Opinion
Civil Action No. 3:02-CV-0858-R
October 17, 2003
In this action under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § I973c, defendant Dallas Independent School District ("DISD") moves to dismiss plaintiffs' first amended complaint ("amended complaint") under Fed.R.Civ.P. 12(b)(6), contending that it obtained administrative preclearance of the two requirements of its Board of Trustees (`Board') redistricting plan that remain in dispute. Because we are unable to say beyond doubt that DISD unambiguously obtained preclearance, we deny the motion. To the extent DISD moves under Rule 12(b)(1) to dismiss plaintiffs' § 2 cause of action and elements of the relief they seek under § 5, we deny this aspect of the motion as moot.
I A
Following the 2000 decennial United States Census, the DISD Board, like many political subdivisions throughout the country, adopted a restricting plan (the "Phase I Plan") to account for population changes within the districts of its elected Trustees and to conform to the requirements of one-person one-vote. The Phase I Plan thus altered the boundaries of the nine single-member districts from which Trustees are elected. The Board adopted the Phase I Plan after giving extensive consideration to whether two or three predominantly Hispanic districts should be created, ultimately opting to create two (the Phase I Plan retained, as in the plan adopted following the 1990 census, three predominantly African-American districts). Of particular relevance to the issues we address today, the Board included as components of the Phase I Plan the requirements that each majority Hispanic district contain a majority Hispanic citizen voting age population ("majority Hispanic citizen voting age requirement") and that all districts be drawn using whole voting precincts rather than U.S. Census tracts, block groups, or blocks ("whole voting precinct requirement"). Tex. Educ. Code Ann. § 11.052(f) (Vernon Supp. 2003) requires school districts with 150,000 or more students in average daily attendance to use whole voting precincts.
The prior plan, adopted in 1991, also had two predominantly Hispanic voting age majority districts.
DISD maintains that it never formally adopted the majority Hispanic citizen voting age requirement. See D. Br. at 8 n. 3. As we explain infra at § III(E)(2), we assume for purposes of our decision that the final plan contains this requirement.
The Board sought preclearance of the Phase I Plan and scheduled the election of Trustees for May 4, 2002. Before the election could be conducted, however, a Texas state district court held that the Board had adopted the plan in violation of the Texas Open Meetings Act, Tex. Gov't Code Ann. §§ 551.001-.146 (Vernon 2003). DISD withdrew its request for preclearance in December 2001. The state district court later ordered that the election take place on July 27, 2002, subject to obtaining required Voting Rights Act preclearance.
In March 2002, after conducting additional proceedings, the Board adopted a Phase II Plan that is essentially the same as the Phase I Plan. On April 5, 2002 it submitted the Phase II Plan to the Attorney General of the United States ("Attorney General") for administrative preclearance.
On April 25, 2002 plaintiffs Luz A. Villegas and Roberto Vela, suing as Hispanic and Spanish language minority voters, filed the instant action under § 5 of the Act against defendant DISD seeking to enjoin the July 27, 2002 election. They alleged that DISD had violated § 5 by canceling the May 4, 2002 election, adopting the July 27, 2002 election date, and enacting and administering revised candidate filing and early voting periods without preclearance. Plaintiffs also asserted that DISD had violated § 5 by enacting and administering, without obtaining preclearance, the Phase II Plan. They argued that DISD had failed to obtain preclearance for (1) the majority Hispanic citizen voting age requirement, (2) a method for determining Hispanic citizen voting age population based on 1990 United States Census data, and (3) the whole voting precinct requirement. Plaintiffs also challenged the July 27, 2002 election date, contending the election should be held on November 5, 2002, a regularly scheduled general election date prescribed by state law. They asserted that a November election would more likely increase Hispanic voter turnout and that the July election date would hinder full compliance with Spanish language minority voter group assistance requirements of federal law.
Plaintiffs also sued Bruce Sherbet ("Sherbet"), the Dallas County Elections Administrator. They voluntarily dismissed their action against him without prejudice on August 7, 2003. Because the action against Sherbet has been dismissed, we need not consider the part of DISD's motion that is addressed to claims against him. See D. Br. at 5-6.
The Chief Judge of the Circuit designated us as members of this three-judge district court on May 7, 2002. On May 9, 2002 the Attorney General precleared the Phase II Plan and the July 27, 2002 election date. Plaintiffs did not press their request that the election be enjoined, and it took place as scheduled.
B
Before the election was held, plaintiffs filed on July 1, 2002 the amended complaint that is the subject of DISD's present motion to dismiss. Plaintiffs reassert some of the § 5 claims set out in their complaint, add a new § 5 cause of action, and add a § 2 claim. As in their complaint, they aver that DISD violated § 5 by canceling the May 4, 2002 election without obtaining preclearance. Plaintiffs assert additional violations based on DISD's enacting and administering criteria for the selection and adoption of a redistricting plan that includes the majority Hispanic citizen voting age requirement and the whole voting precinct requirement. They also challenge DISD's method for determining, based on 1990 United States Census data, whether a majority Hispanic district contains a citizen voting age population that is majority Hispanic. Plaintiffs also assert a new § 5 claim, alleging that after the Attorney General precleared the Phase II Plan, the Dallas County Elections Department ("Elections Department") administered and implemented a different single-member district plan from the one that DISD submitted for preclearance, including posting the wrong plan and related information on its website.
Of the claims plaintiffs assert in their amended complaint, however, the only ones at issue relate to the whole voting precinct and majority Hispanic citizen voting age requirements. At oral argument, their counsel conceded that plaintiffs no longer request relief concerning the timing of the election or the Elections Department's posting the wrong plan on its website. Additionally, in neither their response to DISD's motion to dismiss nor at oral argument did plaintiffs press their contention that DISD failed to obtain preclearance to use 1990 United States Census data to determine whether a majority Hispanic district contained a citizen voting age population that is majority Hispanic. Plaintiffs' counsel also acknowledged at oral argument that of the remedies requested in their amended complaint, the only relief they now seek is an injunction precluding DISD from using the Phase II Plan until it obtains preclearance of the changes at issue and directing DISD to obtain preclearance within a specified time.
Plaintiffs seek the following § 5-based relief in their amended complaint: (1) preliminary and permanent injunctions requiring DISD to hold Trustee elections for all nine single-member districts on November 5, 2002; (2) preliminary and permanent injunctions voiding DISD's actions adopting the Phase II Plan and administering the pre-election plan for the July 27, 2002 election using the Phase II Plan or any unprecleared plan, and enjoining DISD from enacting and implementing election dates and single-member district plans until DISD first obtains preclearance under § 5 for the election schedule, plans, and criteria used in choosing these schedules and plans; (3) an injunction requiring DISD to adopt and implement a redistricting plan and election schedule in compliance with § 5; (4) a declaratory judgment that the administration of DISD's enacted changes to the criteria for single-member district plans, the single-member district plan enacted, and cancellation of the May 4, 2002 election date, and the related filing and early voting deadlines and administration of these changes without required preclearance violates § 5; and (5) attorney's fees, costs, and any other appropriate relief.
Plaintiffs argue that only if DISD does not obtain preclearance would this court need to consider what additional remedies are necessary.
DISD moves to dismiss the amended complaint under Rules 12(b)(1) and 12(b)(6).
II
DISD's Rule 12(b)(1) motion is limited to the contention that, as a three-judge court, we lack jurisdiction to hear plaintiffs' § 2 claim and to grant elements of the § 5-based relief that plaintiffs seek. See D. Mot. Dis. at ¶¶ 1-2; D. Br. at 3-5. We deny DISD's Rule 12(b)(1) motion as moot.
Plaintiffs acknowledge that their § 2 cause of action is a single-judge matter. They request that one judge hear the § 2 claim as part of this lawsuit or that the § 2 cause of action be severed from the § 5 claims. DISD asks that the § 2 claim be dismissed without prejudice to refiling in a proper tribunal. Neither side opposes our allowing the § 2 claim to be litigated before a single judge. We think the most efficient course is to leave the claim pending before Judge Buchmeyer, to be addressed separately from the § 5 issues that remain.
Issues pertaining to recovery of attorney's fees related to plaintiffs' § 5 claims would, however, also be a single-judge matter. See, e.g., Foreman v. Dallas County, Tex., 990 F. Supp. 505, 515n. 16 (N.D. Tex. 1998) (three-judge court).
Concerning DISD's contention that we lack jurisdiction to grant parts of the § 5-based relief that plaintiffs seek, we note that plaintiffs no longer request the remedies at issue. As noted, at oral argument their counsel confirmed that the only relief they request is an injunction precluding DISD from using the Phase II Plan until it obtains preclearance of the changes at issue and directing DISD to obtain preclearance within a specified time.
Accordingly, DISD's Rule 12(b)(1) motion is denied.
III
We now turn to DISD's Rule 12(b)(6) motion. DISD contends that the Phase II Plan's whole voting precinct requirement was precleared. It maintains that it never formally adopted a majority Hispanic citizen voting age requirement, and it posits that any such requirement was precleared as part of the plan.
A
"`[T]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'" Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quoting 5 A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 598 (1969)). "[D]ismissal of a claim on the basis of barebones pleadings is a `precarious disposition with a high mortality rate.'" Id. (quoting Barber v. Motor Vessel "Blue Cat," 372 F.2d 626, 627 (5th Cir. 1967)). "The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true." Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (citing Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986)). "The district court may not dismiss a complaint under rule 12(b)(6) `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); citing Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995)). "In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts, not mere conclusory allegations. We will thus not accept as true conclusory allegations or unwarranted deductions of fact." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (internal quotation marks omitted) (quoting Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994) (internal citations, quotation marks, and ellipses omitted)). "This strict standard of review under rule 12(b)(6) has been summarized as follows: `The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.'" Lowrey, 117 F.3d at 247 (quoting 5 Wright Miller, supra § 1357, at 601).
"In deciding a motion to dismiss the court may consider documents attached to or incorporated in the complaint and matters of which judicial notice may be taken." United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003) (citing Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996)). "[D]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to her claim." Collins, 224 F.3d at 498-99 (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). "In so attaching, the defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the elementary determination of whether a claim has been stated." Id. at 499. Without opposition from plaintiffs, DISD obtained leave to supplement the appendix to its motion to dismiss to include a copy of the Phase II Plan, which is a principal subject of the amended complaint. The Phase II Plan incorporates by reference the Phase I Plan. See, e.g., D. App. 32. Following oral argument, we requested that DISD submit a copy of the Phase I Plan. We may therefore consider the contents of both documents in deciding DISD's motion.
Citations to "App." are to the appendix to DISD's motion to dismiss, filed July 24, 2002, and to the supplement to the appendix to DISD's motion to dismiss, filed August 20, 2003.
B
"In order to prevent changes that have a discriminatory purpose or effect, § 5 [of the Voting Rights Act] requires covered jurisdictions . . . to obtain preclearance by one of two methods before implementing new voting practices." Clark v. Roemer, 500 U.S. 646, 648 (1991). "A jurisdiction subject to § 5's requirements must obtain either judicial or administrative preclearance before implementing a voting change. No new voting practice is enforceable unless the covered jurisdiction has succeeded in obtaining preclearance." Lopez v. Monterey County, Cal., 519 U.S. 9, 20 (1996). "A private party may sue in a local district court, composed of three judges, `for declaratory judgment and injunctive relief, claiming that a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny.'" Foreman v. Dallas County, Tex., 990 F. Supp. 505, 512 (N.D. Tex. 1998) (three-judge court) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 561 (1969)). "[A]fter proving that the State has failed to submit the covered enactment for § 5 approval, the private party has standing to obtain an injunction against further enforcement, pending the State's submission of the legislation pursuant to § 5." Id. (internal quotation marks omitted) (quoting Allen, 393 U.S. at 555). "A three-judge court is authorized only to `determine (i) whether a change was covered by § 5, (ii) if the change was covered, whether § 5's approval requirements were satisfied, and (iii) if the requirements were not satisfied, what remedy was appropriate.'" Id. at 513 (quoting City of Lockhart v. United States, 460 U.S. 125, 129 n. 3 (1983)). "If the necessary approval was not obtained, the court decides' what temporary remedy, if any, is appropriate.'" Id. (quoting Lopez, 519 U.S. at 23). "Once a covered jurisdiction has complied with these preclearance requirements, § 5 provides no further remedy." Id. at 513 n. 14 (quoting Lopez, 519 U.S. at 23).
"Under normal circumstances, a submission pertains only to identified changes in that legislation." Clark, 500 U.S. at 659 (citing McCain v. Lybrand, 465 U.S. 236, 251, 257 (1984)). "The change affecting voting must be presented to the Attorney General `in some unambiguous and recordable manner.'" United States v. Louisiana, 952 F. Supp. 1151, 1169 (W.D. La.) (three-judge court) (quoting Allen, 393 U.S. at 571), aff'd mem., 521 U.S. 1101 (1997). "[T]he preclearance procedures mandated by § 5 of the Voting Rights Act focus entirely on changes in election practices." McCain, 465 U.S. at 251. There is a "presumption that `any ambiguity in the scope of a preclearance request' must be resolved against the submitting authority." Clark, 500 U.S. at 659 (quoting McCain, 465 U.S. at 257). "The Supreme Court, lower federal courts, and the applicable regulations uniformly require submitting jurisdictions to identify with specificity the changes sought to be precleared." United States v. Louisiana, 952 F. Supp. at 1169. Section 5 does not permit preclearance by implication. See id. at 1169-70.
C
Before we address the two requirements at issue, we will consider DISD's contention that because the Phase II Plan was itself precleared, it was unnecessary to obtain separate preclearance of preliminary decisions and considerations that led to its final adoption. DISD reasons that plaintiffs are positing as voting "standards" what "are merely preliminary decisions or considerations that led to the final redistricting plan." D. Br. at 7. It maintains that "[t]he only impact either had on voting was the way they affected the contours of the ultimate redistricting plan." Id. DISD asserts that the Attorney General by regulation examines the final plan and not every preliminary decision that the political subdivision makes in reaching its ultimate decision. It acknowledges that it was obligated to obtain preclearance of its decision to use whole voting precincts, but it argues that it secured the required approval when the Attorney General precleared the entire plan.DISD assumes that plaintiffs are contending for a piecemeal clearance process in which "plaintiff would cut the process up into various components and require each to be precleared separately[,]" and a political subdivision like DISD would be required to "stop and seek approval before proceeding to the next step in the redistricting process[.]" D. Br. at 7, 8. It urges that such a regimen is inconsistent with Department of Justice regulations that preclude the submission of tentative changes, and that it is impractical because it would require that political subdivisions incur delay while they seek preclearance at each successive step. DISD also asserts that plaintiffs are relying only on two preliminary decisions that they contend require separate preclearance, without explaining a principled basis for selecting these two decisions from scores of others that are part of the adopted plan. It suggests that plaintiffs lack a reasoned basis or test for determining which of the multiple criteria require separate preclearance.
We think DISD misunderstands plaintiffs' argument and the requirements of the Voting Rights Act. Plaintiffs are not contending for, and the Act does not require, component-by-component seriatim preclearance of inchoate changes. Plaintiffs instead argue that any change that is incorporated in a final plan must be unambiguously identified as a change when preclearance of the adopted plan is sought. Under the Act, the basis for determining when preclearance is necessary is straightforward. It essentially requires that a covered jurisdiction answer two questions: First, is the matter in question a voting qualification, prerequisite to voting, or standard, practice, or procedure with respect to voting? Second, is the qualification, prerequisite, standard, practice, or procedure different from the one in force on the date § 5 coverage took effect or (if applicable) different from the one that earlier received preclearance? If the answer to both questions is "yes," preclearance is required.
Section 5 of the Voting Rights Act refers to voting qualifications, prerequisites to voting, or standards, practices, or procedures with respect to voting. See 42 U.S.C. § 1973c; Lopez, 519U.S. at 19 ("Section 5 of the Voting Rights Act applies whenever a covered jurisdiction `enact[s] or seek[s] to administer any . . . standard, practice, or procedure' different from that in force on the date of § 5 coverage.").
See, e.g., Presley v. Etowah County Comm'n, 502 U.S. 491, 495 (1992) ("To determine whether there have been changes with respect to voting, we must compare the challenged practices with those in existence before they were adopted.").
The debate over whether an action is merely a preliminary decision or consideration is at bottom a dispute about whether it is one that has effected, altered, or eliminated a voting qualification, prerequisite to voting, or standard, practice, or procedure with respect to voting. The law is clear that § 5 "reaches informal as well as formal changes[.]" NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 178 (1985) (citing Allen, 393 U.S. 544). The Act "reach[es] any enactment that affects voting `in even a minor way.'" United States v. Louisiana, 952 F. Supp. at 1165 (quoting Allen, 393 U.S. at 567). Plaintiffs allege to be requirements what DISD says are merely preliminary decisions or considerations. DISD emphasizes that its choices to use whole voting precincts and to give careful attention to citizenship levels are wrapped up in the final plan, and that the effect, if any, of either factor can only be determined by examining the plan as a whole. It posits that the change in the election standard that requires § 5 review is the adoption of the plan, not the preliminary decisions that led to the plan. By acknowledging, however, that use of whole voting precincts requires preclearance, DISD concedes that this choice falls within the scope of § 5. See D. Br. at 7 ("The school district does not dispute that the decision to use whole election precincts is required to be precleared."). And as we explain below, we assume for Rule 12(b)(6) purposes that the plan in fact contains the alleged majority Hispanic citizen voting age requirement. We have no difficulty concluding that such a requirement — which concerns the racial makeup of the voters within a Trustee district — is subject to § 5 coverage. Accordingly, preclearance of the Phase II Plan did not of itself result in preclearance of the two requirements at issue.
D
We now consider whether DISD has established beyond doubt that it obtained preclearance of the whole voting precinct requirement.
1
At oral argument, DISD's counsel emphasized that in its Phase II submission, DISD explicitly describes the use of whole voting precincts. In accordance with 28 C.F.R. § 51.27(m) (2003), which requires that a § 5 submission include "[a] statement of the reasons for the change[,]" DISD states:
At the outset, we note that all previously submitted plans required updating to conform to the geography of the Dallas County's new election precincts, since the county had redrawn its election precincts at the end of 2001 as required by state law. Texas law requires that Dallas ISD trustee districts be composed of whole county election precincts, that is, no trustee district may split a county election precinct. Thus, all maps that would be reconsidered during Phase II needed to have their trustee district lines adjusted — usually only slightly — to update those boundary lines to conform to Dallas County's new 2002 election precincts. The county's 2002 election precincts consolidated some of the previous (2001) election precincts and changed others, so the updating of the DISD plans slightly changes the boundaries and the demographic data for some of the districts in each plan. All reconsidered plans described below required these "election precinct update" adjustments.
D. App. 37 (emphasis added). Plaintiffs stress that despite this disclosure, DISD does not identify the use of whole voting precincts as a change. We agree. We think the most reasonable way to read this passage is that DISD is apprising the Attorney General of a change between the Phase I and Phase II Plans that was made necessary because Dallas County had altered county precinct lines during the interim. Even if the passage can be read more favorably to DISD's position, it does not disclose in an unambiguous and recordable manner a change between the Phase II Plan and the benchmark plan that was precleared following the 1990 census.
We have also reviewed the Phase I submission, which the Phase II Plan incorporates. We cannot say that it unambiguously alerts the Attorney General that the use of whole precincts is a change. Instead, it states that it was necessary that district lines be redrawn "to correct a population imbalance among the various districts as reflected by an analysis of . . . data from the 2000 Census." Phase I Submission Ltr. at 2. The Phase I submission letter also refers to the state statute that requires whole voting precincts. 28 C.F.R. § 51.27(h) (2003) directs that a covered jurisdiction identify the statutory authority under which it has undertaken the change and describe the procedures it is required to follow in doing so. The letter states that "Tex. Educ. Code Ann. §§ 11.052(d) prohibits school districts the size of DISD from drawing districts whose boundaries split county election precinct boundaries." Phase I Submission Ltr. at 5. We cannot say that, by this disclosure, DISD unambiguously identifies the whole voting precinct scheme as a change from the benchmark plan. It can instead be read merely as a disclosure of one of the authorities followed in adopting the redrawn Trustee districts that are identified as changes.
DISD points us to Exhibit H to the Phase I Plan, which is a copy of a resolution that adopted certain criteria for redrawing the districts, including the use of whole precincts. See D. App. 26. Assuming the Attorney General could reasonably have been expected to review this exhibit, see United States v. Louisiana, 952 F. Supp. at 1171 (holding that Attorney General is not charged with sifting through jurisdiction's voluminous submission), the resolution does not state in an unambiguous and recordable manner that use of whole voting precincts is a change. It states that DISD, "in its adoption of a redistricting plan for trustee districts, will adhere to the following criteria: . . . To the extent possible, districts should be composed of whole voting precincts as they currently exist." D. App. 26.
We also note that DISD submitted 1991 and 2001 maps as part of the Phase I Plan, but there is nothing in them that indicates whether whole precincts are used. See Phase I Plan Exs. C and D. The Phase II Plan does contain a map of the Trustee districts that includes this statement: "This plan conforms to Dallas County 2002 Election Precincts." D. App. Ex. 50. The map also implicitly depicts the use of whole voting precincts. These indications that the plan conforms to whole voting precincts do not present the change to the Attorney General in an unambiguous and recordable manner.
DISD contends the Attorney General considered the use of whole voting precincts because this criterion is one of nine formally adopted within the final plan. We disagree. "A request for preclearance of certain identified changes in election practices which fails to identify other practices as new ones thus cannot be considered an adequate submission of the latter practices." McCain, 465 U.S. at 256-57. Any ambiguity in whether the submission identifies the changes in question must be resolved against the submitting authority. See Clark, 500 U.S. at 656. DISD was required to "identify with specificity each change that it wishes the Attorney General to consider." Id. at 658. Department of Justice regulations make it clear that
[i]f the change affecting voting either is not readily apparent on the face of the documents. . . . or is not embodied in a document, [the covered jurisdiction must provide] a clear statement of the change explaining the difference between the submitted change and the prior law or practice, or explanatory materials adequate to disclose to the Attorney General the difference between the prior and proposed situation with respect to voting.28 C.F.R. § 51.27(c) (2003). "The State must clearly identify the changes it is submitting for preclearance by the Attorney General. This requirement helps ease the burden on the Attorney General, who each year must carefully review thousands of electoral changes." Ward v. Alabama, 31 F. Supp.2d 968, 971 (M.D. Ala. 1998) (three-judge court) (citing Clark, 500 U.S. at 658-59). The Attorney General may have been able to determine that the new Trustee districts were drawn to conform to 2002 Dallas County voting precincts and that use of whole voting precincts was a criterion for promulgating the Phase II Plan, but it is not clear that he would have been able to conclude that this was a change from the benchmark redistricting plan adopted in 1991.
2
DISD also contends that because the use of whole voting precincts is mandated by Tex. Educ. Code Ann. § 11.052(f) (Vernon Supp. 2003), which was itself precleared in 1987, the requirement for preclearance was satisfied. We reject this argument as contrary to clearly established Supreme Court precedent. See, e.g., Lopez, 519 U.S. at 15 (holding that preclearance of state statute did not result in preclearance of local ordinance based on statute).We therefore hold that DISD has failed to establish beyond doubt that plaintiffs' § 5 claim based on lack of preclearance of the whole voting precinct requirement fails to state a claim on which relief can be granted.
E
We next determine whether DISD is entitled to dismissal of plaintiffs' claim that DISD failed to obtain preclearance of the majority Hispanic citizen voting age requirement.
1
Although DISD's brief is not entirely clear in this respect, it appears to advance a two-pronged challenge to this claim. In a footnote, it asserts that it never formally adopted a requirement or mandate that a majority Hispanic district contain a majority Hispanic citizen voting age population. See D. Br. at 8 n. 3. In the body of its brief, it contends that plaintiffs are incorrectly arguing that preclearance is required for what are "merely preliminary decisions or considerations that led to the final redistricting plan." D. Br. at 7. DISD maintains that "[e]verything the plaintiffs urge was required to be precleared was, in fact, precleared[,]" which occurred when the final Plan was submitted to the Attorney General. Id. at 9. In other words, DISD apparently posits that the alleged majority Hispanic citizen voting age requirement is not a component of the plan, but, assuming it is a plan requirement, DISD obtained any necessary preclearance. We will address these arguments in turn.
2
As noted, see supra § III(A), we must accept as true all non-conclusory facts specifically pleaded in plaintiffs' amended complaint. Plaintiffs allege that the DISD plan includes a "requirement that a majority Hispanic district also contain a citizen voting age population that is majority Hispanic," and that this is a standard[ ], practice[ ], and procedure[ ] with respect to voting that [is] different from the standards, practices, and procedures in effect on November 1, 1972 and that is different from the last election and schedule precleared under Section 5." Am. Compl. ¶ 8; see id. at ¶ 12 (referring to "DISD's majority Hispanic single member districts requirement"). They also aver that "DISD has not submitted its requirement that majority Hispanic single member districts must also contain a citizen voting age population that is also majority Hispanic for Section 5 pre-clearance." Id. at ¶ 10. We therefore assume for purposes of deciding DISD's Rule 12(b)(6) motion that there is such a requirement in the plan. Having also considered the contents of DISD's Phase I and II submissions, as we are permitted to do, see supra at § III(A), we conclude that these documents fail to show indubitably that the majority Hispanic citizen voting age requirement is not a plan component.
We therefore deny DISD's motion to the extent it is based on the contention that the Phase II Plan does not include the majority Hispanic citizen voting age requirement.
3
DISD also argues that the majority Hispanic citizen voting age requirement was precleared as part of the final plan.We note that in response to its obligation under § 51.27(c) — i.e., if the change affecting voting is not readily apparent on the face of the other required documents or is not embodied in a document, then clearly explain the difference between the prior and proposed situation — DISD sets out in the Plan II submission four charts that show the differences between the total population and the voting age population of the current and proposed districts. See D. App. 33-34. The charts are explicitly labeled in terms of Hispanic total population and voting age population, and four categories of non-Hispanic total population and voting age population. It is clear that the two majority Hispanic single-member districts — Districts 7 and 8 — contain a citizen voting age population that is majority Hispanic. DISD also cites exhibits that contain a map showing the new districts and detailed demographic information. See id. at 32 (citing exhibits B, C, and D). What the materials fail to show in an unambiguous and recordable manner, however, is that the requirement of majority Hispanic citizen voting age is a change. The Attorney General could assume that although the districts changed, the requirement that the districts contain a citizen voting age population that is majority Hispanic was also a component of the precleared benchmark plan.
DISD's "statement of the reasons for the change," required under § 51.27(m), and its "statement of the anticipated effect of the change on members of racial or language minority groups," required under § 51.27(n), contain an extensive discussion of the fact that the Phase II Plan was adopted after considering citizen voting age population that is majority Hispanic. See D. App. 3 8-40. It is apparent that DISD deemed such a requirement essential for compliance with § 2 of the Voting Rights Act and decisions of the Fifth Circuit that mandate that citizen voting age population, not total population, be used under the first prong of Thornburg v. Gingles, 478 U.S. 30 (1986). See id. at 38. In addressing the requirement of § 51.27(n) in particular, and explaining some of the difficulties it faced in creating a third majority Hispanic district, DISD stated:
The basic problem was that in 1990 the census revealed that about 45.0% of the school district's adult Hispanics were non-citizens and thus ineligible to vote. Applying block-group-specific 1990 citizenship data to the 2000 population, the school district was able to devise a plan that contained three Hispanic citizen-voting-age population majority districts. On the basis of the city-wide citizenship data for the City of Dallas, the Board's redistricting consultants advised that the 2000 block-group-specific citizenship data, which was not yet available, was very likely to show even higher levels of non-citizenship in the school district's Hispanic population. To be sure it was not overlooking any demographic trend that would suggest higher citizenship rates for 2000, the Board retained three demographers — Dr. Peter Morrison, Dr. Bill Rives, and Dr. Jorge Chapa — to review the data and determine if it were possible that the proposed plans might have three Hispanic citizen voting age population districts. Working independently, each concluded that it was not. Their reports are attached as Exhibits "G," "H," and "I." After receiving that information, the Board voted to adopt the plan that is submitted today.Id. at 40. Although the submission explains what DISD did and why, it does not unambiguously identify as a change the requirement that a Hispanic district contain a citizen voting age population (as opposed to a total voting age population) that is majority Hispanic. This ambiguity must be resolved against DISD as the submitting authority. See Clark, 500 U.S. at 656.
We cannot conclude beyond doubt that DISD secured preclearance of the majority Hispanic citizen voting age requirement. Accordingly, we hold that it is not entitled to dismissal under Rule 12(b)(6) of this § 5 claim.
* * *
DISD's Rule 12(b)(1) motion is denied as moot, and its Rule 12(b)(6) motion is denied.SO ORDERED