                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                               F I L E D
            IN THE UNITED STATES COURT OF APPEALS
                                                                              November 25, 2003
                      FOR THE FIFTH CIRCUIT                              Charles R. Fulbruge III
                                                                                 Clerk


                               No. 02-31065



WILLIAM H. PREJEAN; ET AL,

                                                 Plaintiffs,

HARRY J. CHAUVIN; EMILE POCHE; NED C. GOLDSTON;
DENNIS P. LOUVIERE; EUGENE J. SCHEXNAYDER,

                                                     Plaintiffs-Appellants,

                                   versus

M. J. FOSTER, JR., Governor of the State of Louisiana;
RICHARD P. IEYOUB, Attorney General of the State of
Louisiana; W. FOX MCKEITHEN; JERRY M. FOWLER,
Commissioner of Elections of the State of Louisiana;
STATE OF LOUISIANA,

                                                     Defendants-Appellees,

      and

JANICE G. CLARK; ORSCINI B. BEARD; EDDIE G.
CRAWFORD; VOTER INFORMATION PROJECT, INC.,
LOUIS SCOTT; SYLVIA COOKS; CONNIE SADLER;
LLOYD DANGERFIELD; TOM NELSON; ALBERT
RICHARD; BRENDA FORD; EDWARD LARVADAIN;
JOSIE FRANK; NORBERT C. RAYFORD,

                                                     Intervenor Defendants-Appellees.

                       ----------------------------------
      JOHN OREN, ET AL.,

                                                      Plaintiffs,

      ROBERT J. HEATH,

                                                      Plaintiff-Appellant,

                                        versus

      M. J. FOSTER, JR., also known as Mike Foster, Governor
      of the State of Louisiana, in his Official Capacities; RICHARD
      IEYOUB, Attorney General of the State of Louisiana, in his
      official capacity; W. FOX MCKEITHEN, Secretary of State
      for the State of Louisiana, in his official capacity; JERRY M.
      FOWLER, Commissioner of Elections for the State of
      Louisiana, in his official capacities,

                                                      Defendants-Appellees.


                  Appeal from the United States District Court for
                         the Middle District of Louisiana
                            (USDC No. 96-CV-3418)
          _______________________________________________________


Before REAVLEY, HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM:*

      The questioned legislation (Act 780) created a subdistrict with an

approximately 75 percent black population and its voters authorized to elect 1 of the



      *
        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.
                                           2
5 district judges. The other subdistrict is 80 percent white and its voters authorized

to elect 4 of the 5 judges. Plaintiffs challenged this act as violative of the Equal

Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and

Section 2(a) of the Voting Rights Act. A bench trial was conducted in which the

plaintiffs’ claims were dismissed.

      Appellees have challenged the appellants’ standing insofar as some of the

plaintiffs may not have proved that they live in the majority black subdistrict. There

must be evidence in the record that at least one of the plaintiffs lives in the black

majority subdistrict. In cases with multiple plaintiffs, the presence of at least one

party with standing makes the case justiciable. Dep’t of Commerce v. U.S. House of

Representatives, 525 U.S. 316, 330 (1999). Thus, if any of the extant plaintiffs,

Emile Poche, Ned C. Goldston, Dennis P. Louviere, produced evidence of their

residence in sub-district 1, then the court may proceed to the merits. Bd. of Educ. of

Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 827 n.1 (2002). All three plaintiffs

testified at trial that they were only able to vote for Judge Turner in the 23rd Judicial

District Court elections which necessarily means that they lived in the relevant

subdistrict. See Tr. at I-28, I-36, II-22. The standing requirement has been satisfied.

      This court reviews evidentiary rulings under an abuse of discretion standard.

See Green v. Adm’rs of Tulane Educ. Fund., 284 F.3d 642, 660 (5th Cir. 2002).

                                            3
This is a demanding standard which is met only when no reasonable person could

take the trial court’s adopted view. See Whitehead v. Food Max of Miss., Inc., 332

F.3d 796, 803 (5th Cir. 2003). Even if there is a showing of abuse of discretion, the

abuse is only reversible is the error affected a substantial right of the complaining

party. See Green, 284 F.3d at 660.

      First, appellants object to the exclusion of the legislative history and pre-

clearance materials from a series of redistricting acts passed by the Louisiana

Legislature in the years before and after passage of Act 780. Appellants felt this

legislative history would provide evidence of the state’s racial preoccupation. The

district court excluded the evidence for failing to meet FED. R. EV. 401's relevancy

requirement.

      When determining whether a facially neutral law is racially discriminatory

law, the court ought to consider the legislative history of that law. See Vill. of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977). The

history of a legislative decision helps the court adduce legislative motivation. Id.

Historical background of the “specific sequence of events leading up [to] the

challenged decision” may also prove instructive. Id. at 267. Here, the district court

clearly considered both the legislative history of Act 780 as well as background


                                            4
materials demonstrating the state’s concern with race. The court need not consider

every facet of the historical background from which the legislation emerges. While

Act 1069 was a precursor to Act 780, no election was ever held under its

subdistricting plan. This makes the legislative history surrounding Act 1069

substantially less instructive than the legislative history of Act 780 itself. Similarly,

Acts 838, 839, and 844 of 1989 and Act 145 of 1994 did not deal directly with the

subdistricting of the 23rd Judicial District Court (“JDC”) but instead with various

other subdistricts within the state. It was not unreasonable for the court to conclude

that the legislative history of these acts would not shed light on the state’s intent to

create a majority black subdistrict in the 23rd JDC. The excluded legislative history

could only provide tenuous inferences as to the state’s reasoning process in Act 780,

whereas the history to Act 780 and the correspondence with the Department of

Justice over the construction of the 23rd JDC itself provided much more direct

evidence of the state’s intent in this instance. There was no abuse of discretion.

       Appellants also complain about the exclusion of evidence demonstrating the

adverse effects of racial subdistricting. This evidence includes testimony from

Representative Joseph Accardo, Judge Pitcher, and Judge Jones as well as the post

trial proffer of several news articles. The district court concluded that this evidence



                                            5
did not bear any relevance to any of the questions raised about the possible

violations of the Fourteenth Amendment, Fifteenth Amendment, or Section 2 of the

Voting Rights Act. Whether or not the practice of racial subdistricting is harmful

does not address whether or not there was a violation of an identified right or

statute. We find no abuse of discretion.



Race or traditional considerations in the state’s creation of the subdistrict



      In determining whether a legislature’s districting plan violates the Equal

Protection guarantee of the Fourteenth Amendment, the appellants carry a

demanding burden to show that the legislature’s motive was predominantly racial,

not political. See Easley v. Cromartie, 532 U.S. 234, 241 (2001). In creating a

majority-minority district, such as the one in question here, the plaintiffs “must

show at a minimum, that the ‘legislature subordinated traditional race-neutral

districting principles . . . to racial considerations.” Id. (quoting Miller v. Johnson,

515 U.S. 900, 928 (1995) (O’Connor, J. concurring)). Race is a permissible factor

so long as it is not “the ‘predominant factor’ motivating the legislature’s districting

decision.” Id. (internal citations omitted) (emphasis in the original). Traditional

districting concerns include such factors as one person-one vote, the protection of
                                            6
political incumbents, compactness, and reflection of communities of interest. See

Chen v. City of Houston, 206 F.3d 502, 512 (5th Cir. 2000).

      Legislatures, rather than courts, are institutionally better suited to make

districting decisions, so courts must “exercise extraordinary caution in adjudicating

claims that a State has drawn district lines on the basis of race.” See Easley, 532

U.S. at 242 (quoting Miller, 515 U.S. at 915 (emphasis added in Easley)). Courts

should be especially cautious when the legislature has proffered a legitimate

political explanation for the districting decision and the “voting population is one in

which race and political affiliation are highly correlated.” Id.

      Ascertaining legislative intent is a fact question. Prejean v. Foster, 227 F.3d

504, 509 (5th Cir. 2000). Therefore, this court will review the district court’s

findings for clear error. See Easley, 532 U.S. at 242. This is a deferential standard

under which “a reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left

with the definite and firm conviction that a mistake has been committed.’” Id.

(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

Where evidence can be viewed to support different findings, the choice between the

views of the evidence is not a clear error. See Theriot v. Parish of Jefferson, 185

F.3d 477, 490 (5th Cir. 1999).



                                            7
      We review the direct and indirect evidence of discrimination. Id. at 484. This

is necessary because



             [e]vidence that blacks constitute even a supermajority
             in one congressional district while amounting to less
             than a plurality in a neighboring district will not, by
             itself, suffice to prove that a jurisdiction was motivated
             by race in drawing its district lines when the evidence
             also shows a high correlation between race and party
             preference.


Hunt v. Cromartie, 526 U.S. 541, 551-52 (1999). The plaintiffs submitted history

surrounding a prior settlement, the Section 5 preclearance submissions, racial

statistics that were submitted to the Department of Justice, and expert testimony

about the subversion of traditional districting principles. To counter this evidence,

the Defendants provided evidence from: Judge Alvin Turner who drew the

subdistricts; then Representative Joseph Accardo who supported Act 780 in the

legislature; and from Dr. Richard Engstrom, an expert in political redistricting.

The district court concluded that the construction of the 23rd JDC employed

traditional redistricting criteria, that race was not a predominant factor, and thus,

strict scrutiny was not triggered.

      After reviewing the record, this court is satisfied that the Louisiana


                                            8
Legislature’s motivation in redistricting was not driven by race. The testimony of

Judge Alvin Taylor, who drafted the subdistricting plan, strongly suggests that he

was motivated by traditional districting concerns. While race may have been a

relevant factor, the trial court did not clearly err in its conclusion that Judge Turner

was most concerned with drawing the sub-district to include precincts that

supported him and to reflect the concerns of incumbent judges. Appellants suggest

that incumbency protection evolved into an issue of race because incumbent white

judges were able to maintain their judgeships in the majority white district. This

court sees no evidence suggesting Alvin Taylor drew the districts with the

motivation of protecting white judges per se. Rather, it so happened that all of the

incumbent judges were white and Taylor redrew the lines to protect them.

Protecting incumbent judges is a traditional and legitimate districting concern. Chen,

206 F.3d at 512. Turner’s testimony was bolstered by Representative Accardo who

was the lead representative supporting Act 780. He testified that he supported Act

780 for political reasons and that while race was a concern, it was not the

predominant factor. Both Accardo and Turner provided an alternate, credible

explanation for the subdivision of parishes and the lines drawn through Lutcher,

Donaldsonville, and Gonzales– Turner wanted to protect incumbents while

capturing areas that had provided strong support for him in the past. It is not for this
                                            9
court to second-guess the trial court’s assessment of these witnesses’ credibility.

The defendants’ expert witness, Dr. Engstrom, also provided ample support for this

explanation. After looking at the subdistricts created by Act 780, Engstrom

concluded that while race and support for Turner were clearly intermingled,

Turner’s map was consistent with and showed concern for traditional districting

concerns. Both Accardo and Engstrom also countered the argument that the racial

data compiled and submitted to the DOJ in support of Section 5 preclearance

demonstrated that race was the motivating factor in the legislature’s districting

decisions.

       While the legislative history behind Act 780 and the racial statistics

accompanying Louisiana’s Section 5 preclearance materials do provide some

evidence of race as a serious concern in the redistricting process, they are not so

persuasive as to overcome the strongly deferential review due both the legislature

and the trial court. Therefore, we uphold the trial court’s determination that race

was not a predominant factor in the creation of a black majority subdistrict under

Act 780. We need not decide whether the redistricting plan was in pursuit of a

compelling state interest and whether it was tailored to achieve that compelling

interest.



                                           10
Fifteenth Amendment and Section 2 of the Voting Rights Act



      When race is the predominant factor in motivating the way in which the

subdistricts were drawn, there may be a denial of the right to vote under the

Fifteenth Amendment. See Prejean, 227 F.3d at 518-19. Gomillion v. Lightfoot held

that if redistricting was used as a device to disenfranchise Negro citizens from

voting in a municipal election while leaving all white voters in the same district, it

would show that the act in question “was not an ordinary geographic redistricting

measure even within familiar abuses of gerrymandering.” 364 U.S. 339, 341 (1960).

Yet no such disenfranchisement is present here, as we agree with the district court’s

assessment that the boundaries were drawn with traditional political concerns rather

than race predominating.

      Similarly, we also agree with District Court’s assessment that there was no

violation of Section 2 of the Voting Rights Act. Section 2 of the Voting Rights Act

states that “[n]o voting qualification or prerequisite to voting or standard, practice or

procedure shall be imposed or applied by any State of political subdivision in a

manner which results in denial or abridgment of the right of any citizen of the United

States to vote on account of race or color . . . .” 42 U.S.C. § 1973(a) (2001). Yet

there is no evidence of vote dilution here. Since political decisions guided the
                                           11
districting process, there is no reason to believe the voting strength of any particular

racial group has been diluted.



AFFIRMED.




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