Brief for Plaintiff Intervenor-Appellees Houston Lawyers Association et al. on Remand

    IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), COUNCIL #4434, 
et al., 

Plaintiffs-Appellees, 

HOUSTON LAWYERS ASSOCIATION, 
et al., 

Plaintiff-Intervenor- 
Appellees, 

JIM MATTOX, et al., 

State Defendants- 

Appellants, 

JUDGE SHAROLYN WOOD AND 
JUDGE F. HAROLD ENTZ, 

Defendant-Intervenor- 
Appellant. 

  

Appeal from the United States District Court for the Western 
District of Texas, Midland-Odessa Division 

  

BRIEF FOR PLAINTIFF INTERVENOR-APPELLEES 
HOUSTON LAWYERS ASSOCIATION, ET AL. ON REMAND 

PAMELA C. KARLAN JULIUS LEVONNE CHAMBERS 

University of Virginia SHERRILYN A. IFILL 
School of Law 99 Hudson Street, 

Charlottesville, VA 22901 16th Floor 
(804) 924-7810 New York, N.Y. 10013 

C. LANI GUINIER GABRIELLE K. McDONALD 

University of Pennsylvania Law Office of Arthur 
School of Law L. Walker, Jr. 

3400 Chestnut Street 7800 N. Mopac 
Philadelphia, PA 19104 Suite 215 
(215) 898-7032 Austin, TX 78750 

512-346-6801 

 



  

CERTIFICATE OF INTERESTED PERSONS 

The undersigned counsel certifies that the following listed persons have an interest in the 

outcome of this case. These representations are made in order that the Judges of this Court may 

evaluate possible disqualification or recusal. 

1. The plaintiffs-appellees in this action: LULAC Local Council 4434, LULAC Local 

Council 4451, LULAC (Statewide), Christina Moreno, Aquilla Watson, Joan Ervin, Matthew W. 

Plummer, Sr., Jim Conley, Volma Overton, Willard Pen Conat, Gene Collins, Al Price, Theodore 

M. Hogrobrooks, Ernest M. Deckard, Judge Mary Ellen Hicks, Rev. James Thomas. 

2. The attorneys who represented the plaintiffs-appellees: William L. Garrett and 

Brenda Hall Thompson of the law tirm of Garrett, Thompson & Chang; Rolando L. Rios of the 

Southwest Voter Registration and Education Project; Susan Finkelstein of Texas Rural Legal Aid, 

Inc. 

3. The Harris County plaintiffs-appellees in this action: Weldon Berry, Alice Bonner, 

Rev. William Lawson, Bennie McGinty, Deloyd Parker, Francis Williams and the Houston Lawyers’ 

Association (HLA), a non-profit corporation. 

4. The attorneys who represented the Harris County plaintiff-appellee: Julius Le Vonne 

Chambers, Sherrilyn A. Ifill, of the NAACP Legal Defense and Educational Fund, Inc.; Gabrielle 

Kirk McDonald of the Law Office of Arthur L. Walker, Jr. 

5 The Dallas County plaintiff-appellees: Jesse Oliver, Fred Tinsley and Joan Winn 

White. 

6. The attorneys who represented the Dallas County plaintitf-appellees: Edward B. 

Cloutman III of the law firm of Cloutman, Albright & Bower; and E. Brice Cunningham. 

7 The defendants-appellants in this action: Dan Morales, Attorney General of the 

State of Texas; George Bayoud, Secretary of State of Texas; the members of the Texas Judicial 

 



  

Districts Board: Thomas R. Phillips, Mike McCormick, Ron Chapman, Thomas J. Stovall, Jr., 

James F. Clawson, Jr., John Cornyn, Robert Blackmon, Sam B. Paxson, Weldon Kirk, Jeff Walker, 

Ray D. Anderson, Joe Spurlock II, Leonard E. Davis. 

8. The attorneys representing the defendants-appellants: Dan Morales, Mary F. Keller, 

Renea Hicks, Javier Guajardo, James Todd of the Attorney General’s Office of the State of Texas; 

John L. Hill of the law firm of Liddell, Sapp, Zivley, Hill & LaBoon; and David R. Richards. 

9. The Harris County defendant-appellant: Judge Sharolyn Wood. 

10. The attorneys representing the Harris County defendant-appellant: J. Eugene 

Clements, John E. O'Neill, Evelyn V. Keyes of the law firm of Porter & Clements; and Michael J. 

Wood. 

11. The Dallas County defendant-appellants: Judge Harold Entz, Judge Tom Rickoff, 

Judge Susan D. Reed, Judge John J. Specia, Jr., Judge Sid L. Harle, Judge Sharon Macrae, and 

Judge Michael D. Pedan. 

12. The attorneys representing the Dallas County defendant-appellants: Robert H. 

Mow, David C. Godbey, Bobby M. Ribarts, Esther R. Rosenbaum of the law firm of Hughes & 

Luce. 

13. The amici in this action: Judges: Larry Gist, Leonard P. Giblin, Jr., Robert P. 

Walker, Jack R. King, James M. Farris, Gary Sanderson, Mike Bradford, Patricia R. Lykos, Donald 

K. Shipley, Jay W. Burnett, Bob Burdette, Richard W. Millard, Wyatt W. Heard, Michael T. 

McSpadden, Ted Poe, Joe Kegans, Scott Brister, Henry G. Schuble III, Charles Dean Huckabee, 

Woody R. Denson, Norman R. Lee, Doug Shaver, Charles J. Hearn, David West, Tony Lindsay, 

Louis M. Moore, Dan Downey, Bob Robertson, John D. Montgomery, Allen J. Daggett, Robert 

S. Webb III, Robert L. Lowry, Robert B. Baum and Eric D. Andell. 

14. The attorneys tor the amici in this action: Seagal V. Wheatley, Donald R. Philbin, 

Jr., of the law firm of Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc. 

 



  

Hoch. 4 9p 
  

Attorney of Record for Harris County 
aintiffs-Appellees 

 



  

TABLE OF CONTENTS 

Page 

7 STATEMENT OF JURISDICTION ofr sve aie se niin ev 1 

. STATEMENT OETHEISSUES ....... 0 eh cds ai antisense wningin 1 

STATEMENT ORTHE CASE... .... . 0. diana sisnnine nine wainininin 1 

COURSEOF PROCEEDINGS BELOW... .. 0... aeiidnn nn 1 

STATEMENT OF FACTS isa sain vidi ly ale si aia 1 

SUMMARY OF THE ARGUMENT ..... ce dae ci dahinses snanims os 8 

ARGUMENT i or ves ee ti rn ni a eC J diese ss 10 

Ir OdUCHON a ies se iriver i ae ee a 10 

L Appellants’ Arguments Regarding the State’s Interests Ignore the 
ProperStandard of Review... , ... - viv ic olde dann ins 11 

IL The State Has Failed to Show that Texas In Fact Has An Interest in 
nkage lt hn ei th tie aa se in ae an 14 

III. The Other Interests Advanced by the State Were De Minimis and 
Entitled to Little Weight in the District Court’s Analysis . ......... 18 

IV. The State’s Interests in the Use of an At-large System to Elect Trial 
Judges Cannot Alone Outweigh Proven Vote Dilution as a Matter of 
Aer ER RE ie a Re SPER Re ee 21 

A. Judicial Elections Do Not Warrant a Different Standard of 
Review. ha a de ni ER a a 22: 

\Y% The District Court’s Ultimate Finding of Dilution Should Be 
AlRmmed a a Sat ve te Ca 31 

A. The District Court Properly Found Racially Polarized Voting . 31 

1. Minority Voters Need Not Prove that Racially Polarized 
Voting is Caused by "Racist’ Voting .............. 33 

 



  

2, Partisan Voting Does Not, In Fact, Explain the 
Outcome of Judicial Elections in Harris County ...... 35 

B. The District Court Properly Found the Presence of Other 
GIngles FaCIOTS ih. uc oeieiais viv swiss ainsi vin inn tien alee iain 36 

C. The District Court Properly Found the Presence of Senate 
Report Factors i. . oi. vee vii vives ea Viniale vi 37 

VIL This Case Should Be Remanded to the District Court for 

Implementationofa Remedy .........0. ioe ini vnsses 41 

CONCLUSION . rise. ee iia s vin vie siiate «nxn im win imate xn vals 41 

 



  

TABLE OF AUTHORITIES 

Cases Pages: 

Anderson v. Bessemer City, 
4T00LS. S64(1985) , cnn ise as ae sa 17, 30 

Bazemore v. Friday, 
4780.8. 388 (1986). - cv me ries a es Ee se a 36 

Bradas v. Rapides Parish Policy Jury, 
SOS F.2d 1109 (SthCir. 1973) ...... sve vone tn snnsinssssnsonsn vs 30 

Campos v. City of Baytown, 
S40 F.2d 1240 (Sty Cir. 1988)... . viii sr cn en a a 11, 3 

Chisom v. Roemer, 

S01U.S. _ L,1ISL.EG. 24348 (1991) .....0 co vincnn sr dna ui 3,9,22,.23 

Corder v. Kirksey, 

535 F.2d 708 (SthiCir. 1978) = evr vine nvr vsis sms v ina s ain ant onalnins 30 

CoxviKatz, 204 NYS. 2d S44 (1968)... . vise sivsvn sr nivss neces vans 14 

Cross v. Baxter, 

604 Fd 37S (Sh Cir. 1979)... vcs ninrin stan nmin aia svn via 29 

Dillard v. Crenshaw County, 

831 F.2d 246 (Ah Cir 1986)... . . . . ceive ons sal nies se wey va 20 

Ewing v. Monroe County, Miss, 
740 F.Supp. 417 (ND Miss. 1990) .....0 Lh ve dhne se sams win nin 24 

Gingles v. Edmisten, 
SOO ESupp 34S(ED. N.C, 1034) ... ci. sven ceric sie ie 33 

Gregory v. Ashcroft, 
5000.8. AISLE. 2d410(1901) ... ...... 0 i ee ey 23 

Hendrix v. Joseph, 

SSO R216 (Sth Cir 1977). eo sles inv vin a nasa na ies 29 

HLA v. Attorney General of Texas, 
SOLUS. | L1ISL.Ed. 2d379(A091) . ... 0... vo cline on saath iin Passim 

 



  

Holhouser v. Scott, 

335 F.Supp. MBAMDN.C. 1971)... 0. . cece lin nner vrai nie ans 14 

Hughes Tool Co. v. Varel Mfg. Co, 
336 F.2dBI (Sth Cir. 1904)... .. ois sini band nn nnn 13 

Kemlon Products & 

Development Co. v. United States, 

646 F.2d IBS Cir. 1981)... cvs err enne ed a ae 13 

Kirksey v. City of Jackson, Miss., 
663 F.2d 659, 662 (Sth Cir. 1981) rehearing and rehearing en banc denied, 669 F.2d 

36S Cir. 1982)... ch he i ie ea a ie 34 

LULAC v. Clements, 

914 F.2d 620 (5th Cir. 1990) rev'd, 

HSLEA 2d370 (1991)... . ch ee vile sts srs as sie ee a a 2 

LULAC v. Mattox, MO-88-CA-154 

(WD. Tex. Nov 8,108). vist rev nnie dltsine mn sites av mvn savas Passim 

Martin v. Allain, 

6353 F.Supp. 1133 (SD. Miss. i1087) ....... co. shrbnnivr ian anvinye, 24 

Martin v. Mabus, 

700 F.Supp. 327 (SD Miss. 1988)... .. cc cove virdanniinnnss 14, 24 

McDaniel v. Sanchez, 

452 0.8. 130 (1981)... tL ee ba ra ae 29 

McGill v. Gadsen County Commission, 

3S FE2A277(S CIN. 1976)... ovsin is vv vs vissininns sta sienna avis tive nin va 30 

McIntosh Cty NAACP v. City of Darien, 
60S Fd 253 (SthCIr 1979) ©... conv inhivn sds pv sitina als ins Winns 29 

McNeil v. Springfield Park District, 
666 F.Supp. 1208 (C.D. Ill. 1987) 

afd SSI Fd 937 (7th Cir. 1988). ch vi vc nV res ies var 24 

Nevett v. Sides, 

333 FE 2d 1300 (Sth Cir. 1976)... oe vy aia pis vl ae a 29 

 



  

Oil, Chemical & 
Atomic Workers v. Ethyl Corp., 
TOS F224 933, (Sth Cir 1933) ... ova ser ale ee 12 

Overton v. City of Austin, 
BNF S29(SthCir-1939) ........0..... rsh tiie, 35 

Paige v. Gray, 
SB F.2d IOS (SHACH- 1976)... sonnei vs asain nan aiaininns 31 

Parnell v. Rapides Parish School Board, 
363 F.2d ASO (Sth Cir 1977)... ss var a a aire 29 

Pullman-Standard v. Swint, 

436108. AB A002) i. i a aa a a ee a a as 12 

Reed v. State, S00 S.W.2d 137, 

1383 (Tex. Crim. App. 1973)... oor ol sd de nme ve aia 16 

Robinson v. Commissioners Court, 

Anderson County, SOSF.2d 674 (5th Cir. 1974) ........... cvs 30 

Sweatt v. Painter, 

330 U.S. 829 (1930). ol. = i a ser ra a a ea a 39 

Texas Dept. of Community 
Affairsv. Burdine, 450 U.S. 248 (1981) ..... 0c inv in rn nnn sigan es 23 

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

Upham v. Seamon, 456 U.S. 37 (1982) .........cciiiininnnnnnnrnsnrnnnnn. 22 

Wallace v. House, 

SIS FOO Cir 1975)... os aah iia a a eee 30 

Westwego Citizens for a Better 
Gov't v. Westwego, 872 F.2d 1201 
Gh Clr 1989) hr... ss cn cnr aie nih re ee vi 20, 31 

White v. Regester, 412 U.S. 755(1973)  . . .i. vc viiionn na pmnn cat vin anvisin nines pA 

White v. Weiser, 

JID US. S83 (A073) oe cee i ay ih Si ley ii aie ee sn 29, 39 

Zenith Radio Corp. v. Hazeltine 
Research, Inc., 395 U.S. 100.1969) :.. ... co uu ivi vids ooo nines « wie aia 2 

 



  

Zimmer v. McKeithen, 

485 F.2d 1297. (Sth Cir. 1973) i. . +. 0... antes tle ale ainalele 27-30 

Statutes: 

Article 5, §7(a)(1), 
Texas Constitution OF AS70  .. oi ie os rine mais sin tininis sins sian ov sion 2 

Voting Rights Act of 1965 as amended, § 5,42 U.S.C. §1973¢ ............. Passim 

Other Authorities: 

"Texas Judicial System Annual Report,” 

Texas Judicial Council, Office of Court 

Adnrinistration, December 1987 .. . . . . oc co ns iii ee 3 

"Texas Minority Judges," Office of Court Administration, 

Texas Judicial Council, January 31,1991 .......... . 0... uo hels inns 1 

"The Census Bureau’s Report on Cities," 

The New York Times, January 27, 1991... 0... dis vines sn nn enna vs 1 

Boyd & Markman, "the 1982 Amendments to the 

Voting Rights Act: A Legislative History," 
40 Wash. and Lee L. Rev. 1347 (1983) i... . .. cc vi vinnie vn ida adnan 26 

House Report No. 97-227, 
97th Cong., 1st Sess. (1982)... .. ch vivir rte it rr nse vera 27 

Karlan, "Maps and Misreadings: 

The Role of Geographic Compactness in Racial Vote 
Dilution Litigation," 24 Harv. CR.-C.L.L.Rev. 173 (1989) ................ 3 

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

Woodbury, "Is Texas Justice for Sale?" 

Time, January 11, 4988... 0 a ee a a ae a2 

 



  

(1) 

STATEMENT OF JURISDICTION 

Jurisdiction is provided pursuant to 28 U.S.C. § 1291 and §1292(b). 

STATEMENT OF THE ISSUES 

Is the finding of the district court that the at-large method of electing district 

judges in the nine targeted counties in Texas clearly erroneous? 

 



  

STATEMENT OF THE CASE 

COURSE OF PROCEEDINGS BELOW 

HLA Appellees incorporate by reference the Course of Proceedings set out in the 

State Appellants’ Brief on Appeal. 

STATEMENT OF FACTS 

Harris County is the most populous county in the State of Texas and encompasses 

1,734 square miles. The County has a 1990 Census population of over 2.8 million. The city 

of Houston, Harris County’s major urban center, is the largest city in Texas, and is the 

fourth largest city in the United States by population. "The Census Bureau's Report on 

Cities," The New York Times, January 27, 1991 at Sec. 1:14, Col.1. 

Although the population of Harris County is nearly 20% African American,’ and 

African American candidates have run in 17 contested district judge general elections in 

the County since 1980, only 2 African American candidates have won. LULAC v. Mattox, 

MO-88-CA-154 (W.D. Tex. Nov 8, 1989), Record Excerpts at 73 (hereafter all citations to 

the district court opinion will be to "RE at __"). Currently, only three of Harris County’s 

59 district judges (5% of the total) are African Americans.’ "Texas Minority Judges," 

  

'The voting age population of Harris County was 18% African American according to both 1980 

and 1990 census figures. Texas does not keep voter registration figures by race. 

"These figures are reflected on the statewide level, as well. Although African Americans 

constitute 12% of Texas population, they constituted only 2% of the State’s district judges (7 of 

375) in 1989 (currently 9 of 386). "Texas Minority Judges," Office of Court Administration, Texas 

Judicial Council, January 31, 1991. In July 1988 when this lawsuit was filed, no African Americans 

were appellate court judges anywhere in the state of Texas. In fact, between 1980 and 1990, only 

1 

 



  

Office of Court Administration, Texas Judicial Council. No more than three African 

American district judges have ever served in Harris County at one time. TR. at 3-207. 

In accordance with a 1985 amendment to the Texas Constitution, electoral districts 

for district judges consist of one or more whole counties. The same amendment provides 

that districts smaller than a county may be created if approved by a countywide 

referendum. See Article 5, §7(a)(i), Texas Constitution of 1876, as amended. District 

judges in Texas have statewide jurisdiction, but usually sit in the countywide or multi-county 

district from which they are elected. Candidates for district judge must reside in the county 

or multi-county district for two years in order to run for office. See 1990 Candidates’ 

Guide to Primary and General Elections, Office of the Secretary of State of Texas. 

Each candidate for district judge runs for a designated numerical seat within the county 

or multi-county district, for example, "375th district court." Elections for district judges in 

Texas are held in even-numbered years at the same time as primary, run-off and general 

elections for state legislative and municipal offices. Terms are staggered, and district judges 

serve for four years. District judge candidates, and indeed all judges in Texas, are 

nominated through party primaries. If no district judge candidate wins a majority in the 

party primary, then the two top voter-getters must compete in a run-off primary. In the 

general election, each judicial candidate’s political party is indicated on the ballot. 

District judges in Texas are elected from multi-member at-large districts within a 

  

1 African American served as an appellate court judge in Texas. During the same time period, only 

8 African Americans served as district judges statewide. Id. 

2 

 



  

winner-take-all’ election system. Both the multimember and winner-take-all features of 

Texas’ district judge election system were challenged by the HLA petitioners in this action. 

Although most district courts in Texas exercise both criminal and civil jurisdiction, 

in metropolitan areas such as Harris County, pursuant to both legislative action and 

informal arrangements made within the county, the district courts are organized into four 

specialized areas: civil trial courts, criminal trial courts, juvenile courts and family law 

courts. See "Texas Judicial System Annual Report,” Texas Judicial Council, Office of 

Court Administration, December 1987 at 10. In Harris County, there are 25 civil district 

courts. No African American has ever been elected to a civil district trial seat in Harris 

County. TR. at 3-207. 

Following a one week trial, the district court made extensive findings of fact and 

conclusions of law supporting the minority voters’ claims of vote dilution in Harris County. 

In accordance with the Supreme Court’s standards set out in Thornburg v. Gingles, 478 U.S. 

30 (1986), for determining the existence of vote dilution, the district court found with 

respect to Harris County that: (1) the African American population in Harris County is 

sufficiently numerous and geographically compact to constitute a majority in a number of 

fairly drawn sub-districts;* (2) the African American commmunity in Harris County is 

politically cohesive; and (3) white voters in Harris County vote sufficiently as a bloc so as 

  

In a winner-take-all system "a bare political majority (fifty percent + 1) of the electorate can 
elect all representatives and totally shut out a minority." Karlan, "Maps and Misreadings: The 
Role of Geographic Compactness in Racial Vote Dilution Litigation," 24 Harv. C.R.-C.L.L.Rev. 
173, 222 (1989). The remaining 49% of the population may be excluded from electing any 
candidates of choice. 

*Plaintiffs demonstrated, in fact, that African Americans could constitute a majority in at least 
nine judicial electoral sub-districts. RE at 15. 

 



  

usually to defeat the candidate of choice of minority voters, absent special circumstances. 

In addition, the district court made specific findings concerning the list of objective 

factors (hereinafter "Senate Factors") that Congress identified as relevant to determining 

the existence of vote dilution.” Senate Report No. 97-417, 97th Cong., 2nd Sess. (1982) 

  

These typical objective factors include: 

1. the extent of any history of official discrimination in the state or political 

subdivision that touched the right of the members of the minority group to register, 

to vote, or otherwise to participate in the democratic process; 

2. the extent to which voting in the elections of the state or political subdivision is 

racially polarized; 

3. the extent to which the state or political subdivision has used unusually large 

election districts, majority vote requirements, anti-single shot provisions, or other 

voting practices or procedures that may enhance the opportunity for discrimination 

against the minority group; 

4. if there is a candidate slating process, whether the members of the minority 
group have been denied access to that process; 

5. the extent to which members of the minority group in the state or political 

subdivision bear the effects of discrimination in such areas as education, 

employment and health, which hinder their ability to participate effectively in the 

political process; 

6. whether political campaigns have been characterized by overt or subtle racial 

appeals; 

7. the extent to which members of the minority group have been elected to public 

office in the jurisdiction. 

Additional factors that in some cases have had probative value as part of plaintiff's evidence 

. to establish a violation are: 

whether there is a significant lack of responsiveness on the part of elected 
officials to the particularized needs of the members of the the minority 

group. 

whether the policy underlying the state or political subdivision’s use of such 
voting qualification, prerequisite to voting, or standard, practice or 

procedure is tenuous. 

 



  

(hereinafter "S. Rep. at __"). 

Recognizing that among the Senate Report factors the existence of racially polarized 

voting and the extent to which minorities have been elected to office in the challenged 

jurisdiction are most significant, Gingles, 478 U.S. at 45 n.15, the district court made 

particularly extensive findings regarding these two factors. 

The district court’s findings with regard to racially polarized voting were based on 

the dramatic results of the experts’ analyses. In the 17 elections analyzed by the plaintiffs’ 

expert, Dr. Richard Engstrom,® and the 23 elections analyzed by the defendants’ expert, 

Dr. Delbert Taebel, African Americans and whites voted differently in every election. RE 

at 32. While African Americans consistently gave more than 97% of their vote to African 

American candidates in the 17 judicial elections analyzed by Dr. Engstrom, whites never 

gave even a bare majority of their votes to an African American candidate. Id. at 26. 

Even straight ticket party voting and candidate incumbency failed to garner 

significant white votes for African American judicial candidates. One example of the 

virtual refusal of white voters to support African American judicial candidates in Harris 

County is particularly telling. In 1986, 19 Democratic incumbent judges ran for re-election. 

All 16 white Democratic incumbents were re-elected. All three African American 

Democratic incumbents lost.” TR. at 3-166. 

  

S. Rep. at 28-29. 

Dr. Engstrom’s work on quantitative analyses was cited with approval by this Court in Gingles, 

478 U.S. at 53 n.20. 

"These 19 Democratic incumbents shared campaign strategy and tactics, posing for a group photograph 
which was mailed to voters throughout the County as part of a collective party effort to retain judicial seats 

held by Democrats. TR. at 3-209. Yet only the African American incumbents lost their bids for re-election. 

3 

 



  

Overall, Dr. Engstrom testified that, since 1980, 52% of white Democratic candidates 

have won contested district judge elections in Harris County, while only 12.5% of African 

American Democratic judicial candidates have won. TR. at 3-134-135. This testimony was 

uncontroverted at trial. 

The district court also found that of the 17 African Americans who have run in 

contested district judge elections in Harris County since 1980, only 2 have won. RE at 73. 

In fact, it was undisputed that no more than three African Americans have ever served 

simultaneously as district judges in Harris County. Tr. at 3-207. 

With regard to the remaining Senate Factors, the district court made additional 

findings which supported the petitioners’ claims. The court noted the "well chronicled" and 

"undisputed" history of discrimination in Texas, that touched upon the right of minorities 

to vote and participate "in the democratic system governing [the] State." RE at 69-71. The 

court’s findings were supported by the testimony of lay witnesses who attested to the 

historical and continued presence of racial discrimination in Texas. See TR. at 3-205, 217; 

4-8, 16-17, 24-25. 

Since 1975, Texas has been subject to the special preclearance provisions of §5 of 

the Voting Rights Act of 1965. Between 1975 and 1982, when the Act was last amended, 

the Justice Department had made 130 objections to changes in voting procedures submitted 

by the state of Texas, because it was unable to conclude that the changes proferred would 

have neither a discriminatory purpose nor a discriminatory effect on minority voters. See 

Voting Rights Act: Hearings on S.53, S.1761, S.1992 and H.R. 3112 Before the Subcomm. on 

the Constitution of the Sen. Comm. on the Judiciary, 97th Cong., 2d Sess. 1783 (1982) 

 



  

(hereinafter "1982 Hearings"). 

The district court found that Harris County uses an unusually large election district 

for district judge elections. Indeed the court found that the unusually large size of Harris 

County "further enhance[s] the problems that minority candidates face when they seek 

office.” RE at 71-72. This conclusion was supported by defendant Thomas Phillips, Chief 

Justice of the Supreme Court of Texas, who testified that it is more difficult for minority 

lawyers to raise the funds necessary to mount a successful campaign for district judge in 

large urban areas such as Harris County. TR. at 5-84. 

The district court also found that the requirement that district judge candidates run 

for a specific numbered judicial seat within the county is equivalent to a numbered post 

system, which prevents the use of bullet, or single-shot’ voting. RE at 71. 

Finally, while the district court did not find that the current at-large system of 

electing district judges is intentionally discriminatory, it was "not persuaded that the reasons 

offered for its continuation are compelling." RE at 77. 

Considering the "totality of the circumstances," the district court concluded that 

under the challenged electoral scheme, "[p]laintiffs do not have an equal opportunity to 

participate in the political processes and to elect candidates of their choice" in district judge 

elections. RE at 83. 

The district court made no findings as to the appropriate remedy for the proven 

violation, but urged the state legislature, then in special session, to select and approve an 

  

*"Single-shot voting enables a minority group to win some at-large seats if it concentrates its 
vote behind a limited number of candidates and if the vote of the majority is divided among a 

number of candidates." Gingles, 478 U.S. at 38 n.5 (citation omitted). 

7 

 



  

alternative district judge election scheme. RE at 92. The district court also announced that 

it would entertain motions to enjoin future state district judge elections "pending the 

Remedy Phase of this litigation," should the Legislature fail to adopt an alternative election 

system. Id at 93. 

SUMMARY OF THE ARGUMENT 

The Supreme Court in Chisom v. Roemer, 501 U.S. ___, 115 L.Ed. 2d 348 (1991), 

and HLA v. Attorney General of Texas, 501 U.S. ___, 115 L.Ed. 2d 379 (1991), squarely held 

that minority voters have the right to participate equally in the election of state court 

judges. The "important category of [judicial] elections," Chisom, 115 L.Ed. 2d at 369, is 

entitled to no exemption from the Act. 

In accordance with the Court’s decision, the state may not assert its interest in using 

an at-large election method to trump minority voters’ right to elect candidates of their 

choice to serve on the state court judiciary. The State’s argument that its interest in linking 

the electoral and jurisdictional district of trial judges should be afforded controlling weight 

in the dilution inquiry is without merit for several reasons. First, the state did not prove 

at trial that Texas, in fact, has ever shown interest in "linkage." Second, the district court 

found that those interests the state did assert were not compelling. The court’s findings 

are not clearly erroneous and therefore must be affirmed. Third, even if the state had 

proven that it has a strong interest in using at-large elections for district judges, the 

Supreme Court and Congress have decided that the state’s interest cannot trump other 

 



  

factors in the vote dilution inquiry. 

Appellants’ argument asks this court to turn its back on its traditional method of 

vote dilution inquiry and Congressional instruction in two extraordinary ways. First, the 

state argues that the strength of Texas’ interest in the at-large election of judges presents 

a question of law upon which the entire vote dilution inquiry must be decided. The State 

boldly argues that as a matter of law the state’s interest "overrides the other factors that are 

present, including any claims that the . . . system . . . has some discriminatory effects.” State 

of Texas’ Brief at 12 (emphasis added). 

Second, under the test advanced by appellant-intervenor Wood, courts reviewing 

vote dilution challenges to judicial elections should engage in a "balancing test" where "the 

severity of the dilution" is weighed against "the intrusion on state interests." Wood Brief 

at 29. Under this analysis, mere ordinary vote dilution would not result in a liability 

determination. Only dilution deemed "severe," would warrant intrusion into a state’s "right 

to structure its judicial selection system." Wood Brief at 16. 

The new vote dilution tests offered by the State and Judge Wood ignore Congress’ 

instructions in codifying the "results" test of amended §2, and the relevant decisions of the 

Supreme Court. 

The inevitable result of the standards advanced by the appellants is clear: judicial 

election schemes which result in minority vote dilution would be immunized from the 

strictures of amended §2. The appellants’ argument, therefore, seeks to do indirectly what 

the Supreme Court has expressly forbidden in both Chisom and HLA. 

In the "totality of circumstances," the district court appropriately found that the 

 



  

currently constituted at-large method of electing district judges in Harris County violates 

amended §2 of the Voting Rights Act. The court’s decision was amply supported by the 

factual record. The evidence adduced at trial demonstrated that African American voters 

are unable to elect their candidates of choice as district judges. The district court found 

that partisan politics did not explain the gross disparity in success rates among white and 

African American judicial candidates. The district court properly weighed the interests the 

state actually advanced below and found that the state’s interests as articulated at trial were 

not compelling. None of these findings are clearly erroneous. 

Accordingly, this case should be remanded to the district court for proceedings to 

determine the appropriate remedy. 

ARGUMENT 

Introduction 

In order to promote clarification of the issues on appeal, and to address the broader 

questions raised by the court, this brief will proceed in three parts. Since many of the 

court’s "Questions for Counsel,” and most of the appellants’ arguments rest on the 

assumption that the state of Texas proved at trial that it has a "compelling" interest in 

maintaining a "linkage" between the jurisdictional and electoral base for district judges, at 

the outset we will examine the interests actually advanced by the State below, and review 

the district court’s treatment of the State’s evidence. Arguments I, II, and III will address 

those issues. 

10 

 



  

Argument IV will discuss the weight to be afforded the state’s interests under 

controlling law. 

The final two arguments, V and VI of the brief, will address the district court’s 

ultimate finding of dilution in this case. 

I. Appellants’ Arguments Regarding the State’s Interests Ignore the Proper 

Standard of Review 

Appellants proceed in their arguments as though the question before this court is 

the policy desireability of linking the geographical and jurisidictional base for elected 

judges. They ignore the critical question at issue in this case: whether the current at-large 

method of electing district judges in nine counties in Texas denies minority voters an equal 

opportunity to participate in the election of judges, in violation of §2 of the Voting Rights 

Act of 1965, as amended. 

The district court found the existence of such a violation. The Supreme Court 

squarely decided in Thornburg v. Gingles, that this court’s review of the district courts 

finding is sharply circumscribed by Rule 52(a). 478 U.S. at 79-80. Therefore this court 

cannot set aside the district court’s vote dilution findings unless they are "clearly 

erroneous." 

Just as the court’s ultimate finding of dilution is subject to review under Rule 52, 

so too the court’s subsidiary findings related to the Gingles factors and relevant factors 

identified by Congress in the Senate Report factors are subject to the Rule. See Campos 

11 

 



  

v. City of Baytown, 840 F.2d 1240, 1243 (Sth Cir. 1988) (district court’s "ultimate finding of 

.. . dilution . . . and its subsidiary findings are subject to the clearly erroneous standard of 

appellate review for fact finding"). Thus, questions such as whether voting is racially 

polarized, whether minority voters are politically cohesive, whether there is a history of 

discrimination in the relevant jurisdiction, and whether the state’s interests in using the 

challenged election schene are tenuous, are subject to the clearly erroneous standard. 

The state’s interest cannot be separated from the other factual inquiries in the 

results test, and insulated from the strict standards of Rule 52(a). As the Supreme Court 

has noted, Rule 52(a) 

does not make exceptions or purport to exclude certain 
categories of factual finding from the obligation of a court of 
appeals to accept a district court’s findings unless clearly 
erroneous. [Rule 52(a)] . . . does not divide facts into 

categories. 

Pullman-Standard v. Swint, 456 U.S. 273,287 (1982). 

In reviewing the district court’s findings regarding the state’s interests, this court may 

not consider and weigh the evidence de novo, Zenith Radio Corp. v. Hazeltine Research, Inc., 

395 U.S. 100, 123 (1969), nor may this court set aside the district court’s findings "simply 

because [it] might have arrived at a different result on the same evidence." Oil, Chemical 

& Atomic Workers v. Ethyl Corp., 703 F.2d 933, 935 (5th Cir. 1983). 

As we will discuss in the next section, the district court found that the state had 

three interests in maintaining its countywide judicial electoral system in Harris County: 

(1) judges elected from smaller districts would be more 
susceptible to undue influence by organized crime; (2) changes 
in the current system would result in costly administrative 

12 

 



  

changes for District Clerk’s offices; and (3) the system of 
specialized courts in some counties would disenfranchise all 
voters rights to elect judges with jurisdiction over some 

matters.’ 

RE at 75-76. The State did not prove that Texas has an interest in "linkage." 

This court may not presume that the State has such an interest in "linkage" or that 

its interest, if existent, is compelling. The appellant’s rhetorical assertion of the state’s 

interest in "linkage" on appeal cannot support a reversal of the district court’s findings 

under the clearly erroneous standard. See e.g, Kemlon Products & Development Co. v. 

United States, 646 F.2d 223 (5th Cir. 1981)(the court of appeals may not make a clearly 

erroneous finding based on evidence not developed before the district court). 

As this court has eloquently cautioned, Rule 52, 

commit(s] to trial judges and not to the court of appeals the 
important and frequently decisive role of fact finding and such 
may not be transferred to the court of appeals in the optimistic 
hope that with three heads it will not only turn out differently 
but that the result will be better. 

Hughes Tool Co. v. Varel Mfg Co., 336 F.2d 61,62 (5th Cir. 1964). 

  

*The specialized courts argument is not the same as the "linkage" argument the State has made 
on appeal. Indeed, since the specialized court system is not required by the state Constitution, is 
used only in some counties in the state, and is implemented often through informal arrangements 
within the counties, it is questionable that the specialized court system actually serves a "state" 

interest. 
Moreover, appellants only asserted concern related to specialized courts was its unsupported 

assumption that it would be difficult to allocate specialized courts among sub-districts. Of course, 
plaintiffs never challenged the use of the specialized court system, per se. Harris County Judicial 
Clerk Ray Hardy testified that the system of specialized courts could be maintained even using if 
electoral sub-districts were implemented. TR. at 4-263. Judge Bunton also found that the 
specialized court system could be accomodated through various remedies. RE at 77-78. 

13 

 



  

IL The State Has Failed to Show that Texas In Fact Has An Interest in 
"Linkage" 

The appellants argue on appeal that Texas’ "compelling" interest in linking the 

jurisdictional and electoral district for trial judges warrants a different analytical standard 

of review under §2. The State cannot simply assert that it has an interest in "linkage." It 

must prove to the fact finder that such an interest actually exists, and that the interest is 

"compelling." Yet the State never proved that linkage is, in fact, a Texas state policy. 

The State perfunctorily touched on the "linkage" interest at trial. Indeed, the only 

references at trial to "linkage" as a state interest are isolated references in the testimony of 

two witnesses, Chief Justice Thomas Phillips, and Dr. Anthony Champagne, a political 

scientist. Chief Justice Thomas Phillips testified: "in my opinion, the district judge should 

not be responsible to the voters over an area that is smaller than that area in which the 

district judges exercises primary jurisdiction." TR. at 5-78 (emphasis added). Similar 

opinion testimony was presented by Dr. Anthony Champagne, a political scientist. See TR. 

4-141-144. 

Neither Dr. Champagne nor Justice Phillips could testified that Texas enacted the 

current method of electing judges because of a historical state policy promoting "linkage." 

  

The State’s interest in linkage cannot be assumed in part because "linking" the jurisdictional 
and electoral district for judges is not a universally employed method for democratically electing 
judges in the United States. This is evidenced by the fact that other states, undoubtedly also 
concerned with maintaining a fair and independent judiciary, elect judges whose jurisdictional base 
is larger than their electoral district. See e.g., Martin v. Mabus, 700 F.Supp. 327, 332 (S.D.Miss. 
1988) (chancery, circuit and county court judges elected from sub-districts with countywide 
jurisdiction); Holhouser v. Scott, 335 F.Supp. 928 (M.D.N.C. 1971) (upholding statute permitting 
judges with statewide jurisdiction to be elected from districts); Cox v. Katz, 294 N.Y.S. 2d 544 (1968) 
(upholding election of judges with citywide jurisdictions from districts within city). 

14 

 



  

To the contrary, the testimony of Phillips and Champagne contradicts the central argument 

the State now advances as its reason for preserving "linkage" for elected judges -- promoting 

judicial accountability to voters." The unsupported testimony of witnesses who could 

provide no more than their unadorned and unsubstantiated opinion as to their interest in 

linkage does not constitute proof that "linkage" is an important Texas policy. 

In contrast to the unpersuasive opinion testimony of Justice Phillips and Dr. 

Champagne, the overpowering weight of the evidence in the record reveals that, in fact, 

n12 Texas has no consistent state policy favoring "linkage. 

First, Texas’ own Constitution belies its purported interest in "linkage." Art. 5 

  

Chief Justice Phillips conceded that since in practice district judges in Texas are often called 

to sit in to other counties to help with docket control, TR. at 5-120, districts judges under the 

current system are already responsible to voters outside their electoral district. 

Dr. Champagne refuted the notion that "linkage" is essential to ensuring the accountability 

of elected judges: 

I would say that when you are talking about elective judges and you 
are talking about accountability, you are talking about something that 
is going to work imperfectly. Accountability is a kind of sword over 
the heads of the elected judges. It may never fall . . . I think the 
idea of judicial accountability is a judge who acts improperly will 
have the sword fall. In reality it doesn’t always work that way, of 
course. And sometimes the sword falls on judges even though there 
iS no impropriety. 

TR. at 4-141. The essence of this testimony is that there is, in fact, no way to ensure "judicial 

accountability” for elected judges -- whether or not there is a coterminous jurisdictional and 
electoral base. Dr. Champagne’s testimony, therefore, does not support the notion that "linkage" 

is an important state interest. 

The appellants failed to make a "linkage" argument to the district court in their Post-Trial 
Briefs or Post-Trial Reply Briefs. The "linkage" argument is introduced for the first time by the 
appellants in their appeal brief to this court. In that brief, the State raises the linkage argument 
only in furtherance of its theory, now rejected by the Supreme Court, that trial judges as "single- 
person offices" are exempt from vote dilution claims under §2. 

15 

 



  

§7(a)(i) of the Texas Constitution, enacted in 1985, provides that subject to countywide 

referendum district judges may be elected from sub-districts within a county. Thus Texas 

does not enforce "linkage" statewide -- instead it permits counties to opt out of the 

countywide election structure for judges. Nothing in the Constitution makes mention of 

whether judges elected from such sub-districts would continue to enjoy countywide primary 

jurisdiction, or whether primary jurisdiction would be limited to the electoral sub-district. 

If Texas has a compelling interest in linkage, no evidence of that interest is apparent in its 

Constitution.” 

Second, linking the electoral and jurisdictional bases for judges is not a consistently 

applied state policy. Texas, for example, does not require "linkage" for Justices of the 

Peace, who are elected from precincts within the county, but exercise countywide 

jurisdiction. See Bradley v. Swearingen, 525 S.W.2d 280,282 (Tex. Civ. App. 1975). More 

importantly, Texas district judges have statewide, not countywide, jurisdiction. The county 

from which district judges are elected is simply their area of primary jurisdiction. Chief 

Justice Phillips conceded that district judges in Texas often are called to hear cases in 

counties outside of the county from which they were elected and in which they exercise 

primary jurisdiction. TR. 5-120. Thus, voters in Texas often appear before judges over 

whom they have no electoral control." The rationale for "linkage" proferred by the State 

  

“Even if Texas had proven that the State had an historical policy in favor of "linkage," that 

policy interest was abandoned when Texas amended the Constitution in 1985 and provided that 

counties may choose to elect judges trom sub-districts. 

“The constitutionality of this practice in Texas has been upheld. See Reed v. State, 500 S.W.2d 

137, 138 (Tex. Crim. App. 1973). 
Furthermore, voters in Texas are not guaranteed under the current countywide election 

system that they will appear before judges whom they elected. The Texas venue rules permit voters 

16 

 



  

on appeal -- judicial accountability -- is not ensured under the current method of electing 

district judges. 

This court may not simply presume that Texas has an interest in "linkage." When, 

as in this case, the weight of evidence overwhelmingly supports the district court’s findings 

then the court’s findings are not clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 

573-574 (1985). 

But even if the State had proved that Texas has an important state policy favoring 

linking the jurisdictional, electoral district for judges, that fact would not change the 

outcome of the dilution inquiry. The very core of the "linkage" argument rests on the 

premature assumption that sub-districts would be the remedy adopted by the Court. The 

argument further assumes that a sub-district remedy would necessitate a break in "linkage." 

Judge Bunton highlighted the speculative nature of the State’s concern when he found that: 

under a single member scheme or some other scheme Judges 
may be made responsible to voters over an area no smaller or 
larger than the area where they have primary jurisdiction. This 
Court finds no reason why all Judges cannot exercise general 
jurisdiction over their geographic area of responsibility. 

RE at 77. 

Plaintiffs have not challenged the "linkage." This is evidenced by the HLA’s 

contention that several available remedial options would not disturb the linkage between 

  

to be hailed into courts throughout the state. As Judge Entz testified, criminal district judges 

elected from Dallas County, for example, handle "felony grade offenses alleged to have been 

committed in Dallas County." TR. at 4-76. Thus, a defendant in a Dallas court may appear before 
a Dallas County judge because the nature of the offense occurred in Dallas, even if the defendant 

does not reside in Dallas and, as such, could not vote tor Dallas judges. 

17 

 



  

jurisdictional and electoral base, but would cure the dilutive nature of the district judge 

election scheme. Cumulative and limited voting, for example, are remedies which preserve 

the countywide election, and thus the linkage, but nonetheless give minority voters an 

opportunity to elect their candidates of choice. See also cite to Ed Still’s article and 

elaborate discussion The State of Texas conceded in briefs to the Supreme Court that 

these alternative remedies are "a creative [and] useful" solution to remedying dilution in 

judicial elections. See HLA v. Attorney General of Texas, No. 90-813, Brief of State 

Respondents at p. 29. 

III. The Other Interests Advanced by the State Were De Minimis and Entitled to 

Little Weight in the District Court’s Analysis 

The interests actually raised by the state at trial -- fear of undue influence by 

organized crime in judicial sub-districts, the need for administrative changes in jury 

selection, and venue for judicial sub-districts, and the concern that the specialized court 

system could not be reconciled with the use of sub-districts -- were speculative and 

unsupported. The district court’s decision that these interests were "not compelling" was 

amply supported by the record. 

First, as discussed above, Texas’ repeated assertion that the countywide method of 

electing judges serves a critical state interest is undermined by the State’s own Constitution 

which permits, subject to county referendum, the creation of judicial districts smaller than 

a county. See supra at . If the State were truly concerned that sub-districts would lead 

to a corrupt judiciary, then it would not permit counties to opt out of the countywide 

18 

 



  

election system, nor would it elect Justices of the Peace from precincts within the counties. 

Second, the appellants’ purported fear that organized crime would control sub- 

districts was contradicted by their own witnesses. Defendant-intervenor Judge Harold Entz 

testified that he knew of no instances in which Justices of the Peace, elected from sub- 

districts within the county, have been subjected to undue influence. TR. at __. Judge Entz 

ultimately concluded that "undue influence exists county-wide or statewide." TR. at 4-88. 

Dr. Anthony Champagne was unable to refer to any actual evidence that sub-county 

electoral districts for judges in Texas would lead to "parochialism” or undue influence. 

Instead, his belief that sub-districts would encourage corruption was based "on the writings 

of James Madison" and "political science from Madison to Herbert Jacobs." TR. at 4-169- 

170. The State’s witnesses were simply unable to establish that Texas’ purported fear that 

organized crime would unduly influence judges elected from sub-districts was rational, let 

alone compelling. 

Moreover, Texas’ claim that the use of electoral sub-districts for judges in Harris 

County would result in corruption and control by organized crime elements, is undermined 

by the current existence of countywide electoral districts in Texas with populations 

comparable to the population of hypothetical sub-districts for Harris County. If Harris 

County were divided into 59 judicial sub-districts, each district would contain a population 

of approximately 41,000." Currently, over 100 of Texas’ district judges are elected from 

  

15Since the district court has not had an opportunity to explore appropriate remedial options 
for the dilution found below, the State’s concern about the creation of small sub-districts is, in 

reality, a hypothetical argument based on the most extreme sub-districting plan that could be 
created for district judge elections. Many less extreme sub-district remedies, as well as alternative 
at-large remedies exist which could cure the proven dilution. These options can be explored at the 

remedy stage by the district court. 

19 

 



  

areas with a population of less than 50,000. The State certainly never tried to prove that 

judges elected in these districts have been subject to undue influence. 

The appellants’ arguments that a sub-district electoral system will result in 

administrative restructuring for jury selection, venue, and docket equalization, and that the 

specialized court system used in the counties could not be maintained under a sub-district 

system were equally unsupported. More importantly, this court has held that administrative 

considerations should not "play a role in determining whether there has been a violation of 

section 2." Westwego Citizens for a Better Gov't v. Westwego, 872 F.2d 1201, 1211 (5th Cir. 

1989) (emphasis in original)." In particular, the court in Wesitwego decided that the 

disruption of the specialized functions of elected officials’ resulting from a proposed 

change in the electoral system "is not a sufficient ground for maintaining an otherwise 

flawed system." Westwego, 872 F.2d at 1211, citing Dillard v. Crenshaw County, 831 F.2d 246, 

252 (11th Cir. 1986). 

Even if the administrative concerns raised by the appellants were germane to the 

dilution question, the appellants failed to demonstrate that these concerns were realistic. 

First, all of the concerns with regard to jury selection and venue presupposed that a sub- 

district electoral system would require sub-districting for administrative purposes as well. 

But the plaintiffs never alleged that jury pools and venue would be allocated by sub-districts 

as well. Plaintiffs only suggested that a sub-district electoral system was one alternative 

  

The court in Westwego reserved judgment on "whether these considerations could play a role 
in the process of crafting an appropriate remedy once a violation of section 2 has been found.” 872 

F.2d at 1211. 

In Westwego, minority voters challenged the at-large method of electing the city’s aldermen, 
who each were responsible for administering certain city departments. Westwego, 872 F.2d at 1210. 

20 

 



  

that could cure the vote dilution. Therefore, the appellants raised speculative concerns 

based on a hypothetical remedy never even proposed by the plaintiffs. Dr. Anthony 

Champagne, one of the defendants’ experts testified that "if you have county-wide 

administration, the problems of jury selection and case load would not be a problem." TR. 

at 4-167. Thus, Judge Bunton found that "administrative functions and jury selection could 

continue to be done on a countywide basis." RE at 77. 

Similarly, the appellants’ concern that the specialized court system would not be 

preserved under a sub-district electoral scheme presupposes features of a sub-district 

electoral plan never proposed or endorsed by the plaintiffs. 

Thus the linkage argument made by the State on appeal and the interests raised by 

the state before the court below are speculative and premature -- based not on the evidence 

in the record, but on the appellants’ exaggerated fears. To balance the state’s unfounded 

fears against the right of minority voters to a equal opportunity to elect their candidates 

of choice as judges, trivilizes and perverts the entire purpose of the Voting Right Act. 

Moreover, the interests actually advanced by the state "pales when compared to clear 

purpose of the Voting Rights Act." LULAC v. Clements, 914 F.2d at 670 (J. Johnson, 

dissenting). 

IV. The State’s Interests in the Use of an At-large System to Elect Trial Judges 

Cannot Alone Outweigh Proven Vote Dilution as a Matter of Law 

The State essentially argues that when vote dilution litigation involves judicial 

elections the State’s nondiscriminatory reasons for using the at-large election system 

21 

 



  

pretermits a finding of vote dilution, even when the electoral system "has some 

discriminatory effects." Texas’ Brief at 12. The State’s arguments are based on two 

assumptions: first, that the election of judges are so different from that of other elected 

offices that a new dilution test must be developed; and second, that legitimate state 

interests are an affirmative defense to proven vote dilution. Both presumptions are wrong. 

A. Judicial Elections Do Not Warrant a Different Standard of 
Review 

Defendants have advanced no practical reasons for discarding the traditional vote 

dilution inquiry in this case, nor have they cited any caselaw to support such a step. They 

have identified nothing unique about the method of electing judges which makes it 

incompatible with the standard method for assessing vote dilution claims.'"® Appellants 

state only that Texas’ interest must be given greater or controlling weight in this case 

because the method of selecting judges is at the heart of state authority.” This contention 

  

'8To the contrary, Texas "has decided to elect its judges and to compel judicial candidates to 
vie for popular support just as other political candidates do." Chisom, 115 L.Ed. 2d at 366-367. 
Nothing about the election of judges in Texas distinguishes them, fundamentally, from other elective 
offices. Primary and general elections for judges are held at the same time as elections for other 
state and local elective officials. Judicial candidates are bound by the same election rules, 

regulations and filing fees as non-judicial candidates. 
Most importantly, judicial elections in Texas are partisan elections, highly competitive in 

many cases. Judicial candidates often receive larger campaign contributions than candidates for 
legislative and other non-judicial offices. See Woodbury, "Is Texas Justice for Sale?," Time, January 

11, 1988 at 74. 

Yet Texas’ method of selecting judges is no more at the heart of state control than other 
election schemes that have been challenged and struck down as dilutive under a totality of 
circumstances analysis. See e.g., White v. Regester, 412 U.S. 755 (1973); Upham v. Seamon, 456 U.S. 
37 (1982). See also, LULAC v. Clements, 914 F.2d 620 (Sth Cir. 1990) revid, 115 L.Ed. 2d 379 
(1991), (J. Johnson, dissenting) ("the imposition of single-member districts in a judicial context 
treads no more upon a state’s electoral schemes than the now familiar court-ordered displacement 

22 

 



  

was expressly rejected by the Supreme Court in HLA.” 

HLA and Chisom, at their very core, express the Supreme Court’s repudiation of the 

argument that judicial elections are so different from elections for other offices that they 

are entitled to exemptions from the Voting Rights Act. Just as judicial elections are not 

exempt from the Act’s coverage, neither are they exempt from the standards applied to 

determining vote dilution claims under amended §2. Instead, "the test for determining the 

legality of . . . a [voting] practice . . . applies in judicial elections as well as in other 

elections." Chisom, 115 L.Ed. 2d at 360-361. 

  

of well entrenched at-large election schemes for legislative bodies."). 

1p a final attempt to breathe life into an argument laid to rest by the Supreme Court, the State 

claims that its traditional authority to select its judiciary constitutionally compels deference to the 

state’s interest in a vote dilution claim challenging the election of judges. State’s Briefat . As 

the Supreme Court held in Gregory v. Ashcroft, 501 U.S. ___, 115 L.Ed. 2d 410 (1991) however, the 

state’s authority to select its judiciary "is, of course, not without limit." Id. at 426. The 14th 

amendment, for example, "by its terms. . . contemplates interference with state authority." Id. at 429. 

Therefore, if Texas decided that only graduates of the University of Texas Law School could serve 

as state judges, or only property owners, or only white people, these qualifications would violate the 

Equal Protection guarantees of the 14th Amendment. The state’s authority to determine the 

qualifications of its judicial officers would not be insulated from a Equal Protection challenge. 

The State argues that Gregory requires this court to given deference to the state’s policies 

when evaluating vote dilution claims that may result in interference with a state’s traditional 

authority to select its judges. Gregory is not on all fours with LULAC. At issue in Gregory was a 

Missouri statute requiring the retirement of judges at age 70. Plaintiff judges argued that the 

Missouri law violated the federal Age Discrimination Employment Act and the Equal Protection 

Clause of the Fourteenth Amendment. 

The Supreme Court’s ultimate determination in Gregory that the Missouri statute in question 

violated neither the ADEA nor the Equal Protection Clause is distinguished from this case in two 

important ways. First, Gregory is not a claim based on the Voting Right Act. Second, in Gregory, 

the Supreme Court held that the language of the federal Age Discrimination statute does not 

evidence a clear intention by Congress to cover appointed judges under the definition of 

"employee." In Chisom and HLA, however, the Supreme Court expressly found that the language 

of Section 2 of the Voting Rights Act unequivocally includes "all elections” in its definition of 

"voting." 

 



  

The results test delineated by Congress in the Senate Report* is "a flexible, fact- 

intensive test." Gingles, 478 U.S. at 46. The "flexibility" of the test is deliberate. Congress 

contemplated §2 as the "major statutory prohibition of all voting rights discrimination. S. 

Rep. at 30 (emphasis added). As such, Congress created a test under §2 which could be 

applied to any "rule, practice, or procedure called into question," id. at 28, and which can 

apply "to different types of election problems," including the election of judges. House 

Rep. at 30. The fact-specific nature of the evaluation necessarily makes the test applicable 

to all vote dilution claims brought under the Act. Accordingly, the test has been used to 

assess claims arising under §2 for the election of justice court judges and constables, Ewing 

v. Monroe County, Miss, 740 F.Supp. 417 (N.D.Miss.1990); park board trustees, McNeil v. 

Springfield Park District, 666 F.Supp. 1208 (C.D. Ill. 1987) aff’d 851 F.2d 937 (7th Cir. 

1988) and trial court judges, Martin v. Allain, 658 F.Supp. 1183 (S.D. Miss. 1987). 

The State’s asserted interest in "linking" the jurisdiction and electoral base for judges 

does not give rise to a different analytic test for determining vote dilution. As the Supreme 

Court explained: 

the Act encompasses the election of executive officers and trial 
judges whose responsibilities are exercised independently in an 
area coextensive with the districts from which they are elected. 
If a state decides to elect its trial judges, as Texas did in 1861, 
those elections must be conducted in compliance with the 
Voting Rights Act. 

HLA, 115 L.Ed. 2d at 386. The Supreme Court in HLA indicated precisely the role the 

  

*'The Senate Report has been recognized as "the authoritative source" for Congress’ intent in 
amending the Act in 1982. Gingles, 478 U.S. at 43 n.7. 

24 

 



  

state’s interest plays in the dilution inquiry: the state’s interest in maintaining at-large, 

district-wide election for judges "is merely one factor to be considered in evaluating the 

‘totality of circumstances.” HLA, 115 L.Ed. 2d at 387 (emphasis added). 

The Supreme Court’s directive that the state’s interest is only one factor in the 

dilution analysis in and of itself answers the question whether the state’s nondiscriminatory 

policy can be dispositive of a challenge to the method of electing judges. Plainly, it cannot. 

But in addition to the Supreme Court’s clear statement, Congress’ directions and this 

court's previous practice in reviewing vote dilution claims also confirm that the state’s 

interests cannot constitute an affirmative defense to vote dilution. 

B. Congress Expressly Rejected Elevating the State's 
Interest to a Threshold Liability Issue When It Amended the 

Act 

The primary purpose of Congress’ amendments to §2 was to eliminate the need to 

prove intent in order to prevail in a vote dilution claims. In setting out the "results" test, 

Congress repudiated any analysis that seeks to flush out or divine the "intent" or "motive" 

of the jurisdiction. Instead, Congress ensured that plaintiffs may prove dilution without 

showing discriminatory purpose of any kind.” S. Rep. at 28. By removing any "intent" 

question from §2, Congress deliberately shifted the focus of the inquiry away from the 

reasons for the state’s use of a challenged electoral practice. The appellants now attempt 

  

2Because Congress so assidiously insisted that the results test would not attempt to flush out 
hidden discriminatory intent, the disparate treatment construct in Texas Dept. of Community Affairs 

v. Burdine, 450 U.S. 248 (1981) is irrelevant to vote dilution cases brought under §2. The State 

concedes the irrelevance of Burdine. State's Brief at 23. 

25 

 



to shift the focus of the inquiry back to the legitimacy of the state’s policy. This court may 

not "supplant the stated aims of Congress with its own [or the State’s] policy preferences." 

LULAC v. Clements, 914 F.2d at 654 (J. Johnson, dissenting). 

A vote dilution inquiry which turns on the the legitimacy of the state’s policy in 

using the challenged election scheme supplants Congress’ will by re-importing the intent 

standard into the calculus of dilution. Minority voters would only prevail in cases where 

they could prove that the state’s interests were illegitimate, tenuous -- or intentionally 

discriminatory. The very essence of amended §2 removes this onerous burden from 

plaintiffs, and focuses the court’s determination on the actual impact of the challenged 

electoral structure on plaintiffs’ electoral opportunities in the local jurisdiction. S. Rep. at 

, Gingles, 478 U.S. at 44. 

The standard advanced by the appellants with regard to the state’s interests is not 

new. It is the same analytical standard advanced by opponents of the results test, and 

ultimately rejected by Congress in 1982. Members of Congress specifically considered and 

expressly rejected the notion that defendants may assert the legitimacy of their electoral 

schemes to rebut the plaintiff's proof of vote dilution. See Additional Views of Senator 

Robert Dole,” S. Rep. at 195 (rejecting suggestion that "defendants be permitted to rebut 

a showing of discriminatory results by a showing of some nondiscriminatory purpose behind 

the challenged voting practice or structure"). See also S. Rep. at 29 n.113 ("the failure of 

plaintiff to establish any particular factor, is not rebuttal evidence of non-dilution™)(emphasis 

  

BSenator Dole is recognized as the architect of §2(b) of the amended Act. See Boyd & 

Markman, "the 1982 Amendments to the Voting Rights Act: A Legislative History," 40 Wash. and 

Lee L. Rev. 1347, 1414-1415 (1983). 

26  



  

added).* 

The State’s argument is particularly untenable, however, because Congress 

specifically decided to assign limited probative value to the state’s interest in the vote 

dilution calculus. Congress, when it set out the standards for the "results" test, actually 

demoted the state’s interests from a primary factor in vote dilution analysis, see Zimmer v. 

McKeithen,” 485 F.2d 1297 (5th Cir. 1973), to an optional part of the plaintiffs’ case under 

the "results" test. Congress identified 7 other factors more probative in a §2 vote dilution 

analysis.®® S. Rep. at 28-29. The state's interest, or the tenuousness of the state’s policy 

  

“Moreover, permitting the state’s interest to constitute conclusive rebuttal of the plaintiff's 

entire vote dilution showing would run afoul of Congress’ emphasis on a multi-factored 

comprehensive inquiry into the local political processes. In Congress’ view, vote dilution turns on 

no one factor. House Report No. 97-227, 97th Cong., 1st Sess. (1982) at 30 ("an aggregate of factors 

should be considered” in assessing vote dilution claims)(hereinafter "House Rep. at ___"). Thus, 

"even a consistently applied practice premised on a racially neutral policy would not negate a 

plaintiff's showing through other factors that the challenged practice denies minorities fair access to 

the process.” S. Rep. at 29 n. 117 (emphasis added). 

“The standards Congress developed for the "totality of the circumstances” test of amended §2 

were based in great part on the guidance offered by and other vote dilution cases decided in this 

court. According to the court in Zimmer, 

where a minority can demonstrate a lack of access to the process of 
slating candidates, the unresponsiveness of legislators to their 
particualrized interests, a tenuous state policy underlying the preference 
for multi-member or at-large districting, or that the existence of past 
discrimination in general precludes the etfective participation in the 
election system, a strong case [of dilution] is made. 

Zimmer, 485 F.2d at 1305 (emphasis added) (internal footnotes omitted). Although the state's 
interest in using an at-large election feature was one of several probative factors it identified, the 
court in Zimmer also emphasized that only the contluence of many factors could prove or disprove 
the presence of a dilutive electoral scheme. 485 F.2d at 1305 ("the fact of dilution is established 
upon proof of the existence of an aggregate of these tactors.") 

**The Supreme Court has found that, 

"under [the] ‘functional’ view of the political process mandated by §2, 

27 

 



  

in maintaining the challenged electoral features, is an optional factor that plaintiffs may 

attempt to prove in some cases.”’ Compare Zimmer, 485 F.2d at 1305, with S. Rep. at 28- 

29. Congress’ deliberate removal of the state’s interests from the core dilution inquiry 

reflects its understanding that in a "results-oriented" inquiry, even when the state has a 

strong, legitimate interest in the challenged election structure, dilution may exist. 

The state’s interest is relevant only to the extent that it is tenuous. See S. Rep. at 

29. In instances where the district court finds that the state’s interests are not tenuous, 

then plaintiffs have simply failed to prove one element in their case. If plaintiffs do prove 

other relevant Senate Report factors, the district court must decide whether the plaintiffs 

have shown, under the totality of circumstances, that the challenged system results in vote 

dilution. This was the finding of the district judge in LULAC. 

The speculative nature of many of the appellants’ concerns in this case, see supra 

at ., highlights the problems inherent in focusing the initial dilution inquiry on the state’s 

interests. Assessing a vote dilution claim solely in the context of how the state’s policies 

might by undermined by a change in the electoral system -- a standard advanced by the 

appellants -- forces the court to engage in a hypothetical analysis of issues that are simply 

not ripe for judicial assessment. 

  

the most important Senate Report factors bearing on §2 challenges 
to multimember districts are the ‘extent to which minority group 
members have been elected to public office in the jurisidiction” and 
the ‘extent to which voting in the elections of the state or political 
subdivision is racially polarized.™ 

Gingles, 478 U.S. at 48 n.15 quoting S.Rep. at 28-29. 

“Like unresponsiveness, tenuousness "is not an essential part of plaintiff's case . . ." S. Rep. 

at 29 n. 116. 

28 

 



  

At the remedy phase of the litigation, the State’s interests are directly relevant, 

particularly because the State will have the first opportunity to propose to the court a 

remedy which accomodates its interests. See McDaniel v. Sanchez, 452 U.S. 130, 150 n.30 

(1981). Indeed, so long as it completely cures the proven violation, the federal court must 

defer the to the State’s proferred plan. White v. Weiser, 412 U.S. 783, 797 (1973). At that 

point, the court may determine how the proven dilution can be remedied, and the state’s 

legitimate interests accomodated where possible. 

If, following the adoption of a remedy by the district court, the State feels that its 

legitimate interests have not been sufficiently accomodated, then it is free to appeal the 

district court’s remedial order to this court. 

C, This Court Has Traditionally Viewed the State’s Interests as 
Only One Factor in the Vote Dilution Inquiry 

Traditionally, this court has refrained from giving the state’s interests "talismanic 

power." Kirksey v. Bd. of Sup’rs Hinds County, Miss., 554 F.2d 139, 151 (5th Cir. 1977). 

Every court in this Circuit that reviewed racial vote dilution challenges to at-large 

election schemes after Zimmer used the framework of the "Zimmer factors" as the 

foundation for its review. See e.g., Cross v. Baxter, 604 F.2d 875 (5th Cir. 1979); McIntosh 

Cty NAACP v. City of Darien, 605 F.2d 753 (Sth Cir. 1979); Hendrix v. Joseph, 559 F.2d 1265 

(5th Cir. 1977); Parnell v. Rapides Parish School Board, 563 F.2d 180 (5th Cir. 1977); Nevett 

v. Sides, 533 F.2d 1361 (5th Cir. 1976). In no case did the court’s ultimate determination 

turn on the sufficiency or legitimacy of the state policy in using the at-large election 

 



  

feature. Thus, even prior to the amendment of §2 the state’s interest was not afforded 

more weight than other factors. 

In all cases challenging at-large elections, the jurisdictional and electoral base of the 

elective office at issue is co-terminous.”® In many of the cases decided in this court, the 

use of the at-large feature was longstanding, enacted for racially neutral reasons, and served 

the state’s legitimate interest in having its elected officials accountable to voters in the 

entire jurisdiction.” That determination alone, however, could not justify denial of relief 

to plaintiffs. See e.g, Kirksey v. Bd of Sup’rs of Hinds Cty., Miss, 554 F.2d 139, 151 (1977); 

Robinson v. Commissioners Court, Anderson County, 505 F.2d 674, 680 (5th Cir. 1974) 

(refusing to uphold dilutive election schemes simply because they "satisfy . . . legitimate 

governmental goals"). In fact, the state’s interests, even when "assigned considerable weight 

in the calculus of dilution" at the remedy stage could not overcome minority voters’ right 

to participate equally in the electoral process.*® Wallace v. House, 515 

  

®The linkage-accountability argument is, in fact, more appropriate in the context of non-judicial 
elected officials, since judges are bound by an oath of impartiality no matter how they are elected. 

Minority voters challenged the at-large election of a broad array of elective offices including, 
county commissions and school boards, McGill v. Gadsen County Commission, 535 F.2d 277 {3th 

Cir. 1976), the democratic executive committee, Corder v. Kirksey, 585 F.2d 708 (5th Cir. 1978), and 
police juries, Bradas v. Rapides Parish Policy Jury, 508 F.2d 1109 (5th Cir. 1975); Zimmer, 485 F.2d 

at 1306 n.26 (primary function of policy jury "is the drainage of rural farmlands, maintenance of 
rural roads, and the overseeing of a prison farm"). The nature of the elective office challenged did 
not change the weight afforded to the state's interests. 

Indeed, because "multi-member districts minimize minority representation even at the lowest 
political levels, Wallace, 515 F.2d at 629 (emphasis added), this court specifically cautioned against 
accomodating the state’s interests "at the expense of effective black minority participation in 
democracy” even in adopting an appropriate remedy for proven dilution. Kirksey v. Bd. of Sup’rs 
Hinds County, Miss. 554 F.2d at 151. Therefore, even in instances in which this court upheld the 
adoption of a mixed at-large single-member district remedial plan, the jurisdiction was compelled 
at the remedy phase to come forward and show a "singular combination of unique factors" or 
unusual circumstances supporting retention of any at-large feature as part of the remedy. Corder 

30 

 



  

F.2d 619, 634 (5th Cir. 1975). The standards advanced by the appellants are at odds with 

the 20 year history of vote dilution jurisprudence developed in this court. 

In summary, whether the state’s interests outweighs minority voters’ interest in 

participating equally in a non-dilutive election scheme is not a matter for the district court 

or this court to decide. That determination, as explained above, has already been made by 

Congress and upheld by the Supreme Court. This court is compelled to follow Congress’ 

judgment as to the proper role of the state’s interests in a vote dilution determination. 

V. The District Court’s Ultimate Finding of Dilution Should Be Affirmed 

A. The District Court Properly Found Racially Polarized Voting 

The district court found that voting in Harris County judicial elections is racially 

polarized. That finding was based on the testimony and analyses performed by the 

plaintiffs’ expert, Dr. Engstrom, who analyzed the 17 contested district judge elections 

involving African American and white candidates in Harris County since 1980.” 

Although African American voters consistently gave more than 97% of their vote 

to their preferred African American candidate in the 17 races analyzed,” only two African 

  

v. Kirksey, 585 F.2d at 714; Paige v. Gray, 538 F.2d 1108, 1112 (5th Cir. 1976) (ordering remand to 
district court for further exploration of whether retention of at-large election system for mayor was 

required). 

Dr. Engstrom appropriately focused his analysis on races involving African American and 
white candidates. See e.g., Westwego, 872 F.2d at 1208 n.7; Campos v. City of Baytown, 840 F.2d 
1240 (5th Cir. 1988) cert. denied, 109 S.Ct. 3213 (1989). Obviously, if African American voters are 
able to elect white candidates of choice, but not African American candidates of choice, the court 

may infer that "racial politics" are present in the jurisdiction. 

“African American voters gave their vote to the African American candidate in 16 of the 17 
races analyzed. In one election, the African American candidate Mamie Mae Proctor received less 

31 

 



  

American candidates were elected. 

The analyses performed by Dr. Engstrom on the relevant elections in LULAC, 

bivariate regression analysis and homogenous precinct analysis®, are the same analyses 

performed on the North Carolina elections in Thornburg v. Gingles. Both these analytical 

methods correlate the race of the voters with voters’ choice of candidate. In essence, the 

analyses determine whether there is a positive correlation between race of the voter and 

the way they vote. When the correlation is positive, and Blacks and whites vote differently, 

then voting is "racially polarized." Gingles, 478 U.S. at 53 n.21. 

Appellants argue that a multi-variate analysis which factors in the role of political 

party and straight ticket voting is required to determine the existence of racially polarized 

voting.” They further argue that voting in Harris County is not racially polarized, but is 

controlled by partisan voting patterns or other random factors like endorsement by the 

Houston Chronicle or failure to win the Houston Bar Poll. The first argument is wrong 

as a matter of law, and the second is wrong as a matter of fact. 

  

than 5% of the vote of African American voters. Ms. Protor ran as a Republican against a white 
Democratic incumbent. Appellants argue that the lack of African American voting support for Ms. 
Proctor is evidence that partisan voting patterns controls judicial elections in Harris County. The 
district court correctly concluded, however, that the Proctor election merely shows that Ms. Proctor 
"was not the preferred candidate of Black voters in Harris County." RE at 25. 

*The Supreme Court has found that these methods of election evaluation, "are standard in the 
literature for the analysis of racially polarized voting." Gingles, 478 U.S. at 53 n.20. 

*In fact, the appellants did not perform an actual multi-variate analysis, but merely offered 
different excuses to explain the loss of African American candidates in different elections. See n. 

39. 

32 

 



  

1 Minority Voters Need Not Prove that Racially Polarized 
Voting is Caused by "Racist" Voting 

First, neither bivariate regression analysis nor homogenous precinct analysis purport 

to show why voting is racially polarized.” Yet the Supreme Court has found the use of 

these analyses sufficient for §2 purposes, because the cause of racially polarized voting is 

irrelevant to the "results" test inquiry.” Congress decided that minority voters "may 

establish discriminatory results without proving any kind of discriminatory purpose.” S. Rep. 

at 28 (emphasis added). Thus, minority voters need not prove that Blacks and whites vote 

differently because white voters are "racist." To do so would re-import the "intent" inquiry 

that Congress specifically removed when it amended §2. 

The very essence of the "results" test obviates the relevance of a causation analysis. 

Under the results test, the court must "assess the impact of the challenged structure . . . 

rather than . . . the motivations which lay behind" that impact. S. Rep. 27 (emphasis 

added). Thus, the Supreme Court in Gingles affirmed the three-judge court’s finding of 

racially polarized voting, despite the defendants’ arguments in the lower court that experts 

must "factor in all of the circumstances that might influence particular votes in a particular 

election." Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C. 1984). In accordance with 

  

*Indeed, a causation inquiry "flies in the face of the general use, in litigation and in the general 

social science literature, of correlation analysis as the standard method for determining whether 

vote dilution in the legal . . . sense exists." Gingles v. Edmisten, 590 F.Supp 345 (E.D.N.C. 1984), 

368 n.32. 

In their Jurisdictional Statement to the Supreme Court, in tact, the appellants in Gingles 
specifically argued, as do the defendants in LULAC that other factors besides race best explained 
the outcome of elections in the North Carolina legislative districts at issue. See, Jurisdictional 

Statement of Appellants at 17-18, Thornburg v. Gingles, No. 83-1968 (1985). 

33 

 



  

Gingles, the district court in LULAC properly rejected the defendants’ argument that "there 

can be no ‘functional view of the political process’ without taking into account political 

party as the principal factor affecting such races." RE at 89. 

Requiring a "causation" analysis in the determination of racially polarized voting 

would also lead to the perils of the intent analysis that Congress specifically sought to 

avoid. Congress eliminated the intent inquiry from §2, in principal part, because an inquiry 

into the motives of legislators "is unnecessarily divisive because it involves charges of racism 

on the part of individual officials or entire communities." S. Rep. at 36 (emphasis added); 

Gingles, 478 U.S. at 44. If plaintiffs had to prove that white voters failed to support 

minority candidates because of their race, similar charges would be a necessary part of the 

plaintiffs’ burden. It is difficult to imagine a more potentially divisive inquiry than 

attempting to discern the motives of white voters in Harris County.” The use of standard 

statistical analytical methods to determine whether Blacks and whites vote differently, 

avoids the hazards of a "causation" inquiry. 

Moreover, this court has expressly held that an analysis of racially polarized voting 

based on the results of bivariate regression, homogenous precinct analysis and supporting 

lay testimony”, rather than "causation-oriented" factors such as political party, is an 

appropriate method of determining the existence of legally significant racial bloc voting. 

  

37Plaintiff’s would be prevented from meeting their burden, in fact, because "[t]he motivation 

of . . . individual voters may not be subjected to . . . searching judicial inquiry." Kirksey v. City of 

Jackson, Miss., 663 F.2d 659, 662 (5th Cir. 1981) rehearing and rehearing en banc denied, 669 F.2d 

316 (5th Cir. 1982). 

®¥n reaching the conclusion that voting is racially polarized in Harris County, the district court 
also credited the testimony of Sheila Jackson Lee, an African American judicial candidate and the 
deposition testimony of four other African American judicial candidates. RE at 30. 

34 

 



  

Overton v. City of Austin, 871 F.2d 529, 538 (5th Cir. 1989). The district court in LULAC, 

therefore, correctly concluded that party affiliation is "irrelevant under controlling law." RE 

at 31. 

2 Partisan Voting Does Not, In Fact, Explain the Outcome of 
Judicial Elections in Harris County 

As a matter of fact, the appellants’ claim that partisan voting patterns explain the 

disparate success of African American and white judicial candidates in Harris County fails. 

The appellants argue that because African American voters are overwhelmingly 

Democratic, the loss of their candidates of choice can best be explained by partisan voting 

patterns. According to the appellants, when Republicans sweep the elections in Harris 

County, then Democrats and thus the candidates of choice of African American voters lose. 

When Democrats sweep the election, then the candidates of choice of African American 

voters win. The appellants ignore one critically important fact: their claim is false. 

Although 52% of white Democratic judicial candidates won in contested district 

judge general elections between 1980 and 1988, only 12.5% of African American 

Democratic judicial candidates enjoyed similar success. TR. at 3-134-135. Thus, white 

Deomcratic candidates were more than 4 times more likely than African American 

Democratic candidates to win a district judge election in Harris County. The huge disparity 

between the success rate of white and African American Democratic judicial candidates 

demonstrates, using the defendants’ own test, that partisan affiliation does not explain the 

outcome of judicial elections in Harris County. 

33 

 



  

In one particularly revealing example of the actual irrelevance of party affilation to 

the dilution claim in Harris County, in the 1986 general election every white Democratic 

incumbent district judge was re-elected, while every African American Democratic 

incumbent judge lost.* The district court’s factual finding that voting is racially polarized 

in Harris County is not, therefore, is not clearly erroneous. 

B. The District Court Properly Found the Presence of Other 

Gingles Factors 

The Supreme Court in Thornburg v. Gingles identified three necessary elements of 

plaintiffs’ proof to establish vote dilution: (1) minority voters must prove that they are 

politically cohesive; (2) plaintiffs must prove that voting is racially polarized; and (3) a bloc 

_ voting majority must usually be able to defeat candidates supported by the minority 

community. Gingles, 478 U.S. at 48-49. "Unless there is a conjunction of [these] 

circumstances, the use of multimember districts generally will not impede the ability of 

minority voters to elect representatives of their choice." Id. As discussed above, the HLA 

proved the second and third Gingles preconditions through statistical analysis and 

supporting lay testimony. The district court found the HLA’s evidence with regard to the 

  

The three African American incumbents were originally appointed. Appellant-intervenor 
Wood argues that the three African American candidates lost because they did not receive the 
endorsement of the Gay Political Caucus. Judge Wood offered a different list of excuses to explain 
the loss of African American candidates for nearly every election analyzed. Appellants "made no 
attempt that we are aware of -- statistical or otherwise -- to demonstrate that when these factors 
were properly organized and accounted for there was no significant disparity between" the success 
rates of white and African Americans. Bazemore v. Friday, 478 U.S. 385, 404 (1986). The mere 
articulation of these unscientifically applied factors is entitled to little probative value. Id. In any 
case, as argued above, causation is irrelevant to the analysis of racially polarized voting under the 

"results" test of §2. 

 



  

existence of racially polarized voting and a white bloc vote that defeats the choice of the 

minority community, was "legally competent and highly probative" of dilution. RE at 87. 

In addition, the HLA proved the remaining Gingles precondition. African Americans 

constitute nearly 20% of the total population of Harris County, and 18% of the voting age 

population. Plaintiff-intervenors’ expert demographer Jerry Wilson demonstrated through 

illustrative maps that the African American population in Harris County is concentrated 

in an hour-glass figure extending from the north to the south of central Harris County. See 

RE at 15. Using the concentrations of African American population, Mr. Wilson drew 

illustrative sub-districts which showed that African Americans in Harris County are 

sufficiently numerous and geographically compact to constitute a majority in 13 fairly-drawn 

single-member districts.  Plaintiff-intervenors Exhibit P-I-H 2;2a. This fact was 

uncontroverted at trial. 

Accordingly, the district court found that plaintiffs satisfied the three-pronged 

Gingles test in Harris County. 

c The District Court Properly Found the Presence of Senate 
Report Factors 

As the district court noted, "the final determination [of vote dilution] must be made 

by an evaluation of the ‘totality of circumstances,’ including the factors listed in the Senate 

Report." RE at 88. Congress has cautioned, however, that "there is no requirement that 

any particular number of factors be proved, or that a majority of them point one way or 

the other." S. Rep. at 29; Gingles, 478 U.S. at 45. 

37 

 



The Supreme Court identified the two most important Senate Factors in Gingles: 

"the extent to which minority groups members have been elected . . . and the extent to 

which voting in the elections of the . . . political subdivision is racially polarized." Gingles, 

478 U.S. at 48 n.15. Other Senate Report factors "if present . . . are supportive of, but not 

essential to, a minority voters’ claim." Jd (emphasis in original). 

In addition to finding that voting is racially polarized in Harris County, the district 

court made specific findings relating to the lack of African American electoral success in 

district judge elections. In particular, Judge Bunton noted that African American 

candidates won in only two of 17 contested district judge general elections between 1980 

and 1988 in Harris County. RE at 73. The court below appropriately repudiated the 

defendants’ argument that the dearth of African American judges in Harris County is 

explained by a small pool of African American attorneys qualified to serve as district 

judges. First, this is not an employment discrimination case in which African American 

lawyers charge that they have been prevented from being elected as judges. The African 

American plaintiffs in Harris County, including the members of the HLA participate in this 

case as registered voters in the County who have denied the opportunity to elect their 

judicial candidates of choice. Moroever, as Judge Bunton recognized, "even if there is 

some relationship between the low number of minority judges and the number of eligible 

minority lawyers, that fact does not explain why well qualified eligible minority lawyers lose 

judicial elections." RE at 75. In Harris County, African American lawyers ran in 17 

elections over an 8 year period. Clearly, enough minority lawyers are available to seek  



  

judicial office in the county.” Since "the pool of eligible [minority] lawyers is small, due 

in part, to historical discrimination," RE at 75; see also, Sweatt v. Painter, 339 U.S. 629 

(1950), it would be particularly ironic to deny minority voters claims in the case at hand 

based on that fact. 

The district court found proof of additional Senate Report factors which support the 

plaintiffs’ claims. First, the district court took judicial notice of Texas’ history of 

discrimination against African Americans and Mexican Americans throughout the state and 

in the challenged counties. RE at 69-71. The court specifically noted that Texas’ history 

of discrimination touched upon minorities’ "access to and participation in the democratic 

system governing [Texas] and their socio-economic status." * RE at 70. See also, 

Plaintiff's Exhibit H-01-H-08. 

Several factors which enhance the opportunity for discrimination in the election of 

judges are also present in Harris County. First, the unusually large geographic size of 

Harris County is an enhancing factor. Harris County is the largest county in Texas by 

population and covers nearly 1800 square miles. Several witnesses testified that the size 

of Harris County adversely affects the ability of African American candidates to win. Chief 

Justice Thomas Phillips, in particular, noted the difficulty minority candidates face in raising 

enough money to mount a formidable campaign in large urban areas. TR. at 4-34. 

Second, the HLA specifically challenged "the exclusionary at-large numbered place 

  

“In fact the poll conducted by appellants indicated that there are at least S00 qualified African 

American attorneys in Harris County. See Detendant’s Exhibit, D-4. 

“"Plaintiffs need not prove any further causal nexus between their disparate socio-economic 
status and the depressed level of political participation." S. Rep. at 29 n.114. 

39 

 



system" for electing district judges in Harris County. See, HLA Complaint in Intervention 

at 1 25. The district court found that the numbered post requirement is also an 

"enhancing" factor, since head-to-head contests prevent minority voters from "single-shot" 

voting. * 

Although it found that the countywide election method is not "maintained on a 

tenuous basis as a pretext for discrimination,” the district court was "not persuaded that 

the reasons offered for its continuation are compelling." RE at 77. As discussed at the 

outset of this brief, that finding is supported by the factual record and is not clearly 

erroneous. 

  

“"Single-shot voting enables a minority group to win some at-large seats if it concentrates its 
vote behind a limited number of candidates and it the vote ot the majority is divided among a 
number of candidates." Gingles, 478 U.S. at 38 n.5. Alternative remedies, such as limited and 

cumulative voting provide similar opportunities for minority voters to vote for their candidates of 
choice with greater intensity. 

40  



  

VI. This Case Should Be Remanded to the District Court for 
Implementation of a Remedy 

No permanent remedy was ever ordered in this case. The remedial plan ordered by 

the district in December 1989, was for the 1990 elections only. 

This court should remand the case to the district court to explore the remedies 

available to cure the dilutive nature of the current at-large method of electing judges in the 

target counties. Many, indeed all of the State’s arguments regarding are more properly 

explored in a remedy proceeding. At a full remedial hearing, the State will have the 

opportunity to offer its own remedial plan, and all of the relevant issues related to the 

appropriateness of a sub-district or other remedy can be full ventilated and weighed by the 

fact finder. 

CONCLUSION 

For the reasons stated above, this court should affirm the liability finding of 

the district court and remand the case to that court for a full remedial hearing. 

41 

 



  

PAMELA C. KARLAN 

University of Virginia 
School of Law 

Charlottesville, VA 22901 

(804) 924-7810 

C. LANI GUINIER 
University of Pennsylvania 

School of Law 
3400 Chestnut Street 
Philadelphia, PA 19104 
(215) 898-7032 

42 

    VONNE CHAMBERS 

SHERRILYN A. IFILL 

99 Hudson Street, 

16th Floor 

New York, N.Y. 10013 

GABRIELLE K. McDONALD 

Law Office of Arthur 

L. Walker, Jr. 

7800 N. Mopac 
Suite 215 

Austin, TX 78750 

512-346-6801 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that on this 4th day of October, 1991 a true 

and correct copy of Plaintiffs-Appellees' Brief was mailed to 

counsel of record in this case by first class United States mail, 

postage pre-paid, as follows: 

William L. Garrett 
Brenda Hall Thompson 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, TX 75225 

Rolando L. Rios 
Southwest Voter Registration 

and Education Project 
201 North St. Mary's Street 

Suite 521 
San Antonio, TX 78205 

Susan Finkelstein 
405 North St. Mary's Street 
Suite 910 

San Antonio, TX 78205 

Edward B. Cloutman, III 
Cloutman, Albright & Bower 
3301 Elm Street 
Dallas, TX 75226-1637 

J. Eugene Clements 
John E. O'Neill 
Evelyn V. Keyes 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, TX 7002-2730 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 77002 

John L. Hill, Jr. 
Liddell, Sapp, Zivley, 

Hill & LaBoon 
3300 Texas Commerce Tower 

Houston, TX 77002 

David R. Richards 
Special Counsel 
600 West 7th Street 
Austin, 7X 78701 

Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, TX 75201 

Gabrielle K. McDonald 
Law Office of Arthur 

L. Walker, Jr. 
7800 N. Mopac 

Suite 215 

Austin, TX 78750 

 



  

Dan Morales 
Will Pryor 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General's Office 
Price Daniel Sr. 

Office Building 
209 W. 14th Street 
Austin, TX 78701-2548 

Seagal V. Wheatley 
Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg, 

Kelleher & Wheatley, Inc. 
711 Navarro, Sixth Floor 

San Antonio, TX 78205 

E. Brice Cunningham 
777 South R.L. Thornton Freeway 

Suite 121 
Dallas, TX 75203 

Darrell Smith 
10999 Interstate Highway 10 

Suite 905 
San Antonio, TX 78230 

Walter L. Irvin 
5787 South Hampton Road 
Suite 210, Lock Box 122 
Dallas, TX 75232-2255 

Ken Oden 
Travis County Attorney 
P.O. Box 1748 
Austin, TX 78767 

Tom Rugg 
Jefferson County 

Courthouse 
Beaumont, TX 77701 

John R. Dunne 
Jessica Dunsay Silver, Esq. 
Mark Gross, Esq. 
c/o Hon. Richard Thornburgh 
Attorney General of the 

United States 
United States Department 

of Justice 
Main Justice Building 
10th & Pennsylvania 

Avenue, N.W. 
Washington, D.C. 20530 

Yoo A. HLL 
  

4; Sherraly A. bd 
[any for Plaintiffs-Appellees