue a racial gerrymandering claim.” 54 Nor was
it enough that “a substantial amount of the evidence relevant to the intentional
discrimination claims also supports a finding of unconstitutional racial
gerrymandering.” 55
      The second complaint was equally deficient. 56 It alleged that “Latino and
African American voters in Dallas and Tarrant Counties have been splintered
and fragmented in both 2011 and 2013 to diminish their ability to effectively
participate in the political process[.]” 57 But the court found that “these
allegations appear[ed] to support only their intentional vote dilution claim[.]” 58
      The court did conclude, however, that a third complaint in Perez “clearly
pleaded” a racial gerrymandering claim. 59 But that claim was not contested,
and the complaint alleged seven times that race predominated in different
districts. The actual claim for relief consisted of only a substantive sentence
and a clause incorporating prior allegations by reference.



      50 253 F. Supp. 3d 864 (W.D. Tex. 2017).
      51 Perez, 253 F. Supp. 3d at 932–34.
      52 509 U.S. 630.
      53 515 U.S. 900.
      54 Perez, 253 F. Supp. 3d at 932.
      55 Id.
      56 Id. at 933.
      57 Id. (internal quotation omitted).
      58 Id.
      59 Id.




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      The complaint before us only once alleged that race predominated, and
it made this allegation five pages before stating the claim for relief. Moreover,
unlike the brief claim for relief in the third complaint in Perez, the Plaintiffs’
claim for relief was substantial, spanning fifteen lines of text. It did not
mention Shaw, Miller, or any other racial gerrymandering cases. And though
some of the allegations in the claim for relief are consistent with both vote
dilution and racial gerrymandering claims, allegations that are merely
consistent with a claim provide anemic notice that cannot be seen as sufficient.
Plaintiffs, aware of the uncertainty flagged by Defendants, never sought leave
to amend at any stage of the case. We therefore hold that Plaintiffs did not
plead a Shaw claim.
                                      VII.
      We affirm the district court’s refusal to entertain a claim of racial
gerrymandering and its denial of the vote dilution claim after trial.




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                                  No. 18-11256

JAMES C. HO, Circuit Judge, concurring in part and dissenting in part:
      In Abbott v. Perez, 138 S. Ct. 2305 (2018), the Supreme Court increased
the evidentiary burden on plaintiffs in vote dilution cases under Section 2 of
the Voting Rights Act. I agree with the majority that, based on the evidence
presented at trial, the vote dilution claim in this case fails under Perez.
      But Perez was not decided until after the close of trial in this case.
Plaintiffs should have the opportunity on remand to meet the new evidentiary
standard announced in Perez. For that reason, I respectfully dissent.
                                      ***
      For decades, the Supreme Court has applied a two-prong test to assess
vote dilution claims under Section 2 of the Voting Rights Act, 52 U.S.C.
§ 10301. See Thornburg v. Gingles 478 U.S. 30, 50–51 (1986). First, the
plaintiff must satisfy three threshold conditions, commonly known as the
Gingles factors: (1) the racial minority group must be “sufficiently large and
geographically compact to constitute a majority in a single member district,”
(2) that minority group must be “politically cohesive,” and (3) the majority must
vote as a bloc such that it can “usually . . . defeat the minority’s preferred
candidate.” Id. at 50–51. See also LULAC v. Perry, 548 U.S. 399, 425–26
(2006) (same). Second, if the plaintiff satisfies all three Gingles factors, she
must then demonstrate that vote dilution has occurred under the totality of
the circumstances test set forth by the Court—in essence, whether a history of
racial discrimination exists in the relevant jurisdiction. Id. at 426.
      Prior to Perez, the Court made clear that, once a plaintiff is able to meet
the three Gingles factors, the vote dilution claim proceeds to the totality of the
circumstances test. “If all three Gingles requirements are established, the
statutory text directs us to consider the ‘totality of circumstances.’” Id. at 425
(quoting Johnson v. De Grandy, 512 U.S. 997, 1011 (1994)). And the totality


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of the circumstances test is not arduous—once the Gingles factors are met,
courts will have “good reason to believe that § 2 requires drawing a majority-
minority district.” Cooper v. Harris, 137 S. Ct. 1455, 1470 (2017). See also
Clark v. Calhoun County, 21 F.3d 92, 97 (5th Cir. 1994) (“[I]t will be only the
very unusual case in which the plaintiffs can establish the existence of the
three Gingles factors but still have failed to establish a violation of § 2 under
the totality of the circumstances”).
      The reason for this framework is simple: Once a plaintiff is able to
satisfy the three Gingles factors, courts are satisfied that the minority group
will have the opportunity to elect a representative of its choice. See, e.g.,
Harris, 137 S. Ct. at 1470 (“Those three showings . . . are needed to establish
that the ‘minority [group] has the potential to elect a representative of its own
choice.’”) (quoting Growe v. Emison, 507 U.S. 25, 40 (1993)).
      Perez alters this framework. In addition to the three Gingles factors,
Plaintiffs must survive an additional inquiry before reaching the totality of the
circumstances test. Plaintiffs must now affirmatively prove that the minority
group will have a “real” opportunity to elect representatives of its choice. Perez,
138 S. Ct. at 2333.
      So after Perez, it is no longer enough for plaintiffs to draw a proposed
district that satisfies the three Gingles factors. It must additionally prove that
the proposed district will in fact perform as plaintiffs hope.
      This performance requirement is new.            No prior Supreme Court
precedent required evidence of performance prior to Perez—nor have the
parties or the district court cited any. See also Perez, 138 S. Ct. at 2358
(Sotomayor, J., dissenting) (criticizing majority for requiring evidence of
performance); cf. Richard L. Hasen, Suppression of Minority Voting Rights Is
About to Get Way Worse, SLATE (June 25, 2018), (“[I]n a pretty brief but


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significant part of the majority opinion, the court in Abbott seems to make it
harder for plaintiffs to win cases under Section 2.”), https://slate.com/news-
and-politics/2018/06/the-abbott-v-perez-case-echoes-shelby-county-v-holder-
as-a-further-death-blow-for-the-voting-rights-act.html.
      In this case, the district court denied Plaintiffs’ vote dilution claim based
on Perez. It held that Plaintiffs satisfied the first Gingles factor and presumed
that they satisfied the second and third factors as well. It nevertheless rejected
Plaintiffs’ vote dilution claim—not under the totality of the circumstance test,
but because Plaintiffs failed to prove performance. See Harding v. County of
Texas, 336 F. Supp. 3d 677, 694–95 (N.D. Tex. 2018) (“[A]ssum[ing] that
plaintiffs have satisfied each of the three Gingles prongs, the court still finds
that they have failed to prove the ultimate question of vote dilution under § 2
because they have not proved that the minority group (i.e., Anglos) has the
potential to elect a Republican, which plaintiffs maintain would be the Anglo
candidate of choice.”) (cleaned up).
      The district court reached this conclusion, however, despite the fact that
Perez was not decided until after the close of trial. I would remand to give the
parties the opportunity to submit evidence under Perez.
                                       ***
      The act of redrawing an electoral district is an inherently politicized
matter. So courts naturally proceed with extreme caution before intervening—
indeed, three members of the Supreme Court have suggested that courts
should not decide vote dilution claims under Section 2 of the Voting Rights Act
at all.   See Perez, 138 S. Ct. at 2335 (Thomas, J., joined by Gorsuch, J.,
concurring); Holder v. Hall, 512 U.S. 874, 946 (1994) (Thomas, J., joined by
Scalia, J., concurring in the judgment). The majority’s reluctance to permit
further proceedings on Plaintiffs’ vote dilution claim is thus appropriate.


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       But Plaintiffs here have not had the opportunity to prove their case with
full notice of the evidentiary standards that will govern their claim. I take no
position on how their claim would be resolved on remand. But there is enough
here to warrant further review under the new governing standard. 1
       For these reasons, I would remand for further proceedings on Plaintiffs’
Section 2 vote dilution claim. I respectfully dissent in part.




       1 Consider, for example, the racially charged comments in the record to date—a record
that includes comments by one powerful county commissioner that “all of you are white, go
to hell,” as well as the disparaging description of his fellow county commissioner (the one
whose very district is at issue in this case) as “Honey Boo Boo.” Consider also that
Defendants’ evidence of non-performance to date is less than compelling—close margins from
only two exogenous races during an anomalous election cycle. See Majority Op. 14 (denying
claim on the ground that “the Anglo-preferred candidate would lose 49.4% to 50.6% in District
2 and 49.2% to 50.8% in District 4”); NAACP v. Fordice, 252 F.3d 361, 374 (5th Cir. 2001)
(instructing courts to make only “limited” use of “exogenous election” data). Remand would
provide both sides full and fair opportunity to strengthen their evidence in light of Perez.


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