Reply Brief of Appellant Dallas County District Judge Entz

    HUGHES & LUCE 

. 2800 MOMENTUM PLACE 

1717 MAIN STREET 

DALLAS, TEXAS 7529 SOO FRANKLIN PLAZA 

Direct Dial Number 

(214) 939-5581 

March 6, 1990 

CERTIFIED MAIL 

RECEIPT NO. P 546-729-989 

Gilbert F. Ganuchedau, Clerk 
U. 8S. Court of Appeals, 5th Circuit 
600 Camp Street 
New Orléans, Louisiana 70130 

Re: League of United Latin American Citizens (LULAC), 

et al, v. F. Harold Entz, et a8l.,, Cause No. 90-8014 

Dear Mr. Ganucheau: 

Enclosed please find an original and seven copies of 

Reply Brief of Appellant Dallas County District Judge PF. 

Harold Entz for filing in the above-referenced case. 

Please return a file-marked copy to me in the enclosed 

envelope. Please note that copies of the above document are 

being sent as indicated in the certificate of service to the 

other parties. 

Pe truly yours, 

NAL Kroll, 
© C. Godbey 

DCG/phl a 

Enclosures 

 



   
Mr. 

HUGHES & LUCE 

Gilbert Ganucheau 

Page 2 

March 6,:1990 

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Hon. Richard Thornburgh 

 



    

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 90-8014 

  

' LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

Vv. 

DALLAS COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

  

On Appeal From The United States District Court 
For The Western District of Texas 

Midland-Odessa Division 

  

REPLY BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

  

Robert H. Mow, Jr. 
David C. Godbey 
Bobby M. Rubarts 
Esther R. Rosenblum 

of HUGHES & LUCE 

Of Counsel: 2800 Momentum Place 
1717 Main Street 

Sidney Powell Dallas, Texas 75201 
STRASBURGER & PRICE (214) 939-5500 
901 Main Street 
Suite 4300 ATTORNEYS FOR 
Dallas, Texas 75202 DEFENDANT-APPELLANT 
(214) 651-4692 JUDGE F. HAROLD ENTZ 

March 6, 1990  



    
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

V. 

DALLAS COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ, et al., 

Defendants-Appellants. 

  

On Appeal From The United States District Court 
For The Western District of Texas 

Midland-Odessa Division 

  

REPLY BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 

  

Robert H. Mow, Jr. 
David C. Godbey 
Bobby M. Rubarts 
Esther R. Rosenblum 

of HUGHES & LUCE 

Of Counsel: 2800 Momentum Place 
1717 Main Street 

Sidney Powell Dallas, Texas 75201 
STRASBURGER & PRICE (214) 939-5500 
901 Main Street 
Suite 4300 ATTORNEYS FOR 
Dallas. Texas 75202 DEFENDANT-APPELLANT 

(214) 651-4692 JUDGE F. HAROLD ENTZ 

March 6, 1990 

 



    
  TABLE OF CONTENTS 

Page 

i TABLE OF CONTENTS ot td. ve oid te sia vine in wa wnt wily i 

] TABLEOF AUTHORITIES. 0, «KE. hl at ov ania wil on a5 wile ii 

ARGUMENT |, 5. . ed a, vy i Wiis Saag ah a nin an Wheat, 1 

i I. SECTION 2 MAY NOT PERMISSIBLY APPLY TO TRIAL COURTS . . . . 1 

A. Section2DoesNot Apply to Trial Judges. '. ... . + . + wi iv 1 

i B. «= Section 2 IsUnconstitutional’ . . . . "et v0 vo uv sive vy 2 

II. THE DISTRICT COURT APPLIED IMPROPER LEGAL STANDARDS 
UNDERSECTION Zt, oie vv vie tint dns vin a He a 6 

A. The District Court Rejected This Court's Test 
| for Racially Polarized Voting Under Section 2 .. . . . . . & + 4 6 

B. The District Court Used the Wrong Baseline for 
i Determining Degree of Minority Electoral Success . . . . . . . . . 9 

C. If the District Court Properly Applied the 
| Voting Righis Act, that"Act Is Unconstitutional =.=. 5% . i wiv. .v 11 

III. THE DISTRICT COURT'S INTERIM REMEDY, AND ANY 
CONCEIVABLE SINGLE MEMBER DISTRICT REMEDY, WOULD 

1 VIOLATE SIGNIFICANT CONSTITUTIONAL PROVISIONS. . . . . . . . 11 

IV. THE DISTRICT COURT'S FINDING UNDER THE TOTALITY OF 
] CIRCUMSTANCES WAS CLEARLY ERRONEOUS . s+ Viv viii vv a 12 

A. ‘Appellees Used Outdated Statistical Data: v . . . . '. + wiv 2 + 5 12 

i B. Under the Proper Standard of Proof the District 
Court's Conclusions Were Clearly Erroneous. . . .... . « «vv + + 13 

1 CONCLUSION: 6. 0 hic lv us ii hy AD 

CERTIFICATE OE SERVICE. i. 0 WER JTS iy a a 17 

] Wh 

 



   

TABLE OF AUTHORITIES 
  

CASES 

Brown v. State, 
118 S.W. 139 (Tex. Cr. App. 1909) 

Chisom v. Edwards, 
839 F.2d 1056 (5th Cir.), 
cert. denied, 109 S. Ct. 390 (1988) 

City of Mobile v. Bolden, 
446 U.S. 55 (1980) 

City of Richmond v. J. A. Croson Co., 
109 S. Ct. 706 (1989). 

Federal Energy Regulatory Com'n v. Mississippi, 
456 U.S. 742 (1982) (O'Connor, J., concurring) . 

Garcia v. San Antonio Metro. Transit Auth., 

469 U.S. 528 (1985) (Powell, ]., dissenting). 

Houston v. Haley, 
859 F.2d 341 (5th Cir. 1988), vacated on other grounds, 
869 F.2d 8707 (5th Cir. 1989) Wri bs 

Monroe v. City of Woodville, 
881 F.2d 1327 (5th Cir. 1989) 

Overton v. City of Austin, 
871 F.2d 529 (5th Cir. 1989) . 

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

Wards Cove Packing Co. v. Atonio, 
109 S. Ct. 2115 (1989) : 

Whitcomb v. Chavis, 

403 U.S. 124 (1971). 

White v. Regester, 
412 U.S. 753 (1973). 

Younger v. Harris, 
401 U.S. 37 (1971) 

Fl 

12n.12 

1-2 

9-10 

5,6 

12 

6-9,15 

13 

6,8,9 

8 n.6 

 



    
STATUTES AND REGULATIONS 

42 US. C. 8 1078 «it. es ay Sh a RE PRs CRED i passim 

MISCELLANEOUS 

S..Rep. No. 97-417, 97th Cong. 2d Sess. (1982)... "vhs JF Ci a by eile oly 14 

- 111 - 

 



    
No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULACQC), et al., 

Plaintiffs-Appellees, 

Vv. 

F. HAROLD ENTZ, et al., 

Defendants-Appellants 

  

REPLY BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ 
  

Appellant Dallas County District Judge F. Harold Entz ("Judge Entz") files this reply 

brief showing that the District Court's unprecedented intrusion into the judicial structure 

of the sovereign state of Texas either misapplied the Voting Rights Act or exceeded the 

constitutionally permissible scope of federal control over intrinsic state functions. 

ARGUMENT   

I. SECTION 2 MAY NOT PERMISSIBLY APPLY TO TRIAL COURTS 

A. Section 2 Does Not Apply to Trial Judges 

All of the Appellees cavalierly maintain that Section 2 applies to trial judges. For 

support, they simply rely on Chisom v. Edwards, 839 F.2d 1056 (5th Cir.), cert. denied, 

109 S. Ct. 390 (1988), as if Judge Entz never acknowledged and distinguished it. Judge 

Entz pointed out that even if the term "representative" could be construed to encompass 

appellate justices, who reach precedent-setting determinations through collegial 

deliberations, it cannot be construed to include trial judges. Appellees have no response 

to this reasoning. Rather than address the fundamental differences in appellate justices 

 



and trial judges -- appellate justices can set policy by saying what the law is while trial 

judges only carry out that policy -- they weakly claim that Texas district judges 

sometimes meet "collegially” and vote on adopting local procedural rules. This misses 

the point. Appellees do not nor could they dispute that logic dictates that Chisom not be 

expanded to apply to trial courts. Their only argument is that Chisom does not expressly 

limit itself. 

Even more fundamentally, Judge Entz has shown that under ordinary rules of 

statutory construction, Section 2, by its own terms, precludes its applicability to judges. 

Not one of the Appellees has responded in any way to the undeniable proposition that the 

plain meaning rule governs the applicability of Section 2 to the judiciary. None have 

disputed that such rule is the proper starting point for construing the meaning or the 

applicability of legislation rather than resort to legislative history or some other test. 

None have denied that the plain and ordinary meaning of the word “representative” 

precludes its applicability to judges. As those courts that have applied that term to trial 

courts, Appellees simply ignore it.1/ 

B. Section 2 Is Unconstitutional 

Judge Entz demonstrated that Congress itself seriously questioned the 

constitutionality of the amendments to Section 2 for at least three reasons. Entz Brief at 

22-23. First, Congress cannot outlaw discriminatory results under the Fifteenth 

Amendment since the Supreme Court has said that only discriminatory intent is 

prohibited under that amendment. Second, unlike Section 5, there was no fact-finding by 

Congress that Section 2 was necessary as a nationwide remedial measure. Hence, the act 

  

Y LULAC, in something of a non sequitur, argues that constitutional claims can lie for 
violations of voting rights in judicial elections. LULAC Brief at 9. Whether a 
constitutional claim for intentional discrimination in judicial election lies is irrelevant to 
the statutory question whether judges are "representatives" within the ambit of Section 2.  



may not legally constitute a "remedial" measure. Finally, Section 2 has an 

unconstitutional retroactive effect. 

The only party to address this issue was Appellee Oliver, and he does so without any 

discussion of issues or authority. He remarks only that Judge Entz's statement of the 

law "is a rather bold assertion ...." Oliver Brief at 19.2/ He completely ignores the 

discussion of the findings of the Subcommittee on the Constitution and mischaracterizes 

Judge Entz's brief to this Court by claiming: "Contrary to the assertion of Entz, the 

Senate Report from the Committee on Judiciary ... endorses the use of the results or 

effects test ...." Id. Judge Entz did not discuss the report from the Committee on the 

Judiciary with respect to the unconstitutionality of Section 2. Judge Entz set out the 

findings of the Subcommittee on the Constitution. There is no doubt that Congress, as a 

body, decided (wrongly) that it could amend Section 2 as it did. The fact is, however, 

that it exceeded its authority for the reasons outlined in the Subcommittee on the 

Constitution's report and for the other reasons outlined by Judge Entz. 

Additionally, Judge Entz has shown that Congress exceeded its authority to enact 

enforcement legislation when it incorporated a standard for proving vote dilution, which 

is founded upon the Equal Protection Clause of the Fourteenth Amendment, into the 

Voting Rights Act which is founded upon the Fifteenth Amendment. Entz Brief at 

24-26. Judge Entz has demonstrated that the enforcement clause of the Fifteenth 

Amendment only justifies the enactment of laws that are "plainly adapted” to guarantee 

the physical casting of a ballot. Protection against vote dilution is provided by the 

Fourteenth Amendment and laws based upon it. 

  

2/ Indeed, it is Oliver who is lacking authority for his naked assertion that 
"Congressional authority exists to expand upon the method for protection of voting 
rights.” Oliver Brief at 19.  



   

Only Appellee LULAC chose to address this issue. LULAC Brief at 28-29. LULAC 

did not dispute that Judge Entz had correctly stated the law with respect to determining 

whether Congress had exceeded its authority to enact laws, and tacitly admitted that if 

the Fifteenth Amendment protects only the physical casting of ballots, then Section 2 is, 

indeed, unconstitutional. Instead, Appellee LULAC chose to argue that the Fifteenth 

Amendment, just as the Fourteenth Amendment, provides protection against vote 

dilution, and includes protection to "the entire political process, including the election of 

candidates of choice." Id. at 29. 

This completely misstates the law. The cases LULAC cites in support of this 

misstatement are all pre-City of Mobile v. Bolden, 446 U.S. 55 (1980). While City of 

Mobile analyzed plaintiffs’ vote dilution claims under the Equal Protection Clause of the 

Fourteenth Amendment, the Court stated clearly that the "Fifteenth Amendment does 

not entail the right to have Negro candidates elected . .. that amendment prohibits only 

purposeful discriminatory denial or abridgment by the government of the freedom to vote 

." City of Mobile, 146 U.S. at 65. Indeed, consistently with City of Mobile, the 

Supreme Court divided the protection provided by the Fourteenth and Fifteenth 

Amendments seven years earlier in White v. Regester, 412 U.S. 753 (1973). In White, the 

Court founded its vote dilution analysis on the Fourteenth Amendment: "The District 

Court considered the Mexican-Americans in Bexar County to be an identifiable class for 

Fourteenth Amendment purposes and proceeded to inquire whether the impact of the 

multimember district on this group constituted invidious discrimination.” Id. at 766 

(emphasis added). While not every pre-City of Mobile case articulately recognizes this 

distinction, and indeed many discuss the protections provided by the two amendments 

interchangeably, the law after City of Mobile is established. The Fifteenth Amendment 

protects only the physical casting of ballots, and the “results” test of Section 2 has 

nothing to do with ballot casting. 

 



    
Finally, Judge Entz demonstrated that the application of Section 2 to the Texas state 

judiciary violates the Tenth Amendment, the Guaranty Clause, and fundamental 

principles of federalism. Entz Brief at 20-21. Judge Entz showed that by applying 

Section 2 in this case, the federal courts would be dictating the finest details of state 

judicial structure and administration, including jury selection, jurisdiction, venue, and 

systems of judicial specialization. The effect of Section 2 on a state's core function, 

such as providing a judiciary for its citizens, must be weighed in light of the residue of 

sovereignty that states continue to possess. Appellee Oliver, the only one to respond, 

completely ignores such sovereignty, and, without taking issue with any of the authority 

cited by Judge Entz and without citing any authority himself, asserts: "Any rights 

reserved to the states have been effectively amended by the Fifteenth Amendment and 

legislatively clarified through the Voting Rights Act.” Oliver Brief at 19-20. Such a 

view ignores a state's independent existence, and would allow "the National Government 

(to) devour the essentials of sovereignty, though that sovereignty is attested by the Tenth 

Amendment.” Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 579 (1985) 

(Powell, J., dissenting). 

Under Oliver's approach, which simply is that states’ rights are whatever Congress 

says they are, Congress could dictate every detail of state government if it chose to do so 

under the guise of the Fifteenth Amendment. This is not the case. "State legislatures 

and administrative bodies are not field offices of the national bureaucracy . . . . Instead, 

each state is sovereign within its own domain, governing its citizens and providing for 

their general welfare." Federal Energy Regulatory Com’'n v. Mississippi, 456 U.S. 742, 777 

(1982) (O'Connor, J]., concurring). There is no doubt that Congress can pass laws 

consistent with the Constitution and that states are bound by them. But when two 

constitutional concerns come in conflict, a balancing is required. "Whenever 

constitutional concerns . .. come into conflict . .. it is and will remain the duty of this 

| (@
)}
 

| 

 



   

Court to reconcile these concerns in the final instance.” Garcia, 469 U.S. at 589 

(O' Connor, ]., dissenting). And the constitutional weight to be given the federal statute 

in the balance is surely less when, as here, the statute in question reaches far beyond the 

scope of the constitutional provision purportedly authorizing it. 

The answer is not simply that the federal law triumphs to the complete demolition of 

all legitimate state concerns. The Courts must recognize the concerns and give them 

their due balance. 

The concept does not mean blind deference to "States’ Rights" any 
more than it means centralization of control over every important 
issue in our National Government and its courts. The framers 
rejected both these courses. What the concept does represent is a 
systemn in which there is sensitivity to the legitimate interests of 
both State and National Governments, and in which the National 
Government, anxious though it may be to vindicate and protect 
federal rights and federal interests, always endeavors to do so in 
ways that will not unduly interfere with the legitimate activities of 
the States. 

Younger v. Harris, 401 U.S. 37, 44 (1971). 

II. THE DISTRICT COURT APPLIED IMPROPER 
LEGAL STANDARDS UNDER SECTION 2 

A. The District Court Rejected This Court's Test 
for Racially Polarized Voting Under Section 2 

Appellees consistently and understandably fail to confront Judge Entz's observation 

that the District Court rejected this Court's test for racially polarized voting, as stated 

in Monroe v. City of Woodville, 881 F.2d 1327 (5th Cir. 1989). The Supreme Court in 

Thornburg v. Gingles, 478 U.S. 30 (1986), established a three-part threshold for Section 2 

dilution claims, including a requirement that plaintiffs prove racially polarized voting in 

the jurisdiction. This Court in Monroe explained that requirement: 

Appellants err by implying that a finding of racial polarization 
in voting behavior is synonymous with a group's political cohesion. 
The terms are quite distinct. That a group's voting behavior is 
racially polarized indicates that the group prefers candidates of a 
particular race. Political cohesion, on the other hand, implies that 
the group generally unites behind a single political “platform” of 
common goals and common means by which to achieve them. For 

 



    
example, the black population of a district may vote in a racially 
polarized manner so as to overwhelmingly favor black candidates, 
but the group may lack political cohesion if it splits its vote among 
several different black candidates for the same office. Where the 
black voters overwhelmingly favor a particular black candidate to 
the exclusion of others, data on racial block voting will be more 
probative to determining political cohesiveness. 

Monroe v. City of Woodville, supra, 881 F.2d at 1331 (emphasis added, footnotes 

omitted).3/ 

Judge Entz established below and in his original brief that Appellees failed to prove 

racially polarized voting -- that black voters in Dallas County preferred black judicial 

candidates.?/ As an extra step, Judge Entz argued (and the proof conclusively showed, as 

Appellees own expert agreed) that black voters prefer Democratic candidates, without 

regard for the race of the candidates. (Tr. 2:147-49, 172; 3:43, 57; 4:127-29; 5:283-84) 

In retrospect, perhaps it was unwise for Judge Entz to have taken that second explanatory 

step, since Appellees have seized upon it to misconstrue Judge Entz's position. 

Appellees mischaracterize Judge Entz and the other Appellants essentially as 

claiming something on the nature of: "partisan voting is an affirmative defense.” LULAC 

  

3/ LULAC suggests that Judge Entz needs to make a "more careful reading” of 
Monroe. LULAC Brief at 11. It suggests that if Judge Entz would do that, he would see 
that "black candidate’ was merely shorthand for "candidate of choice" of black voters. 
With respect, Judge Entz has read the quoted passage quite carefully, and believes this 
Court meant what it said. LULAC also hints that the definition of racially polarized 
voting in Monroe was only dicta, since the issue there was political cohesion. Id. That is 
somewhat disingenuous. As evidenced by the quoted language, the issue was 
distinguishing political cohesion from racially polarized voting. Under those 
circumstances it is hardly fair to claim the explicit definition of racially polarized voting 
needed to accomplish that distinguishing was merely dicta. Finally, LULAC contends 
that Judge Entz's analysis of racially polarized voting confuses that threshold 
requirement with the Zimmer factor of degree of minority electoral success. LULAC 
Brief at 12; see also Oliver Brief at 18. Again, with respect, Judge Entz has done nothing 
more than read and quote this Court's definition of racially polarized voting from 
Monroe. If there is any confusion, given this Court's clear definition, it must lie with 

LULAC and Oliver. 

4/ In fact, Judge Entz's survey data showed the vast majority of black and white voters 
are unaware of the race of judicial candidates. Tr. 4:104-23, 127-29; DI-Dallas Exs. 11, 
12, 14. This makes racially polarized voting impossible under Monroe v. City of Woodville. 

~3
 

 



Brief at 14-17; Oliver Brief at 6, 14; HLA Brief at 35. Indeed, some Appellees go so far 

as to caricaturize Judge Entz's position as claiming that any partisan election is immune 

from attack under Section 2. Oliver Brief at 15; HLA Brief at 35. Nothing could be 

further from the truth.5/ 

All Judge Entz argued is that Appellees failed to carry their burden of proof under 

Gingles and Monroe v. City of Woodville, which was to show that black voters preferred 

black candidates. The fact that Judge Entz further established the true state of affairs 

-- black voters prefer Democratic candidates -- does not indicate that Judge Entz 

assumed the burden of proving an affirmative defense, or that Appellees were relieved of 

carrying their burden of proving racially polarized voting.5/ Significantly, none of the 

Appellees argues that the District Court did in fact evaluate racially polarized voting 

  

5/ First, Judge Entz obviously did not take that extreme position. Second, it is not 
consistent with the standard of Monroe v. City of Woodville. Certainly it is possible for 
voters in a partisan system to indicate a preference for candidates of a particular race 
regardless of the candidate's partisan affiliation. That could be shown by, for example, 
proof that minority candidates of a party did worse than majority candidates of that 
party. The proof in Dallas County was just the opposite and showed that black Democrats 
fared no better or worse than white Democrats. Tr. 4:104-09; DI-Dallas Ex. 9A. Oddly, 
Oliver seems to think that proof that only 28% of the total 70% Republican votes were 
straight ticket shows that Republican voters pay attention to the race of the candidate. 
Oliver Brief at 3. Of course the fact that 42% of Republican judicial voters will vote for 
at least one Democratic candidate says nothing about whether voting is color blind. 

6/ Indeed, this Court's standard for racially polarized voting under Monroe v. City of 
Woodville and Judge Entz's additional proof of the true explanation of partisan polarized 
voting are both wholly consistent with Whitcomb v. Chavis, 403 U.S. 124 (1971). The 
Court there essentially held that proof that minority candidates lost because they were 
Democrats showed the system was not discriminatory because it inherently showed that 
the minority candidates did not lose because of their race. LULAC's co-Appellee, the 
Houston Lawyers Association, effectively acknowledges this reading of Whitcomb. HLA 
Brief at 34. Thus, contrary to LULAC's contention, LULAC Brief at 17, this inquiry does 
not covertly reintroduce intent into the test. It simply acknowledges the obvious point 
that proof that election returns are explained by one factor -- partisan affiliation -- 
inferentially rebuts arguments that they are explained by something else -- racially 
polarized voting.  



    
under the proper Monroe v. City of Woodville standard.”/ Because of the District 

Court's failure to apply the proper legal standard, the judgment of liability at minimum 

must be reversed. Because the evidence was undisputed at trial that in Dallas County 

black voters do not prefer black candidates, but prefer Democratic candidates regardless 

of the race of the candidate,8/ no remand is required for Dallas County and judgment 

may be rendered in favor of Judge Entz and Dallas County.9/ 

B. The District Court Used the Wrong Baseline 
For Determining Degree of Minority Electoral Success 

Judge Entz argued that in determining the "Zimmer factor” of degree of minority 

success, that degree should be measured against the proportion of minorities in the pool 

of qualified applicants, citing recent employment discrimination cases. See Entz Brief at 

32-33; Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989); City of Richmond v. 

  

7/ Conversely, as Oliver notes, Judge Entz did not contest proof of racially polarized 
voting under Oliver's definition. Oliver Brief at 16. But Judge Entz did not contest the 
contention that "candidates supported by the majority of black voters usually lose in 
Dallas” because that consideration is the wrong legal inquiry under Monroe, Thornburg v. 
Gingles, and Whitcomb v. Chavis. 

8/ Oliver appears to try to create a dispute on this point by claiming that losing black 
judicial candidates claimed that they would have fared no better had they run as 
Republicans. Oliver Brief at 10. Oliver's transcript cites do not support his claim; 
indeed, some of the cited testimony is not even from a judicial candidate. 

9/ Judge Entz cannot let pass the egregious distortion of Judge Wright's testimony 
offered by Oliver. Oliver claims that Judge Wright purportedly testified that she would 
have a difficult time running for election in a majority Anglo district, and that her 
testimony "underscore[d] plaintiffs’ contention that voting is racially polarized in Dallas 
County.” Oliver Brief at 10-11. That is precisely the opposite of Judge Wright's 
testimony. 

She testified that she was living proof that voting in Dallas now is not racially 
polarized, since she as a black woman was able to defeat a white Democratic incumbent. 
She testified further that, ironically, she believed single member districts would cause 
voting in Dallas to change from not racially polarized to racially polarized. Her concern 
was that single member districts would cause a change of perception by majority voters 
that some districts were black districts and that black candidates should run only from 
those districts. Tr. 4:191-94, For Oliver to claim this testimony supports plaintiffs’ 
position is the height of revisionism. 

 



    

J.A. Croson Co., 109 S. Ct. 706 (1989). Appellees’ response to that argument is twofold. 

First they claim that this argument reveals a fundamental misunderstanding of the Voting 

Rights Act, which focuses on the rights of the voter, not the rights of the candidate. 

E.g., LULAC Brief at 18-19; HLA Brief at 40. It is Appellees, rather, who misunderstand 

the Zimmer factors, not all of which have to do with the voter. This particular factor 

deals with minority electoral success, i.e., the success of minority candidates.10/ Since 

this factor on its face focuses on the candidate, it is appropriate to measure what it 

discusses -- electoral success -- in relation to the candidate, not the voter. 

This interpretation also makes sense if one understands the purpose of the factor, 

which is to compare the results as they exist to what would happen if the electoral 

process were truly color blind. If judicial elections were in fact color blind, black lawyers 

would run for judges in the same proportion as white lawyers, thus the percentage of 

black candidates would track the percentage of black lawyers; similarly, black candidates 

would win judicial elections in the same proportion as white judicial candidates, thus the 

percentage of winning black candidates would track the percentage of overall black 

candidates, which tracks the percentage of eligible black lawyers. So, if this Zimmer 

factor is intended to compare reality against a color-blind ideal, the relevant comparison 

is the percentage of eligible black lawyers, not the percentage of black voters. 

Appellees’ second attack on this argument is that no other Voting Rights Act case 

supports it. E.g., HLA Brief at 41. They point to the fact that not all voters are eligible 

for other elective offices, but voting age population percentages are used as the pertinent 

comparison in elections for those offices. LULAC Brief at 18 n.5. But the qualifications 

at issue there are residency and age. Judge Entz is aware of no reason to suppose that 

  

10/ Not even Appellees argue that this factor deals with the success of minority voters, 

which presumably would indicate how many times minority voters "won" in the sense of 

voting for the prevailing candidates. 

- 10 « 

 



    

those qualifications would in any way cause the pool of black candidates legally qualified 

to be state senators to be any different than the pool of voters as a whole. In this case, 

however, the evidence was uncontroverted that requiring that judicial candidates be 

lawyers with a minimal level of legal experience substantially altered the racial 

composition of the pool of legally qualified candidates relative to the population (or 

voting age population) as a whole. Thus, regardless what proof was used in other cases 

involving other offices with other electoral requirements, the electoral requirements here 

show that the pool of qualified applicants is racially quite distinct from the populace as a 

whole, and that blacks are overrepresented on the Dallas County bench in comparison to 

their participation in the pool of legally qualified judicial candidates.1l/ 

C. If the District Court Properly Applied 

the Voting Rights Act, that Act Is Unconstitutional 

Judge Entz argued that the Voting Rights Act would be unconstitutional either if the 

race of the candidate did not matter or if the challenged electoral practice could be 

stricken absent a showing that it caused the inability of minorities to get elected. Entz 

Brief at 34-36. None of the Appellees responded to these arguments at all. 

III. THE DISTRICT COURT'S INTERIM REMEDY, 

AND ANY CONCEIVABLE SINGLE MEMBER DISTRICT REMEDY, 

WOULD VIOLATE SIGNIFICANT CONSTITUTIONAL PROVISIONS 

Judge Entz argued in detail why the interim plan, and indeed any conceivable single 

member district plan, would violate other significant constitutional protections. Entz 

  

11/ Appellees attack Dr. Champagne's testimony regarding his evaluation of different 

methods of judicial selection and minority judges by noting that the size of the pool of 

legally qualified minority judicial candidates does not cause the success or failure of an 

individual candidate once he or she decides to run. E.g., LULAC Brief at 19; HLA Brief 

at 41. Of course, that was not Dr. Champagnes testimony to begin with. His testimony 

was that in reviewing a multitude of various factors, including region of the country, 

method of selection, etc., the single best predictor of percentage of minority judges was 

the percentage of minority lawyers. (Tr. 4:130; DI-Dallas Ex. 18A) It is somewhat ironic 

that Appellees vacillate between claiming that causes of the outcome of individual 

elections are irrelevant when it is convenient for them to do so, but crucial when 

evidence of statistical trends is awkward for their agenda. 

RE 

 



    

Brief at 36-38. No Appellees address these arguments. Ironically, Appellees in the name 

of voting rights propose to disenfranchise the vast majority of voters from voting for the 

judges who have say over their lives and property. They fail to explain why that is 

constitutional.12/ They similarly fail to explain why allocation of courts of specialized 

jurisdiction at the whim of a presiding judge is constitutional. They similarly fail to 

explain why drawing a pool of jurors in contravention of the Sixth Amendment is 

constitutional. They similarly fail to explain how giving additional judicial seats to 

districts on the express basis of racial composition of the districts does not deprive voters 

of other races in other districts of equal protection. Surely they would have offered an 

explanation for these flaws if they could do so consistent with Rule 11 and faithfulness to 

the Constitution. 

IV. THE DISTRICT COURT'S FINDING UNDER THE TOTALITY 

OF CIRCUMSTANCES WAS CLEARLY ERRONEOUS 

A. Appellees Used Outdated Statistical Data 

judge Entz argued that Appellees failed to carry their burden of proof since their 

statistical data rested upon the 1980 census and untested statistical assumptions that 

translate overall population into a surrogate for the population that votes in judicial 

races. Entz Brief at 39-41. Appellees do not deny their data is ten years old, they do not 

deny that there have been changes in Dallas in the last ten years.13/ and they do not deny 

that the assumptions underlying their use of "next best” data are untested. Instead, they 

  

12/ LULAC seems to argue that the unconstitutional nature of this disenfranchisement is 

reduced by the fact that Justices of the Peace are elected from smaller districts but have 

county-wide jurisdiction. LULAC Brief at 29 n.8. Aside from the illogical nature of that 

argument, it is not true. The cited references do not show that JPs have county-wide 

jurisdiction, as in fact they do not. Brown v. State, 118 S.W. 139 (Tex. Cr. App. 1909). 

13/ Oliver misstates Judge Entz's proof that the 1980 census data is no longer accurate. 

Oliver Brief at 6. In addition to testimony that the Asian community had grown, Judge 

Entz offered direct testimony that minorities were much less "compact’ than in 1980 

because black and Hispanic residents had dispersed widely throughout the county from 

1980 to 1989. Tr. 4:217-18. 

 



   

argue that the data they used are the best available. Oliver Brief at 6. That is not good 

enough. It is their burden to prove a violation of Section 2 with current data, not with 

the "best available” data. Houston v. Haley, 859 F.2d 341, 344, 349 (5th Cir. 1988), 

vacated on other grounds, 869 F.2d 807 (5th Cir. 1989). If the data used cannot carry that 

burden, then Appellees cannot prevail, regardless if the inadequate data was the best 

available.14/ 

B. Under the Proper Standard of Proof the 
District Court's Conclusions Were Clearly Erroneous 

1. Electoral Success. -- Judge Entz noted that out of the nine contested primary and 

general district court elections with black candidates, the black candidate won four of 

those elections, (Tr. 4:105; DI-Dallas Ex. 9A) which approaches fifty percent. Entz Brief 

at 41. Appellees do not dispute that fact but simply characterize it as "misleading," 

LULAC Brief at 25, presumably because it defeats Appellees’ claims. The fact of the 

matter, which Appellees stubbornly refuse to confront, is that black candidates can and 

do run for and win judicial office in Dallas County as Republicans. The only misleading 

argument about minority electoral success is Appellees’ position that minority electoral 

success does not count if it is Republican minority electoral success. 

2. Types of Election Systems. -- Judge Entz has nothing further to add to his 

previous discussion of this factor. Entz Brief at 41-42, 

  

14/ Judge Entz is baffled by LULAC's comments regarding statistical significance. 
LULAC Brief at 24. Judge Entz did not criticize the results reached because they failed 
to include any measure of statistical significance, but because they rested on data based 
on wholly untested assumptions that minorities would register, appear to vote, etc. in the 
same proportion as their representation in the population as a whole. Statistical 
significance is wholly unrelated to testing the validity of assumptions about the subject 
population. In other words. Judge Entz did not criticize the statistical significance of the 
results reached given a particular starting data set, but rather the assumptions that were 
used to simulate the needed data set (racial composition of voters in judicial elections) 
from a different data set (racial composition of population as a whole). Similarly, Oliver 
mischaracterized this attack as criticizing Appellees for failing to use voting age 
population data. Oliver Brief at 6-7. Apparently Appellees are more comfortable 
confronting straw men than confronting Judge Entz's actual arguments. 

13 - 

 



    
3. Existence of a Discriminatory Slating Process. -- Although Appellees appear 

disturbed that the District Court followed this Court's definition of a slating process, see 

Overton v. City of Austin, 871 F.2d 529, 534 (5th Cir. 1989), in lieu of their proposed 

definition, Oliver Brief at 7, 21, they do not fault the District Court's application of that 

standard finding no discriminatory slating process.15/ 

4. Lingering Effects of Past Discrimination. -- Judge Entz attacked Appellees’ 

proof on this factor arguing that Appellees failed to prove that lower economic status 

today was the result of discrimination yesterday or that it presently hindered political 

participation. Appellees in turn attack this argument saying that they need not prove any 

link between the status today and discrimination in the past. Oliver Brief at 7-8, 21-22; 

LULAC Brief at 25-26. They are wrong. The Senate Report itself stated this factor as 

"the extent to which members of the minority group ... bear the effects of 

discrimination in such areas as education, employment and health, which hinder their 

ability to participate effectively in the political process.” S. Rep. No. 97-417, 97th 

Cong. 2d Sess. 28-29 (1982), reprinted in 1982 U.S. Code Cong. & Ad. News 177, 206-07. 

Thus, the factor itself requires a showing both that the current socioeconomic status is an 

"effect[] of discrimination” and that it presently hinders participation in the political 

process. There was absolutely no evidence in the record establishing either of those two 

required facts with respect to Dallas County. 

5. Tenuousness of the System. -- Appellees do not challenge the District Court's 

finding that the reasons for the current system are not tenuous. LULAC simply claims 

  

15/ Oliver appears to believe that alleged hostility of the Republican Party to minorities 
shows that it is a slating organization. Although that is irrelevant given the District 
Court's finding, Judge Entz must dispute Oliver's characterization of the record on the 
Republican Party. There was ample testimony that the Republican Party actively 
solicited both the involvement and the candidacy of minorities. Tr. 4:79-82, 216. The 
best proof of that is Judge Wright's victory, in which she led the Republicans 
county-wide. 

sd 

 



that "has no probative value.” LULAC Brief at 26.167 It was this Court and not Judge 

Entz, however, who added this consideration to the Zimmer factors. 

6. Racial Appeals. -- Both LULAC and Oliver attack Judge Entz for supposedly 

misrepresenting the record in stating that the District Court found only one instance of a 

racial appeal in a judicial campaign. LULAC Brief at 26; Oliver Brief at 8. Of course 

that is exactly what the District Court found; the additional two races to which Appellees 

refer involve a non-judicial race and a non-racial appeal. Judge Entz simply did not feel 

it was misrepresenting the record not to discuss elections or election techniques that are 

not part of the Zimmer analysis. Again, as Judge Entz noted, the reference in the 

judicial race actually was to the black candidate's religion, and he won the race anyway. 

7. History of Discrimination. -- Appellees do not contest Judge Entz's claim that 

they failed to show that the old history of official discrimination has any current impact 

of the ability of minorities to participate in the political process. LULAC rightly notes 

that this Zimmer factor does not require a showing of present day effect. LULAC Brief 

at 26. Nonetheless, Judge Entz cannot help but wonder when residents of the modern-day 

South will ever be permitted to have their government and electoral systems stand or fall 

on their effects today. How long must the sins of the fathers be visited upon the children? 

CONCLUSION   

Appellees substantially failed to confront Judge Entz's arguments. They appear to 

think that surviving one constitutional attack immunizes a statute against all other 

possible constitutional attacks. Thus, although they address Judge Entz's view that the 

Fifteenth Amendment does not authorize protecting anything other than access to the 

  

16/ Qliver obliquely challenges that finding by suggesting that Judge Entz introduced no 
evidence that county-wide election minimized the risk of undue influence and promoted 
judges with a county-wide perspective. Oliver Brief at 3. That is not correct. Tr. 4:82, 
84, 91, 191-94,  



    
ballot itself, they ignore all of the other constitutional attacks that Judge Entz directs at 

Section 2 as applied on these facts and as used to support this interim remedy. They also 

fail to explain why their burden in proving racially polarized voting is not to prove what 

this Court required in Monroe v. City of Woodville: a showing that black voters prefer 

black candidates. Significantly, they do not even attempt to carry that burden, because 

the undisputed evidence showed black voters prefer Democratic candidates, not black 

candidates, and that black Republican candidates never lose in Dallas County. They also 

fail to explain how the district court's ultimate fact finding for Dallas County based on 

the totality of the circumstances is not clearly erroneous -- when it is a factual finding 

based on old data that ignores the facts that blacks have substantial electoral success 

approaching fifty percent, that there is no slating, that there was no proof that prior 

discrimination caused present lower socioeconomic status or that that status prevented 

participation in the political process, that the reasons for the current system are not 

tenuous, or that past discrimination has no present day impact on voting rights. 

For all the reasons discussed above, Judge Entz requests that this Court reverse the 

plainly erroneous findings and decision of the District Court and render judgment in Judge 

Entz's favor. 

Respectfully submitted, 

      CL Se AL, 
Robert H. Mow, Jr. ~~ / 
  

  

David C. Godbey 
Bobby M. Rubarts / 
Esther R. Rosenblum ji 

S16 

 



   

of HUGHES & LUCE 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 
(214) 939-5500 

ATTORNEYS FOR DALLAS 
COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ 

Of Counsel: 

Sidney Powell 
STRASBURGER & PRICE 
901 Main Street 

Suite 4300 
Dallas, Texas 75202 
(214) 651-4692 

CERTIFICATE OF SERVICE 
  

I certify that a true and correct copy of the foregoing instrument was served by 

certified mail, return receipt requested (except where indicated) on William L. Garrett, 

Rolando Rios, Susan Finkelstein (FEDERAL EXPRESS), Sherrilyn A. Ifill, Gabrielle K. 

McDonald (FEDERAL EXPRESS), Edward B. Cloutman, [II (FEDERAL EXPRESS), E. Brice 

Cunningham, Renea Hicks (FEDERAL EXPRESS), Ken Oden, David R. Richards, J. 

Eugene Clements (FEDERAL EXPRESS), Darrell Smith, Michael J. Wood. Joel H. Pullen, 

and Seagal V. Wheatley, John L. Hill, Jr. (FEDERAL EXPRESS), Michael Ramsey, R. 

James George, and Hon. Richard Thornburgh in accordance with the Federal Rules of 

Appellate Procedure this 6th day of March, 1990. 
Ee” 

™ \ 

7 rd fl Ls vel l. 
  

Attorney for Dallas County Ez 
District Judge F. Harold Entz 7 4