Harris County District Judge Wood's Seconded Amended Original Answer and Counterclaim to Plaintiffs LULAC, et al.

    PorRTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

  

700 LOUISIANA, SUITE 3500 

HOUSTON, TEXAS 77002-2730 

ATTORNEYS   
A PARTNERSHIP INCLUDING 

PROFESSIONAL CORPORATIONS 
TELEPHONE (713) 226-0600 

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 

EVELYN V. KEYES TELEX 775-348 

(713) 226-0611 

May 24, 1989 

VIA FEDERAL EXPRESS 
  

Clexk, U.S. District Court 
200 EE. Wall St., Suite 316 

Midland, Texas 79702 

Re: No. M0O88-CA-154;: League of United Latin American 

Citizens (LULAC), et al, v, James Mattox, Attorney 
General of Texas, et al.; In the United States District 
Court for the Western District of Texas, Midland-Odessa 
Division 

Dear Sir: 

Enclosed for filing in the above-referenced case is Harris 
County District Judge Sharolyn Wood's Second Amended Original 
Answer and Counterclaim to Plaintiffs LULAC, et al. 

Please verify filing by placing your stamp in the margin of 
the enclosed extra copy and return same to me in the enclosed 
self-addressed stamped envelope. 

By copy of this letter, all counsel are being served a copy 
of this filing by first class United States mall, postage 
prepaid. 

Sincerely yours, 

bvclin Fes 
Evelyn V. Keyes 

EVK/cdf 
enclosures 

 



    

PorTER & crinrs » 

Clerk, U.S. District Court 
May 24, 1989 
Page -2- 

CC: Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 

Attorneys at Law 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 KN. St. Mary's, Suite 221 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N, St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 

99 Hudson Street, 16th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Ms. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. O. Box 12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 
Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway, Suite 121 
Dallas, Texas 75203 

 



    

PorTER & cr xs 

Clerk, U.S. District Court 
lay 24, 1989 
Page -3- 

CC: Mr. Ken Oden 

Travis County Attorney 
P. OC. Box 1743 

Austin, Texas 78767 

Mr. David R. Richards 
Special Counsel 
600 W. 7th Street 

Austin, Texas 78701 

Mr. Mark H. Dettman 

Attorney at Law 

P. O."Box 2559 

Midland, Texas 79702 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

 



  

THE UNITED STATES DISTRICT COURT 

THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs, 

S 
S 
§ 
§ 
N 

V. § NO. MO-88-CA-154 
§ 

JIM MATTOX, Attorney General § 
of the State of Texas, et al., § 

S 
S Defendants. 

HARRIS COUNTY DISTRICT JUDGE SHAROLYN: 

WOOD'S SECOND AMENDED ORIGINAL ANSWER AND 

COUNTERCLAIM TO PLAINTIFFS LULAC, ET AL. 

  

  

  

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW Sharoclyn Wood, Judge of the 127th Judicial 

District Court of Harris County, Texas ("Wood") and, subject to 

her Motion to Dismiss and Motion for More Definite Statement, 

files this her Second Amended Original Answer and Counterclaim in 

response to the Plaintiffs' Second Amended Complaint in the 

above-referenced cause of action as follows: 

1. 

BACKGROUND   

1.1. This is a suit originally brought by the League of 

Latin American Citizens ("LULAC") and certain individual Mexican- 

 



  

American and black citizens of Texas seeking to declare illegal 

and/or unconstitutional and null and void in certain targeted 

counties the State of Texas' constitutionally and legislatively 

mandated system of electing state district judges at large. 

1.2. The Texas Constitution Article V, § 7 provides in 

relevant part that the state shall be divided into judicial 

districts with each district having one or more judges as 

provided by law or by the Texas Constitution. The section also 

provides that each district judge shall be elected by the 

qualified voters at a general election and shall be a citizen of 

the state and shall have been a practicing lawyer in the state or 

a judge of a state court for four years and shall have been a 

resident of the district for two years and shall agree to reside 

in the district during his term of a 

1.3. In 1985, the Texas Constitution was amended bv the 

addition of a new section, ‘article V, § 7a, which provides for 

the reapportionment of Texas judicial election districts. That 

section provides that no judicial district may be established 

smaller than an entire county except by majority vote of the 

voters at a general election. Tex, Const. of "1876, art.’  V, 

§ 7a(i). 

1.4. Pursuant to article V, the Texas legislature has 

enacted a comprehensive body of statutes governing the formation 

and function of judicial districts. The policy underlying the 

establishment of judicial districts is expressly stated in those 

statutes, to wit: 

 



  

It is the policy of the state that the administra- 
tion of justice shall be prompt and efficient and that, 
for this purpose, the judicial districts of the state 
shall be reapportioned as provided by this subchapter 
S30 that ‘the district’ courts of various * judicial 
districts have judicial burdens that are as nearly 
equal as possible. 

Tex, Gov't Code § 24.945. 

1.5. To promote the ends of fairness and efficiency, all 

the district courts in a county with more than one judicial 

district are accorded concurrent jurisdiction and courts in those 

districts are permitted to equalize their dockets. Tex. Gov't 

Code §§5§: 24.950, 24.951. 

1.6. In addition, the Texas Government Code sets out rules 

i/ and conditions for the reapportionment of judicial districts.= 

  

3/ The Tex. Gov't Code provides, 

(2) The reapportionment of the judicial districts of the 
state by the board is subject to the rules and conditions 
provided by Subsections (b)-(d). 

(b) Reapportionment of the judicial districts shall be 
made on a determination of fact by the board that the reappor- 
tionment will best promote the efficiency and promptness of the 
administration of justice in the state by equalizing as nearly 
as possible the judicial burdens of the district courts of the 
various judicial districts. In determining the reapportiorment 
that best promotes the efficiency and promptness of the 
administration of justice, the board shall consider: 

(1) the numbers and types of cases filed in the 
district courts of the counties to be affected by the 
reapportionment; 

(2) the numbers and types of cases disposed of by 
dismissal or judgment in the district courts of those 
counties; 

(3) the numbers and types of cases pending in the 
district courts of those counties; 

footnote 1/ cont, -- 

 



  

footnote 1/ cont. 

the number of district courts in those counties; 

the population of the counties; 

the area to be covered by a judicial district; 
and 

(7) the actual growth or decline of population and 
district court case load in the counties to be affected. 

(c) Each judicial district affected by a reapportiomment 
must contain one or more complete counties except as provided 
by this section. More than one judicial district may contain 
the same county or counties. If more than one county is 
contained in a judicial district, the territory of the judicial 
district must be contiguous. 

(d) Subject to the other rules and conditions in this 
section, a Judicial district in a reapportionment under this 
subchapter may: 

(1) be enlarged in territory by including an 
additional county or counties in the district, but a 
county having a population as large or larger than the 
population of the judicial district being reapportioned 
may not be added to the judicial district; 

(2) be decreased in territory by removing a county 
or counties from the district; 

(3) have both a county or counties added to the 
district and a county or counties removed from it; or 

(4) be removed to another location in the state so 
that the district contains an entirely different county or 
counties. 

(e) The legislature, the Judicial Districts Board, or the 
Legislative Redistricting Board may not redistrict the judicial 
districts to provide for any judicial district smaller in size 
than an entire county except as provided by this subsection. 
Judicial districts smaller in size than the entire county may 
be created subsequent to a general election in which a majority 
of the persons voting on the proposition adopt the proposition 
"to allow the division of County into judicial 
districts composed of parts of County." A 
redistricting plan may not be proposed or adopted by the 
legislature, the Judicial Districts Board, or the legislative 
Redistricting Board in anticipation of a future action by the 
voters of any county. 

  

   



  

Those statutes expressly require that the reapportionment of 

state judicial election districts be made on that basis which 

"will best promote the efficiency and promptness of the adminis- 

tration of justice in the state by equalizing as nearly as 

possible the judicial burdens of the district courts of the 

various judicial districts." The Code further sets out the 

factors to be considered in determining which reapportionment 

best promotes the efficiency and promptness of the administration 

of justice. 

1.7. Not only are both race and racial discrimination 

entirely alien to Texas' judicial district reapportionment policy 

and the factors enumerated under it, but both the statement of 

policy itself and the enumerated factors to be considered make it 

absolutely clear that the fundamental state policy that deter- 

mines the apportionment of judicial districts is the vitally 

important policy of promoting efficiency, promptness, and 

fundamental fairness in the administration of justice in Texas. 

Plaintiffs, however, would simply disregard this compelling state 

policy in the interests of increasing the numbers of protected 

minority class members in the state judiciary. Indeed, Plain- 

tiffs expressly state that "the present electoral scheme is 

without any legitimate or compelling governmental interest and it 

arbitrarily and capriciously cancels, dilutes, and minimizes the 

force and effect of the Plaintiffs' voting strength.” Plain- 

tiffs' First Amended Complaint at q 31. 

1.8. Despite their claim that the present judicial election 

scheme is without any legitimate foundation, Plaintiffs state no 

 



  

claim against Texas' judicial election scheme in general. 

Rather, they complain that Texas' state judicial districts were 

established and/or are maintained in certain target counties with 

the intent to discriminate against minorities protected by § 2 of 

the Voting Rights Act, and that the district judge election 

scheme in those counties dilutes the votes of blacks and 

Hispanics and thereby violates the Voting Rights Act, 42 U.S.A. 

£8 1971 and 1973, the Civil Rights Act, U.S.C. §% 1983 and 1988, 

and the fourteenth and fifteenth amendments to the United States 

Constitution. Plaintiffs' Complaint is essentially that when the 

target counties, which are widely scattered over. the State of 

Texas, are considered as an aggregate, the proportional represen- 

tation of black and/or Hispanic judges in those counties is less 

than the proportion of minorities in the gross population of 

those aggregated counties. 

1.9... This suit initially challenged the judicial election 

system in 47 Texas counties.’ By agreement between Plaintiffs 

and the State of Texas, approved by the Court on oral motion of 

the parties at a hearing on various motions to intervene on 

February 27, 1989, the number of targeted counties was reduced to 

15. These counties are Harris, Dallas, Ector, McLennan, Tarrant, 

  

The counties targeted initially were Harris, Dallas, Ector, Mclennan, 
Tarrant, Midland, Travis, Jefferson, Galveston, Bell, Lubbock, Fort Bend, 
Brazos, Brazoria, Taylor, Wichita, Angelina, Gregg, Smith, Atascosa, 
Frio, Karnes, LaSalle, Wilson, Aransas, Bee, Live Oak, McMullen, San 

Patricio, Caldwell, Comal, Hays, Calhoun, DeWitt, Goliad, Jackson, 
Refugio, Victoria, Castro, Hale, Swisher, Culberson, El Paso, and 
Hudspeth. 

 



  

Midland, Travis, Jefferson, Galveston, Lubbock, Fort Bend, Smith, 

Culberson, El Paso, Hudspeth. Plaintiffs subsequently added 

Bexar County as a Defendant. 

IY. 

DEFENSES 
  

2.1. Defendant Wood acknowledges that the League of United 

Latin American Citizens ("LULAC") consists of statewide and local 

organizations composed primarily of United States citizens of 

Mexican descent as alleged in paragraphs 1, 4 and 5 of Plain- 

tiffs' First Amended Complaint (the "Complaint"). However, she 

is without knowledge or information sufficient to. form a belief 

as to the truth of the averments in the first paragraph of the 

Complaint about the citizenship and race of all the members of 

LULAC, ' LULAC "Council #4434, LULAC Council #4451 and the 

individual Plaintiffs Christina Moreno, Aquilla Watson, Matthew 

W. Plummer, Sr., Joan Ervin, Jim Conley, Volma Overton, Willard 

Pen. Conat, Gene Colins, ‘Al Price, Thecdore M. Hogrobrooks, 

Ernest M. Deckard, Mary Ellen Hicks, and Rev. James Thomas. 

2.2. Paragraph 2 of the Complaint contains only averments 

to which no responsive pleading is required; however, to the 

extent that it is construed to contain averments requiring a 

responsive pleading, Defendant denies them. 

2.3. To the extent that paragraph 3 of the Complaint is 

construed to contain averments to which responsive pleadings are 

required, Defendant Wood admits the averment in paragraph 3 that 

the Court has Jurisdiction over this action. She is without 

 



  

knowledge or information sufficient to form a belief as to 

whether each of the cited statutory provisions provides suffi- 

cient jurisdiction. 

2.4. Defendant Wood is without knowledge or information 

sufficient to form a belief as to the truth of the averments in 

paragraphs 4, 5,.6, 7, 7a, 8, 9, 10, 11, 12, 13, 14, 15, 16, 16a, 

and 17 of the Complaint. She is without knowledge or information 

sufficient to form a belief as to the averments in paragraph 18, 

except to the extent that those averments are admitted by the 

tate Defendants. 

2.5. Defendant Wood admits the averments in paragraph 19 

and 20 of the Complaint. 

2.6. Defendant Wood is without knowledge or information 

sufficient to form a belief as to the truth of the averments in 

the remaining paragraphs, 21-32, of the Complaint to which a 

responsive pleading may be required and therefore denies them. 

However, Defendant Wood expressly denies the Plaintiffs' implicit 

claim that Texas has multi-member judicial districts. 

2.7... In" addition, in. response to paragraph 26 of the 

Complaint, Defendant Wood specifically denies that the at large 

judicial election system causes an inequality in the opportunity 

of black and/or Hispanic voters to elect representatives of their 

choice, since state district judges are not representatives of 

the electorate. 

2.8. Defendant Wood makes no contention or assertions 

regarding any other county of the state except Harris County. 

 



  

However, in response to paragraphs 28 and 29 of the Complaint, 

and with respect to Harris County alone, Defendant Wood 

specifically denies that the present at large scheme of electing 

district judges was intentionally created or is maintained with a 

discriminatory purpose or that it violates the civil rights of 

the Plaintiffs by diluting their votes. She further denies that 

the present at large election scheme results in a denial or 

abridgement of the right of the Plaintiffs to vote on account of 

their race or color in that they have less opportunity than other 

members of the electorate to elect candidates of their choice. 

Defendant Wood asserts that such condition or effect does not 

exist in Harris County with respect to the election of district 

judges. She also asserts that no violation of the Voting Rights 

Act or of the United States Constitution has occurred within 

Harris County with respect to the current method or scheme of 

electing district judges and that, therefore, no remedy is 

required or justified in order to alleviate a problem which does 

not exist within this county. 

2.9. Defendant Wood also denies, with respect to paragraph 

31 of the Complaint, that Plaintiffs will be irreparably harmed 

by the continuing violation of their rights in Harris County 

since she denies that there are any such violations in Harris 

County. She further denies that the present electoral scheme in 

Harris County is without any legitimate or compelling government 

interest. 

 



  

11. 

AFFIRMATIVE DEFENSES 
  

A. Plaintiffs Lack Standing to Bring Their Claims in Twelve of 
the Fifteen Target Counties. 
  

  

3.1. Defendant Wood hereby incorporates by reference the 

allegations heretofore made in paragraphs 1.1 through 2.9 as 

though fully restated. 

3.2. Defendant Wood, still urging and relying on the 

matters herein alleged, further alleges by way of affirmative 

defense that, despite their amendments, Plaintiffs still lack 

standing to bring their claims of vote dilution in five of the 

sixteen counties which are targets of this suit in that no 

individual Plaintiff named in this complaint is a resident of 

Dallas, McLennan, Culberson, El Paso, or Hudspeth County. Voting 

rights cases are fact intensive and impact the voting rights of 

citizens of the individual judicial districts in which they are 

brought on ‘a county by county basis. No decision of this Court 

regarding the application of Texas' judicial district election 

scheme to any of the five counties listed above will affect any 

Plaintiff named in this case. When no Plaintiffs ‘will be 

affected by a decision regarding a claim the Court lacks juris- 

diction over that ‘claim. Hence all claims as to the five 

unrepresented counties should be dismissed and the case as to the 

remaining counties other than Midland should be severed and 

transferred to such counties. 

 



  

3.3. In the alternative, the Court should join as indis~- 

pensable parties individual voters in each target county as well 

as the district judges of those counties. 

B. Plaintiffs Fail to State a Claim Upon Which Relief Can Be 
Granted. 
  

4.1. Defendant Wood hereby incorporates by reference the 

allegations heretofore made in paragraphs 1.1 through 3.3 as 

though fully restated. 

4.2. Plaintiffs' Second Amended Complaint fails to state a 

claim upon which relief can be granted. Plaintiffs' essential 

claim is that their votes are diluted because of the at-large 

district judge election system in the target counties, including 

Harris County. However, each of the challenged judicial 

districts, including each of the districts challenged in Harris 

County, is a county-wide single member district. State district 

judges, such as Judge Wood, are elected to a specific judicial 

district and serve as the only judge for that district. Each 

wields full power in his or her district and is subject to all 

its voters. Such judges do not sit as members of a collegial 

decision making body. Vote dilution claims cannot be made 

against a single member electoral system. 

4.3. "In addition, Plaintiffs attack Harris County as a 

single judicial election system when, in actuality, the judicial 

election system in effect in Harris County consists of four 

different systems, a system of district courts of general 

jurisdiction, a system of civil district courts, a system of 

criminal district courts, and a system of family district courts. 

 



  

Each of these systems is co-extensive with Harris County, and 

each is a distinct system of single member district courts 

serving specialized functions. Each district judge elected to a 

specialized court in Harris County is the only judge elected from 

his or her district, wields power throughout that district, and 

is subject to all its voters. Vote dilution claims cannot be 

made against such single member electoral systems, and the 

Plaintiffs have made no claims which suggest that they are even 

aware of the existence of the four specialized court systems in 

Harris County, much less that those systems violate or could 

violate the Voting Rights Act or the Constitution. 

C. State Judicial Elections Are Beyond the Scope of the Voting 
Rights Act. 
  

  

5.1. Defendant Wood hereby incorporates by reference the 

allegations heretofore made in paragraphs 1.1 through 4.3 as 

though fully restated. 

5.2... Defendant Wood, still urging and relving on the 

matters herein alleged, further alleges by way of affirmative 

defense that state judicial elections are beyond the scope of the 

Voting Rights Act in that the plain language of § 2 of the Voting 

Rights Act, as amen@ed: in 1982 and codified at 42 U.8.C. 

§ 1973(b), limits the scope of the Act to elections of "represen- 

tatives," not judges; and she alleges that the Voting Rights Act 

cannot be properly understood to require that judges, who serve 

the people rather than represent them, must be elected from 

single member sub-districts drawn on racial lines, as Plaintiffs 

would require, in order to correct for the alleged "dilution" of 

 



  

the votes of protected minority class members in county-wide 

judicial districts. 

D. The Voting Rights Act, as Amended, is Unconstitutional as 
Applied to Judicial Elections. 
  

  

6.1. Defendant Wood hereby incorporates by reference the 

allegations heretofore made in paragraphs 1.1 through 5.2 as 

though fully restated. 

6.2. Defendant Wood, still urging and relying on the 

matters herein alleged, further alleges by way of affirmative 

defense that the Voting Rights Act, as amended in 1982, is 

unconstitutional as applied to judicial elections. 

6.3. "The Voting Rights Act derives its constitutional 

validity from the fourteenth and fifteenth amendments to the 

United States Constitution and, in particular, from § 5 of the 

fourteenth amendment and § 2 of the fifteenth amendment, which 

grant to Congress the power to enforce the provisions of those 

amendments. Both of those constitutional amendments can be 

violated only by intentional discrimination. When the Supreme 

Court held that the Voting Rights Act likewise could be violated 

only by purposeful discrimination, Congress amended § 2 of the 

Voting Rights Act to make it clear that a violation could be 

proved by showing the discriminatory effect of a contested 

electoral mechanism alone, without showing a discriminatory 

purpose on the part of the state in adopting or maintaining that 

mechanism. Thus it is now possible to violate the Voting Rights 

Act without violating the Constitution. 

 



  

6.4. Although Congress has the power under the fourteenth 

and fifteenth amendments to pass statutes prohibiting conduct 

which does not rise to the level of a constitutional violation, 

it may not infringe any provision of the Constitution in doing 

so. Yet, in order to extend the protected minorities protections 

which are not themselves required by the Constitution, the 

amended Voting Rights Act, at least as applied to judicial 

elections, violates two constitutional concepts, namely the 

principle of separation of powers underlying both the United 

States Constitution and the Texas Constitution and the Equal 

Protection Clause of the fourteenth amendment. 

a, Violation of the Equal Protection Clause 
  

6.5. The Equal Protection Clause of the fourteenth amend- 

ment to the United States Constitution provides that "[nlo State 

shall . . . deny to any person within its jurisdiction the equal 

protection of the laws." The Voting Rights Act, as amended in 

1982, is, however, expressly designed to force states to adopt 

remedies for "vote dilution" which increase the voting strength 

of the members of protected classes over that of the members of 

all other classes and thus deprive the members of the non- 

protected classes of the equal protection of the laws. Since 

Defendant Wood is not a member of a class protected by the Act, 

that Act, as used to force the restructuring of state judicial 

election districts in Harris County, Texas, would unconstitu- 

tionally deprive Defendant Wood of the equal protection of the 

 



  

laws in order to extend to minorities voting preferences which 

3/ are not constitutionally mandated.= 

  

3/ Section 2 of the Voting Rights Act of 1965, as originally pramulgated and 
enforced prior to 1982, did not expressly favor protected classes. The 
Act simply forbade any state or political subdivision to deny or abridge 
the right of any citizen of the United States to vote on account of race 
or color. In 1975, the Act was amended to extend its protections to 
members of language minority groups. As amended in 1975, the § 2 of the 
Voting Rights Act provided: 

No voting qualification or prerequisite to voting, or stan- 
dard, practice, or procedure shall be imposed or applied by 
any State or political subdivision to deny or abridge the 
right of any citizen of the United States to vote on account 
of race or color, or in contravention of the guarantees set 
forth in section 1973b(f) (2) of this title [i.e., guarantees 
protecting language minority groups]. 

42 U.S.C. § 1973. In 1982 the Act was amended once again; and this time 
its protections were expressly limited to "members of a protected class." 
Section 2 of the Voting Rights Act, as amended in 1982, provides: 

(a) No voting qualification or prerequisite to voting, 
or standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision in a manner 
which results in a denial or abridgement of the right of any 
citizen of the United States to vote on account of race or 
color, or in contravention of the guarantees set forth in 
section 1973b(f) (2) of this title, as provided in subsection 
(b) of this section. 

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

42 U.8.C. §:1973, 

- 15 

 



6.6. More specifically, the protections of § 2 of the 

Voting Rights Act, as amended, can be invoked in a vote dilution 

case, such as the present case, only by a protected minority 

which is geographically insular and politically cohesive and 

votes as a racial block against a white majority which also votes 

as a racial block and usually manages to defeat candidates 

preferred by the protected minority. In that situation -- and in 

that situation only ~-- the Voting Rights Act comes alive to 

ensure that the protected class will be entitled to elect the 

representatives of its choice -- i.e., generally, representatives 

of its racial group -- even if the result of that entitlement is 

that non-protected classes are allotted fewer representatives 

relative to their numbers in the voting population; even if the 

result is to foster a politics of racial identification and 

hostility; and even if the result is to invalidate district 

boundaries drawn for compelling state reasons having nothing to 

do with race. By contrast, the same Voting Rights Act turns a 

blind eye to the plight of an unprotected class which finds 

itself in the precise circumstances which would trigger the Act 

if the class were protected, namely, in a situation where the 

unprotected class constitutes a minority of voters within a given 

election district -- a situation which, on information and 

belief, prevails in much of South Texas. 

6.7. Defendant Wood makes no allegations concerning the 

constitutionality of the Voting Rights Act in regard to matters 

other than judicial elections. However, in regard to judicial  



  

elections, Section 2 as amended is a preferential Act which, in 

the name of preventing discrimination, is actually a device for 

encouraging and rewarding racial politics and implicitly the 

notion of race-conscious justice (a) by forcing states to adopt 

measures to remedy "vote dilution" which ignore the principle of 

"one-man, one-vote" and (b) by guaranteeing a disproportionately 

large number of minority judges committed to such race-conscious 

justice. Both concepts would deprive nonprotected classes of 

the equal protection of the law. That Act therefore flagrantly 

violates the Equal Protection Clause of the Constitution. 

b. Violation of the Separation of Powers Principle 
  

6.8. Second, the Voting Rights Act, when extended to 

judicial elections, obliterates the distinction between legisla- 

tors -- who represent the people and are properly representatives 

of the voters' personal interests (such as their identification 

with their race) -- and judges -- who serve the interests of all 

the people impartially and who properly are impervious to the 

desires of the voters to promote racial identification. It is 

noteworthy, however, that, while the Plaintiffs in this case 

insist that judges are representatives under the Voting Rights 

Act, they deny that the principle of "one man, one vote" applies 

to these representatives. Thus the Plaintiffs would have judges 

be representatives of their racial groups and indebted to racial 

politics for their offices, but they would not preserve the 

principle -- crucial to the representative system of government 

== that every person is ‘entitled ‘to one vote for a 

 



  

representative. Whenever the Voting Rights Act is applied to 

judges, but especially when it is applied in the way sought by 

the Plaintiffs in this case, the proper distinctions between the 

legislative and judicial functions and their defining 

characteristics are sacrificed to the promotion of political 

interests; and any state in which the Voting Rights Act is so 

enforced is denied the opportunity to maintain the separation of 

the legislative and judicial functions which is fundamental to 

the United States Constitution itself and to all state consti- 

tutions, including the Texas Constitution. 

WHEREFORE, Harris County District Judge Sharolyn Wood 

respectfully requests that the Houston Lawyers' Association 

Plaintiffs' cause of action be dismissed with respect to the 

system for electing district judges within Harris County and that 

judgment be entered in her favor. 

111. 

DEFENDANT WOOD'S COUNTERCLAIM 
  

Harris County District Judge Sharolyn Wood, Defendant in the 

above-captioned action, now acting as and designated Counter- 

Plaintiff, complains of the Plaintiffs, now designated Counter- 

Defendants, and for cause of action would show by way of counter- 

claim the following: 

7.1. Counter-Plaintiff incorporates by reference the 

allegations in paragraphs 1.1 through 6.8 as though fully 

restated. 

 



  

7.2... In connection with +the controversy which 1s the 

subject of this cause of action, Counter-Defendants rely 

integrally on the constitutionality of the Voting Rights Act of 

1965 as amended in 1982 and codified at 42 U.S.C.A. § 1973 (West 

Supp. 1988). Title 28 §§ 2201 and 2202 permit any interested 

party to seek a declaration of his rights and other legal 

relations in a case of actual controversy within its jurisdiction 

and to seek further necessary or proper relief based on a 

declaratory judgment. Therefore Counter-Plaintiff seeks a 

declaration of her rights vis-a-vis the amended Voting Rights Act 

under the United States Constitution. 

7.3. For the reasons set forth above in paragraphs 5.1 

through 5.2 and hereby incorporated by reference, Counter- 

Plaintiff alleges that state judicial elections are beyond the 

scope of the Voting Rights Act of 1965. 

7.4. Alternatively, and still urging and relying upon the 

claim set forth herein, Counter-Plaintiff further alleges that, 

for the reasons set forth in paragraphs 6.1 through 6.8 and 

hereby incorporated by reference, the Voting Rights Act as 

amended in 1982 is unconstitutional as applied to judicial 

elections. It deprives non-protected classes of the equal 

protection of the law, in violation of the fourteenth amendment; 

and in addition, it deprives citizens of those states in which it 

is invoked to force the redistricting of state judicial election 

districts of their right to a form of government in which the 

function of the judiciary as servants of the people is kept 

 



  

separate from the function of the legislature as representatives 

of the people. More specifically, its application in the way 

urged by Plaintiffs would deprive Defendant Wood of her consti- 

tutional rights. 

7.5. In that she seeks a declaration of her constitutional 

rights, Defendant Wood is entitled to court costs and attorney's 

fees. 

WHEREFORE, Counter-Plaintiff Wood respectfully prays that 

the Court will grant her relief as follows: 

1. Declare that the Voting Rights Act of 1965, as amended 

in 1982, does not apply to judicial elections; or, alternatively, 

2. Declare that the Voting Rights Act of 1965, as amended 

in 1982, is unconstitutional as applied to judicial elections; 

3. Dismiss all of Plaintiffs' claims; and 

4. Award Counter-Plaintiff her just costs and attorney's 

fees pursuant +o 28 U.S.C, § 2202 and 42 U.85.C. § 1988; and 

5. Award Counter-Plaintiff such other and further relief 

in law and in equity to which she may show herself to be justly 

entitled. 

Respectfully submitted, 

PORTER & CLEMENTS 

Sore Cormier? 
ti £ Foy Ziel, V. (lye Wiis 

yf tomtats Or 
gi x: Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 
(713) 226-0600 

  

- 20 - 

 



  

  

By: wh iia! ON. 

Darrell Smith 
Attorney at Law 

10999 Interstate Hwy. 10, #905 
San Antonio, Texas 78230 

(512) 641-9944 

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

OF COUNSEL: 

PORTER & CLEMENTS 

John E. O'Neill 
Evelyn V. Keyes 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

(713) 226-0600 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, Texas 77002 

(713) 228-5105 

CERTIFICATE OF SERVICE 
  

I hereby certify that a true and correct. copy of the 
foregoing Harris County District Judge Sharolyn Wood's Second 
Amended Original Answer and Counterclaim to Plaintiffs LULAC, et 
al. has been served on all counsel of record by first class 
United States mail, postage prepaid on this 244 day of May, 
1989, as follows: 

William L. Garrett, Esq. 
Brenda Hall Thompson, Esq. 

Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

Rolando L. Rios, Esq. 
Southwest Voter Registration & 

Education Project 
201 N., St, Mary's, Suite 221 
San Antonio, Texas 78205 

Susan Finkelstein, Esq. 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

WES 5 

 



  

Julius Levonne Chambers, Esq. 
Sherrilyn A. Ifill, Esq. 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, New York 10013 

Gabrielle K. McDonald, Esq. 
Matthews & Branscomb 

301 Congress, Avenue 

Suite 2050 

Austin, Texas 78701 

Jim Mattox, Attorney General of Texas 
Mary F. Keller, First Assistant Attorney General 
Renea Hicks, Spec. Assistant Attorney General 
Javier Guajardo, Spec. Assistant Attorney General 
P.>0." Box 12548 
Capitol Station 
Austin, Texas 78701 

Fdward B., Cloutman, 111, Esq. 

Mullinax, Wells, Baab & Cloutman, P.C. 

3301 Elm Street 

Dallas, Texas 75226-1637 

E. Brice Cunningham, Esq. 
777 So. R.L. Thornton Freeway 
Suite 121 
Dallas, Texas 75203 

Ken Oden, Esq. 

Travis County Attorney 
P. O.. Box 1748 

Austin, Texas 78767 

David R. Richards, Esq. 
Special Counsel 
600 W. 7th Street 
Austin, Texas 78701 

Mark H. Dettman 

Attorney at Law 

P. OO. Box 2559 

Midland, Texas 79702 

Evelyn V. Kefes / 
  

WO002/09/cdf