immense as they are unfortunate. I do not believe, and the Court offers not a shred of evidence to suggest, that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed. Nor do I believe that the proportional representation towards which the Court's expansion of equal protection doctrine will lead is consistent with our history, our traditions, or our political institutions.
. . . . In cases such as this one, which may profoundly affect the governance of this Nation, it is not enough to cite precedent: we should examine it for possible limits, and if they are lacking, for possible flaws.
Davis, 478 U.S. at 145-46.
Whether Justice O'Connor's opinion regarding proportional representation in a political discrimination case applies with equal force in a racial discrimination case is not before the court today. Questions regarding the nature of a cognizable injury will arise, however, should the Hispanic plaintiffs someday bring a constitutional discrimination claim on their own behalf.
The issue before the court today--whether the Board intentionally discriminated against the group of African Americans, Hispanics, and Asian-Americans defined by the plaintiffs as "San Diego minority citizens"--can be decided on a motion for summary judgment. Because the plaintiffs have presented no evidence of discrimination against African-Americans and Asian-Americans, the plaintiffs' discrimination claim as brought by the plaintiffs on behalf of San Diego minority citizens as a group must fail. The defendants' motion for summary judgment on this ground is GRANTED.
VI. ONE PERSON-ONE VOTE CLAIM
The plaintiffs allege that the redistricting scheme violates the one person-one vote rule as defined in Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). As the defendants note, however, the Supreme Court has approved a state reapportionment resulting in a 9.9% population differential between the ideal district and a challenged district. See White v. Regester, 412 U.S. 755, 763, 37 L. Ed. 2d 314, 93 S. Ct. 2332 (1973). The defendants argue that "it is undisputed that the County's plan has a total population deviation from the ideal of 9.9% Defendants' Motion for Summary Judgment at 23, lines 13-14.
The plaintiffs have responded that data that might demonstrate a one person-one vote violation are not yet available. See Plaintiffs' Opposition to Defendants' Motion for Summary Judgment at 25. The plaintiffs also suggest that the court must defer ruling on this issue until all evidence relating to the "present reality," Gingles, 478 U.S. at 45, is available. See Plaintiffs' Opposition to Defendants' Motion for Summary Judgment at 25. The plaintiffs have cited no authority stating that a district court may not grant summary judgment solely because it is possible that evidence to support the claim someday might exist. There is no evidence before the court to indicate that the defendants have violated the one person-one vote rule. The defendants' motion for summary judgment on this ground is GRANTED.
Gingles does not require a district court to wait for evidence that someday might be presented to it before deciding a motion for summary judgment. As the Supreme Court noted in Lujan and Celotex, the court should grant summary judgment motion "so long as whatever is before the District Court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.'" Lujan, 110 S. Ct at 3187 (quoting Celotex, 477 U.S. at 323).
I do not fault the plaintiffs for bringing the instant case. Citizens should not be timorous in seeking to vindicate their rights, particularly rights as fundamental as the right to vote and particularly when, as in the case at bar, the law mostly is uncharted territory. Nonetheless, I am called upon to decide this case based on the law as I understand it and the evidence before me.
Based on the evidence before the court, I find an absence of evidence to support the existence of the second and third Gingles preconditions. Thus the defendants are entitled to summary judgment on the plaintiffs' § 2 claim. I find an absence of evidence to support a claim of intentional discrimination against all San Diego African-American, Hispanic, and Asian-American citizens as a group. Thus the defendants are entitled to summary judgment on the plaintiffs' constitutional claim. I find an absence of evidence to support the plaintiffs' one person-one vote claim, and the defendants are entitled to summary judgment on this claim. Because the defendants are not liable for any violation, I need not consider whether any particular remedy, such as increasing the size of the Board of Supervisors, is appropriate.
To the extent that they are able to avoid the preclusive effect of this Order, the plaintiffs later might be able to demonstrate a violation of their rights under § 2. This case has not reached the question whether the constitutional rights of plaintiff DeBaca and other San Diego County Hispanic citizens have been violated.
The defendants' motion for summary judgment is GRANTED. The plaintiffs' motion to enjoin the June 2, 1992 election is DENIED AS MOOT. The plaintiffs' motion for class certification is DENIED AS MOOT.
IT IS SO ORDERED.
JOHN S. RHOADES, SR.
UNITED STATES DISTRICT JUDGE