Houston Lawyers' Association v. Mattox Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    No. 90-

I n  T h e

Supreme Court of tt>e ©mteb states
O c t o b e r  T e r m , 1990

' Houston Lawyers’ Association, et al.,
Petitioners,

v.
J im Mattox, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

O f Counsel:
Matthews & Branscomb 
A Professional Corporation

J ulius LeVonne Chambers 
‘ Charles Stephen  Ralston 

Sherrilyn A. Ifill 
99 Hudson Street 
Sixteenth Floor 
New York, N.Y. 10013 
(212) 219-1900

Gabrielle K. McDonald 
301 Congress Avenue 
Suite 2050 
Austin, Texas 78701 
(512) 320-5055

Attorneys fo r  Petitioners

*  Counsel o f Record

PRESS OF BYRON S. ADAMS. WASHINGTON, D.C. (202) 347-8203



QUESTIONS PRESENTED

1. Should this Court grant certiorari to resolve a conflict 

between the circuits as to whether Section 2 of the Voting 

Rights Act, as amended, governs the election of judicial 

officers?

2. Does Section 2 apply to the election of all judicial 

officers, including trial judges?



11

PARTIES

The participants in the proceedings below were:

League of United Latin American Citizens (LULAC) 

Local Council 4434, LULAC Local Council 4451, LULAC 

(Statewide), Christina Moreno, Aquilla Watson, Joan Ervin, 

Matthew W. Plummer, Sr. Jom Conley, Volma Overton, 

Willard Pen Conat, Gene Collins, A1 Price, Theodore M. 

Hogrobrooks, Ernest M. Deckard, Judge Mary Ellen Hicks, 

Rev. James Thomas, Plaintiffs;

The Houston Lawyers’ Association, Weldon Berry, 

Alice Bonner, Rev. William Lawson, Bennie McGinty, 

Deloyd Parker, Francis Williams, Plaintiff-lntervenors;

Jesse Oliver, Fred Tinsley and Joan Winn White, 

Plaintiff-lntervenors;

Jim Mattox, in his capacity as Attorney General of the



I l l

State of Texas; George Bayoud, Secretary of State of Texas; 

Thomas R. Phillips, Mike McCormick, Ron Chapman, 

Thomas J. Stovall, James F. Clawson, John Comyn, Robert 

Blackmon, Sam B. Paxson, Weldon Kirk, Jeff Ealker, Ray 

D. Anderson, Joe Spurlock II, and Leonard E. Davis, in 

their capacity as members of the Texas Judicial Districts 

Board; Defendants;

Judge Sharolyn Wood and Judge Harold Entz,

Defendant-Intervenors.



TABLE OF CONTENTS

iv

QUESTIONS PRESENTED...............................................

PARTIES...........................................................................

TABLE OF AUTHORITIES ......................

OPINIONS BELOW ........................................................

JURISDICTION................................................................

STATUTE INVOLVED........... .. ....................................

STATEMENT OF THE C A SE .......................................

The Proceedings B e lo w .......................................

Statement of Facts ...............................................

REASONS FOR GRANTING THE W R IT ....................

I. THE FIFTH CIRCUIT’S PER SE RULE 
T HAT  A T - L A R G E  J U D I C I A L  
E L E C T I O N S  C A N N O T  BE  
CHALLENGED UNDER SECTION 2 OF 
THE VOTING RIGHTS ACT SQUARELY 
CONFLICTS WITH THE ONLY OTHER 
COURT OF APPEALS TO DECIDE THIS 
IS S U E ........................................................

A. The Question Whether Section 2 
Governs the Election of Judges Is

i

ii

vi

2

2

3

4

4

9

14

14



V

One of National Importance . . . .  15

B. The Fifth Circuit’s Decision in 
LULAC Squarely Conflicts with the 
View of the Only Other Circuit to 
Decide the Issue of Section 2’s 
Applicability to the Election of 
Judges ..........................................  20

II. THIS COURT SHOULD REVIEW LULAC 
IN ORDER TO RESOLVE COMPLETELY 
THE QUESTION OF SECTION 2’S 
APPLICABILITY TO THE ELECTION OF 
JUDGES ..................................................  22

CONCLUSION................................................................  28



TABLE OF AUTHORITIES

Cases: Pages:

Alexander v. Martin, No. 86-1048-CIV-5 (E.D.N.C.) 16

Brooks v. State Bd. of Elections, 59 U.S.L.W. 3293 
(October 15, 1990) ................................................ 15, 17

Brooks v. State Bd. of Elections, Civ. No. 288-146 
(S.D.Ga. 1989)............................................ ...................  15

Chisom v. Roemer, 839 F.2d 1056 (5th Cir. 1988), cert, 
denied, 488 U.S. , 102 L.Ed.2d 379 (1988) . . . passim

Clark v. Edwards, 725 F.Supp. 285 (M.D. La. 1988) 15

Haith v. Martin, 618 F.Supp. 410, 413 (E.D.N.C. 1985), 
aff’d, 477 U.S. 901 (1986)....................................  17, 26

Hunt v. Arkansas, No. PB-C—89-406 (E.D. Ark.
1989)............................................................. ..  15, 16, 27

LULAC v. Clements, 914 F.2d 620 (5th Cir. 1990)passim

Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988) 15, 17,
20, 21, 27

Martin v. Allain, 658 F.Supp. 1183 (S.D. Miss. 1987) 16 

Nipper v. Martinez, No. 90-447-Civ-J-16 (M.D. Fla.
1990).................................................................................  15

Reynolds v. Sims, 377 U.S. 533, 585 (1964)..............  26



Pages:
SCLC v. Siegelman, 714 F.Supp. 511 (M.D. Ala.

vii

1 9 8 9 ) ................................................................  15, 16, 26

Thornburg v. Gingles 478 U.S. 30 (1986)...................... 7

Williams v. State Bd. of Elections, 696 F.Supp. 1563 (N.D.
111. 1988) .......................................................................  15

Statutes:

Section 2 of the Voting Rights Act, as amended, 42 U.S.C. 
§ 1973 ......................................................................passim

Section 5 of the Voting Rights Act, as amended, 42 U.S.C. 
§ 1973c .....................................................................16-19

Texas Constitution of 1876, as amended, Art. 5 §7 (a)(i) 9 

Other Authorities:

House Report No. 97-227, 9th Cong., 1st Sess. (1982) 18 

Letter of Assistant Attorney General John Dunne to Mr.
Tom Harrison, Nov. 5, 1990 ..............................  19

Senate Report No. 97-417, 97th Cong., 2nd Sess.
(1982)........................................................................  7, 12



No. 90-

In The

Supreme Court of the United States
October Term , 1990

Houston Lawyers’ Association, et a l,
Petitioners,

v.

Jim Mattox, et al. ,
Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners Houston Lawyers’ Association, Weldon 

Berry, Alice Bonner, Rev. William Lawson, Bennie 

McGinty, Deloyd Parker, and Francis Williams respectfully 

pray that a writ of certiorari issue to review the judgement 

and opinion of the Court of Appeals for the Fifth Circuit 

entered in this proceeding September 28, 1990.



2

OPINIONS BELOW

The opinion of the Fifth Circuit is reported at 914 F.2d 

620 as LULAC v. Clements, and is set out at pp. la-182a of 

the appendix hereto ("App,"). The opinion of the United 

States District Court for the Western District of Texas is not 

reported at and is set out at pp. 183a~304a of the appendix, 

except for statistical tables that are an appendix to the 

district court’s opinion. Copies of those tables have been 

filed under separate cover with the Clerk of the Court.

In addition to the opinions in this case, a letter from 

Assistant Attorney General John Dunne, dated November 5, 

1990 interposing an objection to fifteen additional district 

judgeships in Texas is set out at pp. 304a-308a of the 

appendix hereto.

JURISDICTION

The decision of the Fifth Circuit was entered on



3

September 28, 1990. Jurisdiction of this Court is invoked 

under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

This case involves Section 2 of the Voting Rights Act, 

as amended, 42 U.S.C. § 1973, which provides in pertinent 

part:

(a) No voting qualification or prerequisite to voting or 
standard, practice or procedure shall be imposed or 
applied by a State or political subdivision in a manner 
which results in a denial or abridgment of the right of 
any citizen of the United States to vote on account of 
race or color . . .

(b) A violation of subsection (a) of this section is
established if, based upon the totality of circumstances, 
it is shown that the political processes leading to 
nomination or election in the political subdivision are 
not equally open to participation by members of a class 
of citizens protected by subsection (a) of this section in 
that its members have less opportunity to participate in 
the politeal process and elect representatives of their 
choice. The extent to which members of a protected 
class have been elected to office in the State or political 
subdivision in one circumstance which may be 
considered: Provided, That nothing in this section
establishes a right to have members of a protected class



4

elected in numbers equal to their proportion in the 
population.

STATEMENT OF THE CASE 

The Proceedings Below

This case was filed in the Western District of Texas on 

July 11, 19881 on behalf of Mexican American and African 

American voters challenging the at-large election of district

'In October 1988, the district court for the Western District of Texas 
stayed all proceedings in this case pending this Court’s decision on a writ 
of certiorari filed in Chisom v. Roemer. Docket No. 88-327. In that 
case, in which African American voters challenged the multi-member 
configuration of the First Supreme Court District in Louisiana, a panel 
of the Fifth Circuit held that judicial elections are covered by Section 2 
of the Voting Rights Act. 839 F.2d 1056 (5th Cir. 1988) This Court
denied certiorari on November 14, 1988. 488 U .S ._, 102 L.Ed.2d 379
(1988). After a trial on the merits, the district court in Chisom held that 
the plaintiffs had not established that the method of electing supreme 
court justices in Louisiana violated either the Voting Rights Act or the 
Constitution. The Chisom plaintiffs appealed their claim under the 
Voting Rights Act to the Fifth Circuit.

On November 2, 1990, the Fifth Circuit issued an order in Chisom, 
remanding the case to the district court for dismissal of the complaint in 
light of the court’s decision in LULAC. African American plaintiffs in 
Chisom filed a petition for a writ of certiorari to this Court on November 
14, 1990.



5

judges in 11 counties in Texas.2

On February 28, 1989, the district court granted the 

intervention of the Houston Lawyers’ Association (HLA) and 

five African American voters from Harris County, Texas 

(hereafter referred to as "petitioners"), as well as the 

intervention of four African American voters from Dallas 

County, Texas. The petitioners challenged the at-large, 

winner-take-all, majority vote, numbered post requirement 

for electing district judges, on the grounds that this winner- 

take-all method of electing judges denies African American 

voters an equal opportunity to elect candidates of their 

choice and to participate in the political process in violation 

of §2 of the Voting Rights Act of 1965, as amended. 

Petitioners also alleged that the winner-take-all at-large 

election requirement for district judges was adopted and

2Originally, plaintiffs challenged the at-large method of electing 
district judges in 44 counties in Texas. Plaintiffs later withdrew their 
claim against the electoral system in 33 counties.



6

maintained for the purpose of diluting African American 

voting strength in violation of §2 and the Fourteenth and 

Fifteenth Amendments to the Constitution.3 The petitioners 

showed that under a single-member district electoral scheme, 

or a modified at-large electoral system which removed the 

winner-take-all feature of the current electoral scheme, 

African American voters would be able to elect their 

preferred candidates as district judges. See, Complaint in 

Intervention of Houston Lawyers’ Association, et. al, at 

paragraph 42.

A trial on the merits in LULAC was held in September 

1989. The district court found that the current method of 

electing district judges in every county challenged in the 

lawsuit, violates §2 of the Voting Rights Act in that it denies 

Mexican American and African American voters an equal 

opportunity to elect their candidates of choice to the district

3Plaintiffs did not appeal the district court’s rejection of their claim 
of intentional discrimination.



7

court bench. The district court made specific findings 

following the guidelines set out by this Court in Thornburg 

v. Gingles 478 U.S. 30 (1986), for analyzing a claim of 

racial vote dilution under the §2 "results" test. The district 

court also found that the "typical factors" enumerated in the 

Senate Report4 accompanying the 1982 amendments to the 

Voting Rights Act, which tend to demonstrate that an 

electoral scheme dilutes the voting strength of minority 

voters, pointed overwhelmingly to the existence of vote 

dilution in Texas’ district judge election system.5

On January 2, 1990, the district court entered an order 

setting out an interim remedy for the 1990 election of judges 

only, incorporating some elements of a settlement agreement 

entered into by the petitioners and the State defendants. The

“Senate Report No. 97-417, 97th Cong., 2nd Sess. (1982)

5This Court has recognized the Senate Report as the "authoritative 
source for legislative intent" in interpreting amended Section 2. Gingles, 
478 U.S. at 43, n.7.



8

Fifth Circuit stayed the district court’s interim order in 

LULAC on January 11, 1990, upon motion of the defendant- 

intervenor incumbent judges. An interlocutory appeal was 

filed by defendant-intervenors on January 4th and granted by 

the Fifth Circuit on January 11, 1990.

Oral argument was heard before a panel of the Fifth 

Circuit in both LTJLAC and Chisom on April 30, 1990. 

Eleven days after oral argument, the panel reversed the 

district court opinion in LULAC on the ground that the 

election of trial judges is not covered by Section 2.

Sua sponte, the Fifth Circuit ordered rehearing in banc 

in LULAC. Oral argument was heard on June 19, 1990. On 

September 28, 1990, the Fifth Circuit, without reference to 

the merits of the case, reversed the district court’s ruling in 

LULAC by a 12-1 majority. By a 7-6 majority, the Fifth 

Circuit also overruled its prior decision in Chisom v. 

Edwards and held that the "results" test for vote dilution in



9

amended §2 of the Voting Rights Act does not apply to the 

election of judges, "for the cardinal reason that judges need 

not be elected at all." LULAC v. Clements, 914 F.2d 620, 

(5th Cir. 1990). Five judges, in an opinion authored by J. 

Higginbotham, adhered to the position taken by the panel 

that while appellate judges are covered by Section 2, trial 

judges are not. J. Johnson, the author of the original panel 

opinion in Chisom, dissented.

Statement of Facts

The State of Texas elects 375 districts judges from 

districts which, in accordance with the Texas Constitution as 

amended in 1985, may be no smaller than an entire county. 

See Texas Constitution of 1876, as amended, Art. 5 §7 

(a)(i). In addition to the county wide election requirement, 

district judges must run for numbered posts and a candidate 

must receive a majority of the vote cast to win the primary



10

and general election. Although Texas’ district judges sit in 

the counties from which they are elected, district judges 

have statewide jurisdiction in trial courts of general 

jurisdiction. Every county in which plaintiffs challenged the 

at-large electoral system elects more than one district judge.

Harris County is the largest county in the state of Texas 

both by geographic size and by population.6 Harris County 

is also served by the largest number of district judges in the 

state — 59. Although the African American population of 

the County is nearly 20 %, and the African American voting 

age population is 18%, only three of Harris County’s 59 

district judges at the time of trial, or 5.1%, were African 

American. It was undisputed that this was the largest 

number of African Americans to ever serve as district judge 

at the same time in Harris County. Trial Transcript, Vol. 3 

at p.207. The district court further found that although 17

According to the 1980 Census, the population of Harris County is 
nearly 2.5 million.



11

African American candidates have run for district judge in 

Harris County since 1980, only 2 won. App. at 279a.

Petitioners demonstrated that voting is extremely racially 

polarized in Harris County. In 17 contested elections 

involving African American and white candidates, white 

voters never gave more than 40% of the their vote to 

African American candidates. See Supplemental Appendix 

at p .l. African American voters however, persistently gave 

more than 96% of their vote to African American 

candidates. App. at 215a, Race also consistently 

outweighed party affiliation in district judge elections in 

Harris County. In 1986 for example, every white 

Democratic incumbent district judge was reelected to office. 

Every African American Democratic incumbent district judge 

lost the same election. Trial Transcript at Vol. 3, p.139. 

The district court found, and the overwhelming evidence 

introduced at trial proved, that race continues to effect the



12

outcome of district judge elections in the 11 counties 

involved in the suit. App at 217a. The district court also 

found that it would be possible to afford minority voters an 

equal opportunity to elect their candidates of choice to the 

district court bench through the adoption of an alternative 

electoral scheme. See, e.g., Interim Order of District 

Court, January 2, 1990. Petitioners were prepared to 

present, at a remedial hearing, several potential alternative 

election schemes to "completely remedfy] the prior dilution 

of minority voting strength and fully provid[e] equal 

opportunity for minority citizens to participate and to elect 

candidates of their choice." Senate Report No. 97-417, 97th 

Cong., 2nd Sess., atp.31 (1982) [hereafter "S.Rep."]. Two 

of these alternative remedies, cumulative and limited voting, 

modify the at-large electoral structure by removing the 

"winner-take-all" feature and lowering the "threshold of 

exclusion" for minority voters. It was alleged by the



13

petitioners that either cumulative or limited voting would 

cure the proven violation and give African American voters 

in Harris County an equal opportunity to elect district 

judges.

Petitioners’alternative electoral schemes, alleged in their 

complaint, were not yet considered by the district court, who 

entered an interim remedial order without holding a remedial 

hearing.



14

REASONS FOR GRANTING THE WRIT

I. THE FIFTH CIRCUIT’S PER SE RULE THAT AT- 
LARGE JUDICIAL ELECTIONS CANNOT BE 
CHALLENGED UNDER SECTION 2 OF THE 
VOTING RIGHTS ACT SQUARELY CONFLICTS 
WITH THE ONLY OTHER COURT OF APPEALS 
TO DECIDE THIS ISSUE

This case raises the same issue raised by Chisom v. 

Roemer, for writ o f certiorari: whether Section 2 of the 

Voting Rights Act governs judicial elections. However, this 

case raises a further important issue not present in Chisom - 

- whether Section 2 governs the election of trial court judges 

as well as appellate court judges. Therefore, certiorari 

should be granted in both cases.



15

A. The Question Whether Section 2 Governs the Election
of Judges Is One of National Importance

The Fifth Circuit’s interpretation of the scope of §2 in 

LULAC has far reaching implications for voters throughout 

the country. As was noted by the petitioners in Chisom, 

cases challenging the election of judges under Section 2 of 

the Voting Rights Act have been brought in Ohio, Louisiana, 

Texas, Florida, Alabama, Georgia, Arkansas, Illinois, 

Mississippi and North Carolina.7

nSee Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988) (challenge to 
the county wide election of municipal judges in Cincinnatti, Ohio); 
Chisom v. Roemer, supra; Clark v. Edwards, 725 F.Supp. 285 (M.D. 
La. 1988) (challenge to at-large election of family court, district court, 
and court of appeals judges in Louisiana); Nipper v. Martinez, No. 90- 
447-Civ-J-16 (M.D. Fla. 1990) (challenge to the at-large election of trial 
judges in the Fourth Judicial Circuit in Florida); SCLC v. Siegelman, 
714 F.Supp. 511 (M.D. Ala. 1989) (challenge to the numbered post, at- 
large method of electing circuit and district court judges in Alabama); 
Brooks v. State Bd. of Elections, Civ. No. 288-146 (S.D.Ga. 1989) 
(challenge to at-large method of electing superior court judges in Georgia 
under §§2 and 5 of Voting Rights Act); Hunt v. Arkansas, No. PB-C- 
-89-406 (E.D. Ark. 1989) (challenge to the at-large method of electing 
circuit, chancery, and juvenile court judges in Arkansas); Williams v. 
State Bd. o f Elections, 696 F.Supp. 1563 (N.D. 111. 1988) (challenge to 
the at-large method of electing Supreme Court, Appelllate and Circuit



16

The Fifth Circuit’s decision in LULAC has already 

begun to affect the rights of voters in those cases. In three 

of the cases, SCLCv. Siegelman, supra, Nipper v. Martinez, 

supra, Huntv. Arkansas, supra, the respective district judges 

have ordered briefing from the parties on defendants’ 

motions for reconsideration and motions to dismiss. 

Considerable prejudice to the rights of both voters and 

candidates in those jurisdictions could result should this 

Court fail to review LULAC.

Moreover, the confusion created by the Fifth Circuit’s 

decision that Section 2 and Section 5 of the Act do not 

operate in tandem for the election of judges in and of itself 

compels review by this Court. Section 5 and Section 2 have 

traditionally been interpreted to have concurrent application.

Court judges from Cook County, Illinois); Martin v. Allain, 658 F.Supp. 
1183 (S.D. Miss. 1987) (challenge to the at-large election of judges to 
state chancery and circuit courts in three counties in Mississippi); 
Alexander v. Martin, No. 86-1048-CIV-5 (E.D.N.C.) (challenge to the 
statewide election of state superior court judges in North Carolina).



17

This Court recently affirmed that Section 5 of the Voting

Rights Act covers the election of judges, Brooks v. State Bd.

o f Elections 59 U.S.L.W. 3293 (October 15, 1990), and

reaffirmed its decision in Haith v. Martin, that "the Act

applies to all voting without any limitation as to who, or

what is the object of the vote," 618 F.Supp. 410, 413

(E.D.N.C. 1985), aff’d, A ll U.S. 901 (1986) (emphasis in

original). The traditional view that both Section 2 and

Section 5 apply to "all voting" is based on Sections 2 and 5’s

shared definitional section in the Act,8 and follows

Congress’ specific direction that,

under the Voting Rights Act, whether a 
discriminatory practice or procedure is of recent 
origin affects only the mechanism that triggers 
relief, i.e, litigation or preclearance. The 
lawfulness of such a practice should not vary 
depending upon when it was adopted, i.e.. whether 
it is a change.

'indeed "Section 5 uses language nearly identical to that of Section 
2 in defin ing  prohibited practices — ‘any voting qualification or 
prerequisite to voting, or standard, practice, or procedure with respect to 
voting." Mallory v. Eyrich, 839 F.2d 275, 280 (6th Cir. 1988).



18

House Report No. 97-227, 9th Cong., 1st Sess., at p.28

(1982) [hereafter "House Rep."].

However, under the LULAC majority’s analysis,

if a jurisdiction has a discriminatory voting 
procedure in place with respect to judicial elections 
it could not be challenged, but if a state sought to 
introduce that very procedure as a change from 
existing procedures, it would be subject to Section 
5 preclearance and could not be implemented.

Higginbotham concurring, App. at 87a-88a . Such a 

conflicting and contradictory application of the Act will 

prejudice the rights of voters in jurisdictions with existing 

discriminatory judicial election schemes.

This point is powerfully illustrated by the Justice 

Department’s recent objection, under the preclearance 

provisions of Section 5, to fifteen additional district 

judgeships in Texas. On Monday November 5, 1990, the 

Justice Department interposed an objection in Tarrant, 

Dallas, and Lubbock Counties to the additional district



19

judgeships on the grounds that "the at-large method of

election [of these district judgeships] even considered in

isolation from the numbered post and majority-vote features,

produces a discriminatory result proscribed by Section 2."

See Letter of Assistant Attorney General John Dunne, App

at 312a. The Attorney General also noted that,

[t]he LULAC court. . . expressly recognized that 
‘Section 5 of the Act applies to state judicial 
elections’ and until this matter is further clarified 
by the courts we seen no basis for altering our 
Section 5 procedural requirements insofar as they 
relate to Section 2.

(citation omitted)(emphasis added).

It was the same at-large method of electing district 

judges in each of these three counties that was at issue in 

LULAC. This is exactly the "incongruous result" 

anticipated by Judge Higginbotham in his concurrence in 

LULAC.

This Court should review this critical issue.



20

B. The Fifth Circuit’s Decision in LULAC Squarely 
Conflicts with the View of the Only Other Circuit to 
Decide the Issue of Section 2 ’s Applicability to the 
Election of Judges

In reaching its conclusion in Chisom 1, that judicial 

elections must be covered by Section 2, the Fifth Circuit 

relied substantially upon the same reasoning as did the Sixth 

Circuit in Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988). 

The Fifth Circuit in LJJLAC now overrules Chisom I, for 

reasons which directly conflict with the Sixth Circuit’s 

analysis in Mallory.

In Mallory, the Sixth Circuit held that §2 of the Voting 

Rights Act covers the election of municipal trial judges in 

Hamilton County, Ohio. Based on its analysis of the statute, 

legislative history and judicial interpretation of the Act, the 

Sixth Circuit concluded, in particular, that there is "no basis 

in the language or legislative history of the 1982 amendment 

[to the Act] to support a holding that [the] use of the word



21

‘representatives’ was intended to remove judicial elections 

from the operation of the Act." 839 F.2d at 280.

This holding squarely conflicts with the Fifth Circuit’s 

conclusion in LULAC that Congress specifically intended by 

using the word "representatives" to exclude the election of 

judges from coverage under Section 2, and sought instead to 

"leave [the election of judges] to be regulated and controlled 

by state law, by the Constitution, or by other provisions of 

the Voting Rights Act." App. at 25a.

Moreover, Mallory involved trial court judges. 

Therefore, its holding that Section 2 governs judicial 

elections squarely conflicts with the holding of the LULAC 

panel and 5 members of the in banc court that Section 2 

governs only the election of appellate court judges. This 

conflict between the Fifth and Sixth Circuit’s interpretation 

of Section 2’s applicability to the election of judges should 

be resolved by this Court.



22

n. THIS COURT SHOULD REVIEW LULAC IN 
ORDER TO RESOLVE COMPLETELY THE 
Q U E S T I O N  OF  S E C T I O N  2 ’ S 
APPLICABILITY TO THE ELECTION OF 
JUDGES

Review should be granted in this case and it should be 

heard at the same time as Chisom v. Roemer. Unlike 

Chisom, this case raises the additional question whether a 

Section 2 vote dilution analysis can apply to the election of 

trial judges. Review of this question is critical to determine 

the broad issue of Section 2’s applicability to the election of 

judges. Moreover, this question is at the heart of the 

LULAC petitioners’ claims.

Judge Higginbotham’s concurrence in LULAC, joined 

by four other members of the Fifth Circuit, offers an 

alternative interpretation of the scope of the Voting Rights 

Act that draws a distinction between the application of 

Section 2 to the election of trial and appellate judges.



23

Concluding that Section 2 applies to the election of judges in 

general, Judge Higginbotham contends that because 

subdistricting for purposes of electing district judges, unlike 

other offices, would change the structure of the government, 

change the nature of the decision making body, and would 

diminish the appearance if not fact of judicial independence, 

the election of trial judges cannot be challenged under 

Section 2’s results test. See, Higginbotham concurrence at 

91a-l 12a.

By contrast, according to Judge Higginbotham, the 

election of appellate judges to "multi-member 

decisionmaking bodies," lends itself naturally to a single­

member district remedy, and as such, can be challenged 

under Section 2. Id. Following Judge Higginbotham’s 

reasoning, petitioners in Chisom, who challenged the election 

method for the Louisiana Supreme Court, could prevail in 

their vote dilution claim for appellate judges, but LULAC



24

petitioners would be precluded from bringing a similar claim 

against the election of trial judges.

This interpretation of Section 2 renders irrelevant the 

factual findings of vote dilution made by a district court, and 

unjustifiably relies on reservations about the propriety of 

one hypothetical remedial strategy as the sole basis for 

restricting of the scope of the Voting Rights Act. Judge 

Higginbotham’s analysis is perhaps most disturbing in that it 

bases the Act’s entire substantive coverage on the court’s 

perception of the adequacy of one possible fact-specific 

remedy, which the parties never developed or presented at 

a full remedial hearing.

In LULAC, where the petitioners alleged inter alia that 

an alternative modified at-large remedy could cure the 

proven violation and where no remedial hearing was held, 

Judge Higginbotham’s interpretation of the Act is 

particularly ironic. In effect, although Judge Higginbotham



25

holds out the promise of applying the Voting Rights Act to 

minority voters challenging judicial elections, he denies 

relief to minority voters when vote dilution is proven.

Indeed, failure to review Judge Higginbotham’s 

interpretation of the Act may irreparably impair the rights of 

minority voters in Texas. Should this Court grant review of 

Chisom, which involves a challenge to the election of 

appellate judges, and ultimately rule in favor of the Chisom 

petitioners, LULAC petitioners would be remanded to a 

panel of the Fifth Circuit predisposed to dismiss their claim, 

this time on grounds potentially not addressed by the Court 

in Chisom. The LULAC petitioners would then seek review 

by this Court next year on the same issue. Pursuing this 

time-consuming and pointless course on remand could 

effectively preclude the LULAC petitioners from obtaining 

relief in time for the qualifying period of the 1992 judicial 

elections. Such a result would be needlessly prejudicial to



26

the LULAC petitioners. See, e.g., Reynolds v. Sims, 377 

U.S. 533, 585 (1964). Therefore, this court should grant 

review of both Chisom and LULAC.

The question of Section 2’s application to the election of 

trial judges is also of particular and independent significance 

from the broad question raised by Chisom. Judge 

Higginbotham’s likening of the 59 district judges elected 

from Harris County to individual governors or mayors 

elected to single offices, is at odds with this Court’s view of 

trial judges. Other courts, including the district court 

summarily affirmed by this Court in Haith, have regarded 

trial judges elected to numbered posts within a jurisdiction 

as "designated seats in multi-member districts." 618 

F.Supp. at 414. See also SCLC v. Siegelman, 714 F.Supp 

at 517-518. As noted above, the Sixth Circuit also adhered 

to this view of trial judges in Mallory.



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Judge Higginbotham’s view of trial judges may affect 

the outcome of nearly every case challenging the election of 

judges under the Voting Rights Act, since in eight of the 

states where the election of judges has been challenged under 

Section 2, minority voters have challenged the election of 

trial judges. In the three cases in which district courts in 

the Eleventh and Eighth Circuits, respectively, have ordered 

briefing on the issue of Section 2’s application to the election 

judges in light of LULAC, the judicial offices at issue are 

trial judges, whose function and jurisdiction is nearly 

identical to the district judges at issue in Texas. See Nipper 

v. Martinez (trial judges in Fourth Judicial Circuit of 

Florida); SCLC v. Siegelman (circuit and district court 

judges in Alabama); Hunt v. Arkansas (circuit, chancery, 

and juvenile court judges in certain counties in Arkansas). 

The question of Section 2’s application to trial judges is 

directly relevant to these three pending cases.



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CONCLUSION

For the reasons stated above, this Court should grant 

the petition for a writ of certiorari to the United States Court 

of Appeals for the Fifth Circuit.

Respectfully submitted,

Of Counsel:
Matthews & Branscomb 
A Professional Corporation

Julius LeVonne Chambers 
^Charles Stephen Ralston 

Sherrilyn A. Ifill 
99 Hudson Street 
Sixteenth Floor 
New York, N.Y. 10013 
(212) 219-1900

Gabrielle K. M cDonald 
301 Congress Avenue 
Suite 2050 
Austin, Texas 78701 
(512) 320-5055 

Attorneys for Petitioners
* Counsel o f Record



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