United States v. Caldwell Brief for Respondent

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 90-8014

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

Plain tiffs-Appellees,

v.

THE ATTORNEY GENERAL 
OF THE STATE OF TEXAS, et al.,

Defendants-Appellants

On Remand From the 
United States Supreme Court

BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ

Of Counsel:

Sidney Powell 
STRASBURGER & PRICE 
901 Main Street 
Suite 4300 
Dallas, Texas 75202 
(214) 651-4692

Robert H. Mow, Jr.
David C. Godbey 
Bobby M. Rubarts 
Craig M. Budner

of HUGHES & LUCE, L.L.P.

1717 Main Street 
Suite 2800 
Dallas, Texas 75201 
(214) 939-5500

ATTORNEYS FOR 
DEFENDANT-APPELLANT 
JUDGE F. HAROLD ENTZ

September 6, 1991



No. 90-8014,
League of United Latin American Citizens (LULAC), et al. v.

The Attorney General of the State of Texas, et al.

The undersigned counsel of record certifies that the following listed persons have 
an interest in the outcome of this case. These representations are made in order that the

CERTIFICATE OF INTERESTED PARTIES

Judges of this Court may evaluate possible disqualification or recusal.

The League of United Latin 
American Citizens, Council # 4434 Plaintiff-Appellees

The League of United Latin 
American Citizens, Council #4451 Plaintiff-Appellees

The League of United Latin 
American Citizens, Council 
(Statewide) Plaintiff-Appellee

Christina Moreno Plaintiff-Appellee

Aguilla Watson Plaintiff-Appellee

James Fuller Plaintiff-Appellee

The Houston Lawyers' Association Plaintiff-Appellee

Jesse Oliver Plaintiff-Appellees

Joan Winn White Plaintiff-Appellees

Fred Tinsley Plaintiff-Appellees

Dan Morales Defendant-Appellant

John Hannah Defendant-Appellant

Thomas R. Phillips Defendant-Appellant

Michael J. McCormick Defendant-Appellant

Pat McDowell Defendant-Appellant

Thomas J. Stovall, Jr. Defendant-Appellant

B.B. Schraub Defendant-Appellant

John Comyn Defendant-Appellant

Darrell Hester Defendant-Appellant

William E. Moody Defendant-Appellant

i



Weldon Kirk 

Jeff Walker 

Ray D. Anderson 

Joe Spurlock, II 

David A. Talbot, Jr. 

Leonard Davis 

Sharolyn Wood 

F. Harold Entz 

Tom Rickhoff 

Susan D. Reed 

John J. Specia, Jr. 

Sid L. Harle 

Sharon MacRae 

Michael P. Pedan

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant- Appellant 

Defendant- Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant

Rolando L. Rios; Garrett, Thompson & Chang, counsel for plaintiff-appellees, The League 
of United Latin American Citizens, Council #4434; The League of United Latin 
American Citizens, Council #4451; Cristina Moreno; Aguilla Watson; The League 
of United Latin American Citizens, Council (Statewide); and James Fuller

Matthews & Branscomb; Sherrilyn Ifiil, cousel for plaintiff-appellees, The Houston 
Lawyers' Association

Renea Hicks, Javier Guajardo, counsel for state defendants appellants, The Honorable Dan 
Morales, The Honorable John Hannah, The Honorable Thomas R. Phillips, The 
Honorable Michael J. McCormick, The Honorable Pat McDowell, The Honorable 
Thomas J. Stovall, Jr., The Honorable B.B. Schraub, The Honorable John 
Comyn, The Honorable Darrell Hester, The Honorable William E. Moody, The 
Honorable Weldon Kirk, The Honorable Jeff Walker, The Honorable Ray D. 
Anderson, and The Honorable Joe Spurlock, II, The Honorable David A. Talbot, 
Jr.

James Greenleaf Boyle; Mullinax, Wells, Baab & Cloutman; E. Brice Cunningham, 
counsel for plaintiff-appellants, Jesse Oliver, Joan Winn White, and Fred Tinsley

Porter & Clements; Darrell Frank Smith, counsel for defendant-appellant, The Honorable 
Sharolyn Wood

Hughes & Luce, counsel for defendant-appellant, The Honorable F. Harold Entz



Kaufman, Becker, Pullen & Reibach, Inc.; Oppenheimer, Rosenberg, Kelleher & 
Wheatley, Inc.; Goldstein, Goldstein & Hilley, counsel for Bexar County Judge 
Intervenors

icord for 
larold Entz

iii



STATEMENT REGARDING ORAL ARGUMENT

By order dated August 6, 1991, the Court has set this case for oral argument on 
November 4, 1991.

IV



TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PARTIES ....................................................... i

STATEMENT REGARDING ORAL A R G U M E N T ....................................................... iv

TABLE OF C O N T E N T S ............................................................................................ ........

TABLE OF A U T H O R IT IE S ..........................................................................................viii

STATEMENT OF JU R IS D IC T IO N .................................................................................1

ISSUES PRESENTED......................................................................................................... \

SUMMARY OF RESPONSES TO COURT'S QUESTIONS............................................2

STATEMENT OF THE C A S E .............................................................................................4

A. Course of P ro c e e d in g s .......................................................................... 4

B. Statement of F a c t s ................................................................................ 4

SUMMARY OF THE A R G U M E N T ................................................................................ 9

ARGUMENT .................................................................................................................... 10

I. THE DISTRICT COURT FAILED TO CONSIDER
COMPELLING STATE IN T E R E S T S ............................................................ 10

A. A Properly Compelling State Interest
Can Prevent a Section 2 V i o l a t i o n ............................................................ 10

1. A Compelling State Interest Outweighs All
Other Factors in the Totality of C ircum stances....................................10

2. A. Two-Part Test Should Be Used to Identify
Compelling Interests Under Section 2 ................................................ 12

B . Dallas County’s Current System of Judicial
Administration Protects Compelling State In te re s ts ....................................13

1. The Present System Reflects Texas’
Citizens’ Expression of Self G o v e rn m e n t .......................................... 14

2. The Present System Protects Litigants
from Disenfanchisement..................................................... . . .  16

3. The Present System Protects The Rights
of Criminal D e fe n d a n ts .........................................................................16

v



4. The Current System Allows Judges to
Specialize......................................................................................  26

5. The Present System Protects Minority
R e p re se n ta tio n .....................................................................................

C. Even Were Texas’ Interest Not Compelling 
the District Court Must Still be Reversed for
a Proper Assessment of Texas’ I n te r e s t ................................................. 17

IS
•:vr»
u

II. AN APPLICATION OF SECTION 2 TO TRIAL JUDGES 
WOULD BE UNCONSTITUTIONAL .

A. Application of Section 2(b) to Texas'
State Judiciary Would Unconstitutionally
Impinge on Intrinsically Sovereign M a t te r s ......................... . . .  19

1. States Retain a Residual Core of 
Sovereignty Into Which The Federal 
Government Cannot Intrude .

2. Application of Section 2(b) to State 
Judges Would Impermissibly Intrude on 
the Operation of the State J u d ic ia ry ............................... . . .  21

B. Applying Section 2(b) to Judges Violates 
Principles of Separation of Powers . . .  22

C. The 1982 Amendments to Section 2 Were Not
A Valid Exercise of Congress' Authority............................... . . .  24

D. Section 2 is Unconstitutionally Vague

E. If the District Court Properly Applied 
the Voting Rights Act, that Act Is 
Unconstitutional .

1. The Voting Rights Act is Unconstitutional 
Unless the Race of the Candidate Matters . . .  27

2. The Voting Rights Act is Unconstitutional 
Unless It Requires a Causal Link Between 
the Challenged Practice and the Claimed Harm . . . . .  27

IE. THE DISTRICT COURT MISAPPLIED SECTION 2 . . . .  28
A. The District Court Rejected This 

Court's Test for Racially Polarized 
Voting Under Section 2 . . .  . . . . 28

m

vi



B . The District Court Used the Wrong 
Baseline For Determining Degree of
Minority Electoral S u c c e s s ........................................................................ 32

C. The District Court's Finding Under 
The Totality Of Circumstances Was
Clearly E r r o n e o u s .....................................................................................34

1. The District Court Used An Improper
Standard of P roof.....................................................................................34

2. Appellees Used Outdated Statistical
D a t a ....................................................................................................... 34

3. Under the Proper Standard of Proof 
the District Court's Conclusions Were
Clearly E r r o n e o u s ...............................................................................36

C O N C L U S IO N ............................................................................................................. 39

CERTIFICATE OF SERVICE...........................................................................................40

p:

tW
vii



TABLE OF AUTHORITIES

CASES

Boyd v. Thayer,
143 U.S. 135 (1 8 9 2 )......................................................................................... 12

Cabell v. Chavez-Salido,
454 U.S. 432 (1 9 8 2 )......................................................................................... 11

Campos v. City of Baytown,
840 F.2d 1240 (5th Cir. 1988),
cert, denied, 109 S. Ct. 3213 (1989)................................................................  34

Cipriano v. City o f Houma,
395 U.S. 701 (1 9 6 9 )......................................................................................... 16

Citizens for a Better Gretna v. City o f Gretna,
834 F.2d 496 (5th Cir. 1987), cert, denied,
492 U.S. 905 (1 9 8 9 )......................................................................................... 35 n.28

Coalition to Preserve Houston v. Interim Bd. 
of Trustees ofWestheimerlnd. School Dist.,
494 F. Supp. 738 (S.D. Tex. 1980) affd,
450 U.S. 901 (1 9 8 1 )......................................................................................... 32

Coyle v. Smith,
221 U.S. 559 (1 9 1 1 )......................................................................................... 12 n.12,19

Crowell v. Benson,
285 U.S. 22 ( 1 9 3 2 ) ......................................................................................... 12 n.12

Davis v. Bandemer,
478 U.S. 109 (1 9 8 6 )......................................................................................... 27

F.C.C. v. Pacifica Foundation,
438 U.S. 726 (1 9 7 8 )......................................................................................... 11

Garcia v. San Antonio Metro. Transit Authority,
438 U.S. 726 (1978),
cert, denied, 488 U.S. 889 ( 1 9 8 8 ) ................................................................  19& n.14

Groyned v. City’ of Rockford
408 U.S. 104 (1 9 7 2 )........................................................................................  26

Gregory v. Ashcroft,
111 S. Ct. 2395 (1 9 9 1 ) .......................................................................... 11,12,14,19,21,22

Houston v. Haley,
859 F.2d 341 (5th Cir. 1988), vacated on other grounds,
869 F.2d 807 (5th Cir. 1 9 8 9 ) ................................................................ 29 n.22,35,36 n.29

Houston Lawyer’s Association v. Attorney General of Texas,
111S. Ct. 2376 (1 9 9 1 ) .................................................................................... passim

viii



Jones v. City of Lubbock,
727 F.2d 364 (5th Cir. 1 9 8 4 ) .......................................................................... 26

League of United Latin American Citizens Council No. 4434 v. Clements,
914 F.2d 620 (5th Cir. 1 9 9 0 ) ..........................................................................  passim

Lemon v. Kurtzman,
403 U.S. 602 (1 9 9 1 )................................................................................... . 12

Martin v. Mabus,
700 F. Supp. 327 (S.D. Miss. 1988) ...........................................................  21 n.16

City of Mobile v. Bolden,
446 U.S. 55 ( 1 9 8 0 ) ......................................................................................... 9,21 n.15

Monroe v. City ofWoodville,
881 F.2d 1327, modified, 897 F.2d 763
(5th Cir. 1989), cert, denied, 111 S. Ct. 71 (1 9 9 0 ) .......................................  10,28-29

Oregon v. Mitchell,
400 U.S. 112 (1 9 7 0 )......................................................................................... 20

Overton v. City o f Austin,
871 F.2d 529 (5th Cir. 1 9 8 9 ) ..........................................................................  29 n.22,35

Papachristou v. City o f Jacksonville,
'405 U.S. 156 (1 9 7 2 )......................................................................................... 26

City of Phoenix v. Kolodziejski,
399 U.S. 204 (1 9 7 0 )......................................................................................... 16

Posadas de Puerto Rico Assoc, v. Tourism Co. of Puerto Rico,
478 U.S. 328, 334 ......................................................................................... 11

Regents o f the University of California v. Bakke,
438 U.S. 265 (1 9 7 8 )......................................................................................... 28

City of Richmond v. J. A. Croson Co.,
488 U.S. 469 (1989) ....................................................................................  18 n.13,28,32

Snepp v. United States,
444 U.S. 507 (1 9 8 0 )......................................................................................... 11

South Carolina v. Katzenbach,
383 U.S. 301 (1 9 6 6 )........................................................................................  25 nn.20,21

Sugarman v. Dougall,
413 U.S. 634 (1 9 7 3 )......................................................................................... 11

Texas v. White,
74 U.S. 700 ( 1 8 6 8 ) ......................................................................................... 20

Thornburg v. Gingles,

tx



478 U.S. 30 ( 1 9 8 6 ) .......................................................................................  18,27,30,33

United Jewish Organizations of Williamsburg v. Carey,
430 U.S. 144 (1 9 7 7 )........................................................................................ 27

United States v. Dickie,
775 F.2d 607 (5th Cir. 1 9 8 5 ) ..........................................................................  16

United States v. Reese,
92 U.S. 214 ( 1 8 7 6 ) ......................................................................................... 26

United Trans. Union v. Long Island R.R. Co.,
455 U.S. 678 (1 9 8 2 )........................................................................................ 19

Wards Cove Packing Co. v. Atonio,
490 U.S. 642 (1 9 8 9 )............................................................................... 12 n.11,18 n.13,32

Whitcomb v. Chavis,
403 U.S. 124 (1 9 7 1 )........................................................................................  27,31

Whitfield v. Democratic Party,
686 F. Supp. 1365 (E.D. Ark. 1 9 8 8 ) ...........................................................  33

White v. Regester,
412 U.S. 755 (1 9 7 3 )................... ..................................................................... 31 n.25

Wise v. Lipscomb,
437 U.S. 535 (1 9 7 8 )......................................................................................... 21 n.16

Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973), a ff d on other grounds,
424 U.S. 636 (1976) (per curiam) ................................................................  10,18

STATUTES AVD REGULATIONS 

TEXAS CONST.
Art. II, § 1 .............................................................................................  22,23
Art. V, § 1 .............................................................................................  23 n.18

Voting Rights Act
Section 2 .............................................................................................  passim

MISCELLANEOUS

Champagne, Judicial Reform in Texas,
Judicature, Oct.-Nov. 1988 ...............................................................................  8 n.6

Champagne, The Selection and Retention of Judges in Texas,
40 Sw. L. J. 66 (1 9 8 6 ) .................................................................................... 8 n.6

x



COMMITTEE ON THE JUDICIARY’S SUBCOMMITTEE 
ON THE CONSTITUTION, REPORT ON S. 1992 TO 
AMEND THE VOTING RIGHTS ACT OF 1965, attached 
as exhibit to Additional Views of Senator Hatch, S. REP.
NO. 417, 97th Cong., 2d Sess. 94 (1 982 )........................................ 24 n.19,25 nn.20,21

THE FEDERALIST No. 9
(A. Hamilton) (J. Cooke ed. 1 9 6 1 ) ................................................................  22

THE FEDERALIST No. 48
(J. Madison) (J. Cooke ed. 1961).....................................................................  22,23

Hickok, Judicial Selection: The Political Roots of Advice and Consent, in
Judicial Selection Merit, Ideology and Politics 5 (1990)................................... 24

H.R. Rep. No. 97-227, 97th Cong. 2d Sess. ( 1 9 8 2 ) ................................... 30 n.24

S. Rep. No. 97-417, 97th Cong. 2d Sess. ( 1 9 8 2 ) .......................................  31 n.25

L. Tribe, AMERICAN CONSTITUTIONAL LAW
§ 5-14 (2d ed. 1 9 8 8 ) ......................................................................................... 24

1982 U.S. CODE CONG. & ADMIN. NEWS 177 18



No. 90-8014

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

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

Plain tiffs-Appellees,

v.

THE ATTORNEY GENERAL OF THE STATE OF TEXAS, et al.,

Defendants-Appellants

BRIEF OF APPELLANT DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ

Appellant Dallas County District Judge F. Harold Entz (“Judge Entz”) offers this brief 

showing that the district court’s unprecedented intrusion into the judicial structure of the 

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

permissible scope of federal control over intrinsic state functions.

STATEMENT OF JURISDICTION

This Court has jurisdiction of this matter under the terms of the Supreme Court's remand 

in Houston Lawyers’ Association v. Attorney General o f Texas, 111 S. Ct. 2376 (1991) 

{"HLA").

ISSUES PRESENTED
Whether the district court failed to consider and properly weigh Texas’ compelling state 

interest in the existing structure of its judicial branch when assessing the totality of 

circumstances to determine whether the current electoral system violates section 2 of the Voting 

Rights Act?

Whether the application of section 2 of the Voting Rights Act to destroy a sovereign 

state's judicial branch is unconstitutional?



Whether the district court applied improper legal standards in assessing the totality of 

circumstances?

SUMMARY OF RESPONSES TO COURT'S QUESTIONS

1. This Court should give no deference to the district court’s determination that the 

current judicial electoral system violates section 2, because its limited consideration of Texas’ 

compelling state interests did not apply the proper legal standard. An assessment of whether the 

state's interest is “compelling” is a legal question subject to de novo review by this Court. If 

the state's interest is less than compelling, it, nonetheless, must be considered as a factor in the 

totality of the circumstances test, mitigating against a factual determination of a violation; 

because of the state interests at issue here, plaintiffs should be required to prove their case by 

clear and convincing evidence, and a finding for plaintiffs should be reviewed like all factual 

determinations made under such a heightened standard.

2. The State of Texas has painstakingly established a system of administering justice 

to its citizens that both is efficient for that important purpose, balances competing philosophies 

with respect to the function and character of the judicial office, and complies with the multitude 

of constitutional restrictions on that vital process.

3. If a state's interest in a challenged electoral process is compelling, no further 

analysis is needed; a compelling state interest would “trump” what otherwise might constitute a 

section 2 violation. As stated, whether the articulated interest is compelling is a legal question. 

If the state interest is not compelling, then it should be weighed in the totality of circumstances. 

This weighing is a factual determination, and should be reviewed as such. The Title VII model, 

with its shifting burden of production, is not helpful here because is would inhibit the required 

assessment of the totality of circumstances by promoting a piecemeal approach. Nonetheless, 

some of the principles found in Title VII cases are helpful by analogy in examining the totality 

of circumstances.

4. The three-pan Gingles threshold test does not consider the state’s interest. It 

affirmatively proves nothing in and of itself. With respect to a section 2 violation, the threshold

2



test merely excludes cases in which at-large voting could not be the cause of disparate results. 

Prior to the Supreme Court's ruling in HLA, consideration of the state’s interest was only 

undertaken after the threshold was crossed, and then was only considered with respect to 

whether the basis for the challenged practice was tenuous (thus, either supporting or negating 

an inference of discriminatory intent). Now, the state’s interest is to be considered as an 

affirmative factor that mitigates against a finding of discriminatory results under section 2, and, 

if compelling, prevents such a finding.

Partisan voting patterns are not relevant to a post-Gingles weighing of the circumstances; 

rather they relate only to whether or not racially polarized voting exists (a threshold analysis). 

Partisan voting negates the existence of racially polarized voting altogether; i.e., voting patterns 

are explained by a candidate's partisan affiliation rather than the candidate's race, making it 

unnecessary even to consider the totality of the circumstances.

5. The district court considered state interest only as a negative factor — if the state 

interest were tenuous (which it found was not so) then that would support a finding of a 

violation. As discussed above, if the state interest is compelling, it outweighs other factors; if it 

is not compelling, it must be considered in the overall assessment, and is a factor weighing 

against a section 2 violation.

6. The plaintiff must prove that the challenged practice is the cause of any alleged 

disparate electoral results. In the instant case, the plaintiffs’ trial proof only addressed the “at- 

large” aspect of the current system; i.e., they offered no proof that abolishing majority vote 

requirements or establishing single-shot voting would alter the results of Texas’ judicial 

elections. Thus, this Court is not presented with and need not determine the types of proof 

relevant to such issues.

The plaintiff should not be required to negate all other possible causes; it should simply be 

required to prove a causal link between the challenged practice and any alleged disparate results. 

Proof by a defendant that something else caused the disparate results, however, would rebut

3



plaintiff s proof that the challenged practice was the cause, and would preclude the existence of 

a section 2 violation.

STATEMENT OF THE CASE

A. Course of Proceedings

The course of proceedings below are set forth in this Court’s prior opinions and in the 

Supreme Court opinion in HLA.

B. Statement of Facts

Dallas County is a large metropolitan area encompassing the seventh largest city in the 

U.S. (Dallas), and several smaller, respectably sized cities (Garland, Irving, Mesquite, 

Richardson and others). (DI-Dallas Ex. 2) Dallas County has a sophisticated system of judicial 

administration to handle the problems that arise in a major metropolitan county. (Tr. 4:144) Its 

thirty-seven district courts are divided into four specialized groups with principal responsibility 

for criminal, civil, family, and juvenile matters. (DI-Dallas Ex. 22) This system of specialized 

courts is important. The electorate is empowered to make informed choices, and the judiciary is 

enabled to be vastly more efficient. Although each court operates as an autonomous judicial 

entity, central administration of case docketing and jury selection from venire persons within the 

county provides for the quick and efficient administration of justice in Dallas County. (See 

Summary of Deposition of Hon. John McClellan Marshall, DI-Dallas Ex. 24)

District judges in Dallas County run for and are elected to the bench of a particular district 

court. (Tr. 5:81) Each court hears its own docket and decides its own cases. (Id.) In 

accordance with the long tradition in the State of Texas of the county being the fundamental unit 

of state government at the local level, each judge is elected county-wide and has primary 

jurisdiction county-wide. (Tr. 4:138) This decades-old system strikes the proper balance 

between accountability and independence, and impedes parochialism in connection with the 

service of judges. It ensures that no particular single interest group in a diverse county can 

easily influence any particular judge, and that all judges have a county-wide perspective to 

match their county-wide jurisdiction. Moreover, the current system ensures that docket control

4



is maintainable, that jury selection is workable, and that all voters in the county can participate 

in the election of all judges with primary jurisdiction over the county.

Until recently, Dallas County was a one-party Democratic county. (Tr. 4:98) Beginning 

in about 1978, however, Dallas County government underwent a Republican revolution. The 

Dallas County bench in a short ten years transformed from completely Democratic to almost 

completely Republican. (Tr. 4:99; Dl-Dallas Exs. 4A-8A) Simply and conclusively, in Dallas 

County judicial politics at this particular time, only an anomalous Democratic candidate can be 

elected as a district judge.1 Conversely, candidates who run as Republicans will win.1 2

This overwhelming trend to Republican judges is completely color-blind. Black 

Republican candidates have defeated white Democratic incumbents. Conversely, white 

Republican challengers have defeated highly qualified black Democratic incumbents who had 

virtually every conceivable endorsement.3 Of the nine contested primary and general district 

judge elections with a black candidate opposing a white candidate, the black Republican 

. candidates won all four of the races in which they campaigned, while the black Democratic 

candidates lost all five of the races in which they campaigned. (Tr. 4:106, DI-Dallas Ex. 9A) 

This statistic is even more meaningful in light of the vast majority of Dallas County’s voters

1 The only elected Democratic district judge in Dallas County was named Ron Chapman. 
Another Ron Chapman (of the Dallas based radio station KVIL, not of the Criminal Judicial 
District Court) is the host of the top-ranked morning radio show in the Metroplex. (Tr. 4:101)

2 This situation is true without regard to race, recommendation of the local Committee for a 
Qualified Judiciary, results of the local Bar poll, money spent in campaigning, and/or 
incumbency. All of the evidence from both sides is consistent on this point.

3 For example, Jesse Oliver, a black Democrat, was a former state representative from a 
predominantly minority area of Dallas. He was appointed to the district bench following a 
relatively high-visibility state senate campaign. In running for reelection he received the 
endorsements of virtually all groups that offer endorsements -- both major papers, the 
Committee for a Qualified Judiciary (a non-partisan group), the local bar poll, and numerous 
civic groups. Although he was one of the highest polling Democratic candidates in Dallas 
County, he still lost in the Bush-led Republican sweep of Dallas County. (Tr. 2:244; 2:247- 
52).

5



fsm

general unawareness of the name, office, or racial background of judicial candidates.4

Black Democratic judicial candidates fare equally as well as white Democratic judicial 

candidates, and typically do better than the top of the Democratic ticket (DI-Dallas Ex. 9A); one 

black Republican judicial candidate, Judge Carolyn Wright, led the ticket of all Republican 

candidates in Dallas County. (Tr. 4:213) Even Appellees’ vaunted expert Richard Engstrom 

was forced to admit that the evidence established that party affiliation rather than race is the best 

indicator of both the election results and which candidate would receive the support of the 

minority community. (Tr. 2:147-49). Expert witnesses for both sides of the case and most of 

the losing black Democratic judicial candidates agreed that the losing black Democratic judicial 

candidates would have won had they run as Republicans -- as they were all invited to do. (Tr. 

2:188; 5:283-84) It is abundandy true that black judicial candidates of both parties are faring 

neither better nor worse because of their race. Simply, judicial candidates in Dallas County win 

or lose due to their partisan affiliation, not their race.

It certainly also is true that black and white voters tend to show different voting patterns. 

Black Dallas County voters in judicial races tend to vote over ninety-five percent (95%) for the 

Democratic candidate, with a phenomenal ninety-three percent (93%) casting straight ticket 

votes. (Tr. 5:280) White voters tend to vote sixty to seventy percent (60-70%) for the 

Republican candidate, with a much smaller twenty-eight percent (28%) straight ticket 

Republican vote. (Tr. 5:281; DI-Dallas Ex. 16) The amazingly high level of straight ticket 

voting by black voters, coupled with the relative lack of awareness or knowledge of judicial

4 See DI-Dallas Ex. 11. This exhibit is a survey of voter awareness of Dallas County 
judges. The survey indicated that the vast majority of voters of all races were wholly unaware 
of the identity of Dallas County judges, much less the race of those judges. Amazingly, even 
when told that persons named in the survey were elected public officials, most respondents 
identified Ron Chapman as a radio disk jockey. Either the respondents believe that disk jockey 
is an elective office in Dallas, or the name recognition built up by constant advertising of the 
radio station overcame the instructions to the survey. Charts summarizing the survey data are 
found at DI-Dallas Exs. 12-14. See also Tr. 4:104-23 (testimony of Dr. Champagne regarding 
survey).

6



candidates, shows that, even in the black community, judicial candidates get black votes neither 

because of their race nor qualifications, but because of their partisan affiliation.

The facts recited above are undisputed in the record. Almost all witnesses dealing with 

Dallas County acknowledged the truth of those facts; the district court, however, chose to 

ignore them, refused to make appropriate findings requested by Judge Entz, and relied solely on 

the emperor’s garb of bivariate ecological regression analysis to justify its conclusion that 

section 2 had been violated. (November Order at 14-78) According to the 1980 Census, Dallas 

County was approximately 65% white, 19.7% black, and 15.3% Hispanic. (Tr. 4:130) In 

August, 1989, the Dallas County district bench was 91.7% white, 5.6% black, and 2.8% 

Hispanic. (Tr. 4:130; DI-Dallas Ex. 18A) Appellees’ case from top to bottom-merely was that 

this statistical “underrepresentation” proved a section 2 violation. The district court agreed. 

With no heed whatsoever to the intensely local facts and political realities extant in the various, 

highly diverse counties at issue, the district court found a section 2 violation solely on the basis 

of these meaningless statistics.

But the undisputed facts establish that nationwide, the racial composition of a district 

bench will match the racial composition of the bar from which judicial candidates are drawn, 

rather than the population as a whole, regardless of what system of judicial selection was used.5 

The undisputed evidence was that 2.2% of the lawyers in Dallas County are

5 This was based on a comprehensive study of all likely factors involved in judicial 
selection, including the method of selection. The study showed that nationwide by far the 
highest correlation and the best explanatory factor for the number of minority judges in a 
jurisdiction is the number of minority lawyers. (Tr. 4:130-32) That correlation holds true in 
Dallas County, as well as the rest of the country.

7



black. (Tr. 4:130) Dr. Champagne6 testified accordingly that the Dallas County judicial bench 

(or Texas or New York benches) would have a racial composition that paralleled the number of 

minorities in the pool of legally qualified candidates. The number of minority law students is 

increasing; as those students graduate, pass the bar, and gain experience, the percentage of 

minority judges inevitably will increase. (Tr. 4:136-38) The judicial election system which the 

District Court condemned neither caused nor impacted in any way the actual percentage of 

minorities on the bench.

The Appellees' case rested primarily upon the statistical type of proof discussed above; 

conspicuously lacking from their case was any contention or testimony that the relief sought -- 

single member districts -  would have a positive impact on the role of minorities in connection 

with the judicial system other than permitting the election of some greater number of Democratic 

judges. The most probative testimony on this point, and some of the most poignant testimony 

in the trial, came from Judge Wright of Dallas County and Judge Stums of Tarrant County. 

Both of these black Republican judges passionately believed that single member districts would 

be bad for minorities in the long term. They would lead to “black” seats on the bench, with 

public perceptions of “black” justice and “white” justice depending on the judicial district. (Tr. 

4:192-93; 5:71-72)

Black jurists, as a practical matter, would be limited to their quota of seats based on the 

number of majority-minority districts and would be unable to run from other districts. (Id.) 

The net result over time of single member districts would be a hardening of racial attitudes, 

rather than a color-blind system of justice. (Id.) That surely is not a goal to be pursued at the

6 Dr. Anthony Champagne is a professor of political science at the University of Texas at 
Dallas, specializing in judicial selection. He has published widely in the field. See, e.g., 
Champagne, The Selection and Retention of Judges in Texas, 40 Sw. L.J. 66 (1986); 
Champagne, Judicial Reform in Texas, Judicature, Oct.-Nov. 1988, at 146; see generally DI- 
Dallas Ex. 3 (Champagne vita). Dr. Champagne testified as an expert witness for Judge Entz.

8



expense of a system, on a statewide basis, that even the district court acknowledged “has, for 

the most part, served us well for many years.” (November Order at 6)

SUMMARY OF THE ARGUMENT

In the aftermath of the Supreme Court’s HIA decision, it is apparent that the district court 

erred in its failure to consider Texas’ compelling interest in the structure of its state judiciary. 

Under a proper analysis, assuming the plaintiffs crossed the Gingles threshold, the court should 

consider first whether the state interest in the challenged practice is legally compelling. If so, 

the state interest prevents a section 2 violation.7 8 Here, because the challenge relates to an 

institution fundamental to state sovereignty, and because either piece-meal or complete alteration 

of the challenged practice would result in unseemly federal entanglement in the operation of the 

judiciary, the state interest at stake is compelling. Were Texas’ interest less than compelling, 

then the district court should have proceeded to weigh that interest, along with all other factors 

(again, assuming Gingles is met), to determine whether the plaintiffs proved dilution by clear 

and convincing evidence.

Now' that the Supreme Court has held that section 2 applies to the judiciary, this Court 

may also be required to address whether such application is constitutional. Section 2 was 

enacted in response to the Supreme Court’s construction of the fifteenth amendment and the 

pre-1982 Voting Rights Act as defined in City of Mobile v. Boldenf Congress’ amendment of 

section 2, to delete any intent requirement in favor of a vague and undefined “results test,” 

exceeds its constitutional power. Alternatively, if section 2 itself is proper, its application to 

Texas’ judiciary violates fundamental principles of federalism and the intrinsic sovereign power 

of state government. Though there are constitutional limits on the power of state governments 

to order their own affairs, there similarly are constitutional limits on the power of the federal

7 42 U.S.C. § 1973.

8 446 U.S. 55 (1980)

9



government to dictate the structure of core characteristics of state government. If section 2 truly 

applies to void the basic structure of the state judiciary -  even though the system clearly passes 

constitutional muster -- then section 2 violates the residue of inviolable state sovereignty.

Even if section 2 as applied were constitutional, it was misapplied in this case. Among 

other errors, the district court applied a definition of racially polarized voting squarely contrary 

to this Court’s definition in Monroe v. City of Woodville,9 which requires voting to be 

polarized by the race of the candidate. Accordingly, the plaintiffs never even crossed the 

Gingles threshold. Moreover, the court failed to assess the degree of minority success with the 

proper baseline — in relation to the pool of legally qualified candidates -- which demonstrated 

that no minority underrepresentation exists. And, finally, the district court simply reached the 

wrong conclusion based on the evidence at trial.

ARGUMENT

I. THE DISTRICT COURT FAILED TO 
CONSIDER COMPELLING STATE INTERESTS

A. A Properly Compelling State 
Interest Can Prevent a Section 2 Violation

1. A Compelling State Interest Outweighs All Other Factors in the Totality of 

Circumstances. — Justice Stevens concluded in the Supreme Court's majority opinion that 

“[the] State’s interest in maintaining an electoral system . . .  is a legitimate factor to be 

considered by courts among the ‘totality of the circumstances’ in determining whether a § 2 

violation has occurred.” HLA, 111 S. Ct. at 2381. Indeed, the Court noted that “the Fifth 

Circuit has expressly approved the use of this particular factor” in its earlier constitutional vote 

dilution analysis in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), affd on other 

grounds, 424 U.S. 636 (1976) (per curiam). Id. While stopping short of finding that such 

justifications automatically prevents either a constitutional vote dilution finding or a section 2

9 881 F.2d 1327, modified, 897 F.2d 763 (5th Cir. 1989), cert, denied 111 S. Ct. 71
(1990)



violation, Justice Stevens certainly implied that this one factor alone can lead to the conclusion 

that no violation has occurred.10 Id. Because of the unique and compelling justifications for 

the State of Texas’ and Dallas County’s current system of judicial administration -  justifications 

not considered by the district court — Appellees cannot meet their burden in establishing a 

section 2 violation.

Balancing a state’s interest against even alleged constitutional violations is nothing new. 

It is consistent with first amendment cases. See, e.g., Posadas de Puerto Rico Assoc, v. 

Tourism Co. o f Puerto Rico, 478 U.S. 328, 334 (holding that the Puerto Rico legislature’s 

substantial governmental interest in protecting the public health, safety, and welfare justifies 

infringing the speech rights of its citizens); Snepp v. United States, 444 U.S. 507, 512 (1980) 

(finding a compelling governmental interest in restricting free speech to protect the secrecy of 

information important to national security); F.C.C. v. Pacifica Foundation, 438 U.S. 726, 749 

(1978) (affirming that the government's interest in the “well-being of its youth” justified the 

infringement on otherwise protected rights to free expression).

It also is consistent with equal protection cases. See Sugarman v. Dougall, 413 U.S. 

634, 648 (1973) (the tenth amendment gives states the power and responsibility to establish 

“not only the qualifications of voters, but also to persons holding state elective or important 

nonelective executive, legislative, and judicial positions [because that goes] to the heart of 

representative government.”); Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982) (even a 

lower level of scrutiny applied when dealing with “matters resting firmly within a state’s 

constitutional prerogative and constitutional responsibility for the establishment and operating of 

its own government”); Gregory v. Ashcroft, 111 S.Ct. 2395 (1991) (citing Sugarman).

Because a compelling state interest can outweigh what would otherwise be a constitutional 

violation, it is axiomatic that such interest can override legislation that provides remedies where l

l o “[T]he State’s interest may preclude.. .a finding that vote dilution has occurred— ”

11



no constitutional violation exists. Indeed, a state interest may not need to be compelling to 

override a mere statutory violation.11 The Court need not address that question today, as 

Texas’ interest in its judicial system is compelling, and, as a matter of law, overcomes 

Appellees’ scant proof of a section 2 violation.11 12

2. A Two-Part Test Should Be Used to Identify Compelling Interests Under Section 2. — 

Judge Entz believes that state interest is compelling if it meets a two prong test. The first 

inquiry is whether the articulated interest relates to a central aspect of state sovereignty. In the 

instant case, it undoubtedly does. Under our federal system “[ejach State has the power to 

prescribe the qualifications of its officers and the manner in which they shall be chosen.” Boyd 

v. Thayer, 143 U.S. 135, 161 (1892). And as the Supreme Court recently stated in Gregory v. 

Ashcroft, 111 S.Ct. 2395 (1991), it is within the “authority of the people of the States to 

determine the qualifications of their most important government officials. It is an authority that 

lies at ‘the heart of representative government.’ (citations omitted) It is a power reserved to the 

States under the tenth amendment and guaranteed them by that provision of the Constitution 

under which the United States [guarantees] to every state in this Union a Republican Form of 

Government.” Id. at 2402. As in Gregory, plaintiffs’ attacks on the manner in which Texas’ 

judges are elected cuts to the very' heart of the function of the office. As will be shown, 

changing the manner of election completely changes the character of the judgeship.

The second prong inquires whether federal interference with the admittedly important state 

interest would result in undue federal entanglement with the operations of state government. 

Cf. Lemon v. Kurtzman, 403 U.S. 602 (1971) (statutes that unduly entangle the government in

11 Title VII provides a helpful analogy on this point. A business’ justification for its 
challenged practice need not be “essential” or “indispensable” to the employer’s business. The 
business only need show the challenged practice serves in a significant way, its legitimate 
employment goals of the employer. Wards Cove Packing Co. v. Antonio, 109 S. Ct. 2115, 
2121 (1989); Griggs v. Duke; 91 S. Ct. 849, 854 (1971).

12 This Court should adopt this construction of section 2 to avoid difficult constitutional 
issues. Crowell v. Benson, 285 U.S. 22, 62 (1932).

12



religion affairs violate the first amendment). As will be shown below-, any alteration to Texas’ 

judicial electoral system will require the federal government, at minimum, to rewrite Texas’ 

rules of jurisdiction, venue, specialization, and docket control. It will require federal 

entanglement in the minutia and details of the judicial function in Texas.

If both prongs are met, “[sjtated in equal protection terms, there is compelling necessity 

sufficient to overcome the strict scrutiny of state acts impinging upon a fundamental interest.” 

League of United Latin American Citizens Council #4434 v. Clements, 914 F.2d 620, 646 (5th 

Cir. 1990) (en banc) (Higginbotham, J., concurring) (“LULAC”). The inevitable conclusion, 

consistent with other constitutional litigation, is that a compelling state interest, considered in 

the totality of the circumstances, prevents a section 2 violation.

B. Dallas County's Current System of Judicial 
Administration Protects Compelling State Interests

As Judge Higginbotham expressed in his concurrence, the Texas system of judicial

administration is a “one-judge, one court organization at the trial level with rigid jurisdictional

lines.” LULAC, 914 F.2d at 649. The system is a complex mechanism, refined over the

course of almost one hundred and fifty years. It is anchored by numerous and intricate rules

and procedures that establish the function of the office and provide the balanced character of the

office that Texans desire, all of which are inextricably intertwined with the selection method. It

should not be disturbed.

[Bjecause the fact and appearance of independence and fairness are so central to 
the judicial task, a state may structure its judicial offices to assure their presence 
when the means chosen are undeniably directly tailored to the objective. The 
choice of means made by Texas. . .defines the very manner by which Texas’ 
judicial services are delivered at the trial court level. . . . Nothing in the Voting 
Rights Act grants federal courts the power to tamper with these choices.

LULAC, 914 F.2d at 646 (Higginbotham, J. concurring).

The system as a w-hole protects a number of rights and interests; and even the Department

of Justice agrees -- section 2 does not grant federal courts the authority to dismantle this system.

Section 2 is broad in its reach, but there is no reason to believe that, in 
passing the amendment in 1982, Congress sought to alter the fundamental nature 
of judicial office established by the State or require a method of election that

13



irreconcilably conflicts with those offices. After all, Section 2 is addressed to 
voting practices, not to the definition of state offices. Thus, if Texas consistently 
elects trial or appellate judges at-large in order to ensure the appearance of fairness 
and impartiality in the judicial process, its interest may not be just ‘strong’ but 
‘compelling.’

Brief for the United States as Amicus Curiae Supporting Reversal at 17-23, Houston Lawyers’ 

Ass’n. v. The Attorney General of Texas and League of United Latin American Citizens v. The 

Attorney General o f Texas, Nos 90-813 and 90-974, In the Supreme Court of the United 

States, October Term, 1990.

1. The Present System Reflects Texas’ Citizens’ Expression of Self Government. — 

Texas, as is its prerogative as a sovereign member of this republic, has chosen a judicial 

system, consistent with the desires and will of its people, that strikes a balance between 

independence and accountability of its judiciary. It chose from many alternatives, ranging from 

lifetime, nonpolitical appointments to election by ward. The system Texas has chosen 

peculiarly renders judges accountable to the electorate over whom they principally preside, yet 

provides substantial independence by assuring that their domain is expansive enough that it 

cannot be dominated by a small, narrow interest group (without regard to race).

Thus, Texas’ system of judicial administration not only “protects the appearance, if not 

fact, of its judicial independence -- a core element of a judicial office,” LULAC, 914 F.2d at 

650, it actually assigns a desired, specific degree of independence and accountability. It reflects 

a reasoned choice concerning the very character of the judicial office. The State of Texas is 

empowered to make this choice and to define the role of its judiciary without unreasonable 

federal interference. In fact, the Supreme Court recently recognized the importance of a state's 

right to determine the nature of the offices of its governmental officials, deeming such authority 

at “the heart of representative government.” Gregory v. Ashcroft, 111 S. Ct. 2395, 2402 

(1991). Dallas County’s insisted linkage of elective base and jurisdiction is a fundamental 

interest, an interest that justifies a strong presumption against radically changing “the very office 

of district judge, a result not contemplated by the Voting Rights Act.” LULAC, 914 F.2d at 

650.

14



Unlike a legislative body, whose core state function is unaltered by changing the'manner 

in which its members are elected, altering Texas’ judicial selection system not only markedly 

skews its balanced philosophy of judicial accountability, but it completely turns the entire 

judicial process on its head. For example, currently, the 37 district judges in Dallas County 

have jurisdiction over the entire county from which they are elected. If they are elected by 

subdistricts, yet maintain their county-wide jurisdiction, they will inevitably then be forced to 

preside in cases over litigants who live in subdistricts other than the one from which they were 

elected. As a result, not only would Texas' interest in its balance of accountability and 

independence be thrown out of whack, but the litigants would be disenfranchised. Any Federal 

intrusion into Texas’ procedural rules to address these problems simply cannot accommodate 

both interests.

To accommodate the litigants’ (voters’) interest, a court’s jurisdiction only would 

encompass only his or her subdistrict. In addition to completely altering the character of Texas’ 

judiciary, this imposition of new jurisdictional rules -- created from whole cloth — compounds 

the frustrations of Texas’ interest in its judiciary and would require even more extensive 

intrusion. For example, if judges could preside over only cases that involved litigants from 

their subdistrict, Dallas County's random case assignment method also would have to be 

abolished. Moreover, the federal government would have to create, again, out of whole cloth, a 

system of intra-county venue rules.

What venue system would be established to govern in what court the filed cases would be 

heard? Will venue lie in the subdistrict in which the plaintiff resides, where the defendant 

resides, or where the cause of action arose? What happens when these putative venue rules 

result in 15 hopelessly swamped Dallas judges, with the rest absolutely idle? Who will and 

how will the dockets be equalized? Will jurors come from subdistricts? What will happen to 

the racial composition of jurors?

In short, federal intrusion in the way judges are elected, as opposed to legislators, topples 

the entire system. Everything must change. And every change is fraught with difficulty,

15



frustrates the states interest in a core function, and is an embarrassing intrusion by the federal 

government into the minutest details of state government.

2. The Present System Protects Litigants from Disenfranchisement. — The alternative 

to rewriting Texas’ procedural rules is to disenfranchise Texas’ voters. Under the current 

system, a Dallas County resident who appears before a Dallas County trial judge had the 

opportunity to vote for that judge. As an alternative to the current system, subdistricting 

without the intrusions discussed above -- would require a trial judge to exercise their full 

authority alone, but with authority derived from voters representing only a fraction of the 

judge’s electoral base. L U L A C  at 650. The result is illegal, unconstitutional 

disenfranchisement. Litigants inevitably would have their cases heard by judges for whom they 

had no opportunity to vote. See Cipriano v. City of Houma, 395 U.S. 701, 706 (1969) 

(holding that nonproperty owners prevented from voting in a municipal bond election were 

effectively disenfranchised from their substantial and direct interest in the matter voted on); see 

also City of Phoenix v. Kolodziejski, 399 U.S. 204, 213 (1970) (the exclusion of nonproperty 

owners from elections approving obligation bonds violated the Equal Protection Clause).

3. The Present System Protects The Rights Of Criminal Defendants. — Jury pools in 

Dallas County are drawn from the entire county. This system complies with an accused’s right 

to trial before a jury from the judicial district “in which the offense arose.” U.S. CONST. 

AMEND. IV; United States v. Dickie, 775 F.2d 607 (5th Cir. 1985). Thus, under the present 

system, an accused will stand trial before a jury selected from the same judicial district. Any 

alternative system would likely require an accused from one district to stand trial before a jury 

consisting of persons from four or five different districts, for a crime committed in a completely 

different district. Unless the fourth amendment has been abrogated by Congress’ revision of 

section 2, this would be an illegal system.

4. The Current System Allows Judges to Specialize. — Dallas County judicial 

candidates seek either civil, criminal, family, or juvenile benches. The state has chosen this 

system for its voters, and its citizens involved in the judicial process, in the belief that it allows

16



for more efficient dispensation of justice. As our courts become increasingly overcrowded, and 

our law more complex, forced despecialization could be a crippling backward step. It could 

well lead to a virtual shutdown of the civil courts, as has happened in some federal courts. 

Errors will compound, as judges simply will be unable to keep abreast of the fast changes in the 

law, resulting in grid-lock in the appellate courts.

The district court disagreed. In fact, it sought to strike down the specialization system 

altogether.

In the mind of this Court [specialization] is wrong. . . . They are not intellectually 
inferior to judges who hear civil, criminal and domestic cases. . . . Judges are 
capable of rendering fair, honest and just decisions without concentrating on one area 
of law.

November Order at 78. Specialization defines the office, and is, therefore, a compelling state 

interest. With respect to the district court, it is the citizens of Texas who chose specialization, 

and their system should not be lightly brushed aside because any one federal judge disagrees 

with Texas’ experiment.

5. The Present System Protects Minority Representation. — The election and 

administration of the Dallas County trial judges permits voters of all races to influence every 

judicial election in Dallas County. An alternative system would create situations where minority 

litigants would appear before judges elected with very little minority influence and vice versa. 

LULAC at 651. By ensuring that minorities influence the outcome of each election, the present 

system makes the votes of a growing minority community count. An alternative system merely 

would fix geographical and racial power and influence over judicial elections for all time — and 

actually limit the numbers of judicial benches possible for a growing minority population.

C. Even Were Texas' Interest Not Compelling 
the District Court Must Still be Reversed 

fo r a Proper Assessment of Texas' Interest

The Supreme Court clearly indicated that the state’s interest is a positive factor that should

be considered in the totality of the circumstances. For example, Justice Stevens concluded in

the Supreme Court's majority opinion that “[the] State’s interest in maintaining an electoral

17



system . . .  is a legitimate factor to be considered by courts among the ‘totality of the 

circumstances’ in determining whether a § 2 violation has occurred.” HLA, 111 S. Ct. at 2381. 

Likewise, the Court approvingly observed that “the Fifth Circuit has expressly approved the use 

of this particular factor” in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), a ff d on 

other grounds, 424 U.S. 636 (1976) (per curiam). HLA, 111 S. Ct. at 2381. Although Title 

VII cases are helpful by analogy with respect to causation and statistical analysis,13 its 

“mechanical” test, employing shifting burdens of production, is inconsistent with the totality of 

the circumstances test. Under section 2’s test, “there is no requirement that any particular 

number of factors be proved, or that a majority of them point one way or the other.” Thornburg 

v. Gingles, 478 U.S. 30, 45 (1986); 1982 U.S. CODE & CONG. ADMIN. NEWS 177, p. 

207. It purports to be a flexible test, depending on “a searching practical evaluation of past and 

present reality, and on a ‘functional’ view of the political process.” Id.

Thus, the test is employed by adding all relevant factors into the mix. They are all cooked 

together and when done, either a violation exists or it does not. Any artificial overlay of 

mechanics on the process would be inconsistent with both the Supreme Court’s and Congress’ 

explanation of the test.

The district court did not consider the interests of Dallas County and the State of Texas as 

a factor mitigating against liability; rather, it merely concluded that the plaintiffs failed to

13 The proper statistical analysis should not compare percentages of the general minority 
population with those who attain electoral success. Rather, the statistical comparison should be 
between the percentage elected and the percentage of those qualified to be elected. Richmond v. 
JA . Croson Co., 109 S. Ct. 706, 725 (1989). With respect to causation:

A Title VII plaintiff does not make out a case of disparate impact simply by 
showing that, “at the bottom line,” there is a racial imbalance in the work force.
As a general matter, a plaintiff must demonstrate that it is the application of a 
specific or particular employment practice that has created the disparate impact 
under attack. Such a showing is an integral part of the plaintiff s prima facie case 
in a disparate impact suit under Title VII.

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

18



establish tenuousness. See November Order at 75-78. Because the Supreme Court has clearly 

stated that these state interests are factors that should be considered distinctly from a 

consideration of tenuousness, the district court did not properly analyze the totality of 

circumstances.

II. AN APPLICATION OF SECTION 2 TO 
TRIAL JUDGES WOULD BE UNCONSTITUTIONAL

A. Application of Section 2(b) to Texas’
State Judiciary Would Unconstitutionally 

Impinge on Intrinsically Sovereign Matters

1. States Retain a Residual Core of Sovereignty' Into Which The Federal Government 

Cannot Intrude. — For a federal court to dismantle Texas’ judicial system would be an 

unconstitutional intrusion by the federal government into matters of paramount importance to 

the sovereign state government, in violation of the tenth amendment, the Guaranty Clause, and 

fundamental principles of federalism.14

The judiciary is an essential governmental function of the states, at “the heart of 

representative government,” Gregory v. Ashcroft, 111 S.Ct. at 2402, and dismantling it 

“would hamper the state government’s ability to fulfill its role in the Union and endanger its 

separate and independent existence.” United Trans. Union v. Long Island RF. Co., 455 U.S. 

678, 687 (1982); see also Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528, 549 

(1985) cert, denied 488 U.S. 889 (1988) (although overturning National League of Cities, the 

Court recognizes that states occupy a special position in the constitutional system and they do 

retain a significant amount of sovereign authority); Coyle v. Smith, 221 U.S. 559 (1911) 

(noting restrictions on Congress’ ability to prescribe fundamental details of state government * 111

14 Judge Entz acknowledges that the 14th and 15th Amendments place limitations on the 
power of states; they did not abolish federalism, however. “Whenever constitutional concerns. 
. .  come in conflict.. .  it is and will remain the duty of this Court to reconcile these concerns in 
the final instance.” Garcia v. San Antonio Metro. Transit Authority\  469 U.S. 528, 589 
(1985), cert, denied 488 U.S. 889 (1988) (O'Connor, J., dissenting); Gregory' v. Ashcroft,
111 S.Ct. 2395 (1991).

19



such as location of state capitol). As this Court declared in Texas v. White, 74 U.S. 700

(1868), “the preservation of the States, and the maintenance of their governments, are as much

within the design and care of the Constitution as the preservation of the Union and the

maintenance of the National Government.” Id. at 725. Further, as Justice Black noted in his

majority opinion in Oregon v. Mitchell, 400 U.S. 112 (1970).

No function is more essential to the separate and independent existence of the 
States and their governments than the power to determine within the limits of the 
Constitution the qualifications of their own voters for state, county, and municipal 
offices and the nature of their own machinery for filling local public offices.

Id. at 125.

Consequently, the federal government should tread lightly, granting substantial leeway to 

the states’ establishment and maintenance of judicial systems. As shown, implementation of an 

alternative to the present system will involve the federal courts in dictating the finest details of 

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

systems of judicial specialization. As Judge Higginbotham stated, “subdistricting would work 

a fundamental change in the scheme of self governance chosen by the State of Texas, for it 

would change the authority behind the decision-making body of Texas Courts -  and in doing 

so it would retard, not advance the goals of the Voting Rights Act.” LULAC, 914 F.2d at 651 

(Higginbotham, J., concurring).

Although states must defer in many respects to the federal government, states still have a 

residue of sovereignty that the federal government cannot disturb. To force wholesale, untested 

and perhaps unworkable changes upon a state judicial system based upon the sociologically- 

distorted, mathematical vote dilution “proof’ plaintiffs offered, would violate the tenth 

amendment, the fourteenth amendment, the Guaranty Clause, and fundamental principles of 

federalism and separation of powers. And although the fourteenth amendment is an inherent 

restriction on state power, the Supreme Court has recently acknowledged that state sovereignty 

is entitled to deference even against that Civil War amendment: “this Court has never held that 

the [Fourteenth] Amendment may be applied in complete disregard for a State’s constitutional

20



powers. Rather, the Court has recognized that the States’ power to define the qualifications of 

their officeholders has force even as against the proscriptions of the Fourteenth Amendment.” 

Gregory v. Ashcroft, supra, 111 S. Ct. at 2405.15

2. Application of Section 2(b) to State Judges Would Impermissibly Intrude on the 

Operation of the State Judiciary. — As discussed in Section I, the current system of judicial 

administration in Dallas County supports fundamental state interests. A remedy in this case 

necessarily must involve either altering fundamental characteristics of that system, such as 

county-wide venue and jury selection, or attempting to preserve those features while changing 

elections to smaller than county-wide districts. The district court's proposed interim remedy 

followed this latter approach. In either case, the remedy would entail immense intrusion into 

the finest details of Texas’ administration of its judicial system and would be unconstitutional.

The only alternative to avoiding those problems is to alter the current systems of court 

specialization, jury selection, venue, and court administration, which presents the constitutional 

problem of undue intrusion into core features of state government.16 Although states’ rights are

15 Congress’ ability to interfere with the operation of state government under the supposed 
authority of the fourteenth or fifteenth amendment is even more questionable since section 2 is 
outside the scope of the amendments’ literal protections, and the district court found no 
constitutional violation. The fourteenth and fifteenth amendments protect only against 
intentional discrimination. See City' of Mobile, supra. The amended section 2, in contrast, 
purportedly reaches unintentional action that affects the results in elections. If that is a 
permissible exercise of congressional power to begin with, see infra, it surely is at the nadir of 
Congress’ power, and the power of a statute to displace sovereign state governmental functions 
must be correspondingly reduced.

16 At prior stages of this case, Appellees have suggested that other alternative remedies, such 
as cumulative or limited voting, would avoid these infirmities. What they neglect is that courts’ 
remedial powers in Voting Rights Act cases do not extend to imposing experimental forms of 
voting upon a state. See Wise v. Lipscomb, 437 U.S. 535, 540-41 (1978) (noting 
“requirement that federal courts, absent special circumstances, employ single-member districts 
when they impose remedial plans”) Martin v. Mabus, 700 F. Supp. 327, 336-37 (S.D. Miss. 
1988) (declining to impose limited voting plan court viewed as “experimental”). Admittedly, it 
is possible that the State of Texas could invent some entirely different form of judicial selection 
and administration that would avoid the constitutional pitfalls of a single member remedy; the 
need for such invention, however, simply heightens the unconstitutional intrusion into core 
(continued on next page)

21



limited by the Civil War amendments and by other powers expressly delegated to the federal 

government, the states do retain the rights to govern themselves with respect to the basic 

elements of governance. Recent case law explicitly recognizes that a state’s right to determine 

the nature of its governmental office is a power reserved to the states under the tenth amendment 

and guaranteed them by that provision of the Constitution under w-hich the United States 

“guarantee^] to every state in this union a Republican form of government.” Gregory v. 

Ashcroft, 111S. Ct. 2395, 2402 (1991) (quoting U.S. Const., Art. IV, § 4).

Texas has over the years developed an intricate machinery for the administration of justice 

that fully complies with all constitutional requirements. Simply yanking out a part or two -- 

county wide elections -- produces a machine that does not work, i.e., that is not constitutional. 

The alternative of redesigning the system entirely is not a legitimate task for the federal 

government or a federal judge.17

B. Applying Section 2(b) to Judges 
Violates Principles of Separation of Powers

The suggested application of Section 2(b) to state district judges would abolish substantial 

distinctions between the executive, legislative and judicial branches. That is contrary to the 

finely-honed balance of powers (and counter-balancing of the natural human desire for power, 

if left unchecked) that the federal constituted embodies. See, e.g., THE FEDERALIST No. 9, 

at 51 (A. Hamilton) (J. Cooke ed. 1961); id. No. 47, at 323 (J. Madison); id. No. 48, at 335 

(J. Madison). Texas had a similar, clear separation of powers ingrained in its organic 

framework. See TEX. CONST, art. II, § 1.

concerns of a sovereign state government that application of the statute to the judiciary would 
have.

17 “It is hard to envision any area hang closer to the core of state concerns than the process 
by which it selects its own officers and functionaries. Any federal trenching here strikes at 
federalism’s jugular; and such a radical federal trenching as is contended for today should 
therefore demand a very clear statement indeed.” LULAC, 914 F.2d at 630-31.

R
fa#

22



At the core of every state’s government is the judiciary. Whether appointed or elected, the 

judiciary is the arbiter of the citizens’ disputes, the forum for victims of crime, and the protector 

of its citizens’ fundamental rights and freedoms. While the legislative and executive branches 

are in perpetual flux, according to the rough and tumble political whims of the times, the 

judiciary is intended to be more constant. See LULAC, 914 F.2d at 625-26. The legislative 

and executive branches rightfully may be partial, but as Judge Gee stated, “the judiciary serves 

no representative function whatever: the judge represents no one.” Id. at 625. Judge 

Higginbotham in his concurring opinion in LULAC explained that “requiring subdistricting for 

purposes of electing district judges, unlike other offices, would change the structure of the 

government because it would change the nature of the decision-making body and diminish the 

appearance if not fact of its judicial independence a core element of a judicial office.” 

LULAC, 914 F.2d at 650 (Higginbotham, J., concurring).

The Appellees would classify particular judges as accountable to the majority sentiment in 

small, legislative subdistricts from which they were to be elected. Such a result is directly 

contrary to the foundation of our system of government in which “the legislative, executive and 

judiciary departments should be separate and distinct, so that no person should exercise the 

powers of more than one of them at the same time.” THE FEDERALIST No. 48, at 335 (J. 

Madison) (J. Cooke ed. 1961). Texas incorporates the same concept. See TEXAS CONST, 

art. II. § 1. Congress surely did not mean to strike from Texas’ “separation of powers” the key 

concept so carefully woven in the federal constitution and extended to the states through the 

Guaranty Clause.18

18 “Judicial power” as used in Texas’ constitution, see art. V § 1, does not mean to be a 
representative of the people. That is what the state Senators and Representatives do in making 
laws. In fact, Article II specifically provides that no person associated with one branch “shall 
exercise any power properly attached to either of the others.”

TO

23



Judge Gee, quoting Professor Eugene Hickok, accurately summarizes Judge Entz’s 

argument:

The judiciary occupies a unique position in our system of separation of powers, 
and that is why the job of judge differs in a fundamental way from that of a 
legislator or executive.. . .  If a member of congress serves to make the law and a 
president to enforce it. In this process, it is quite possible for a judge to render a 
decision which is directly at odds with the majority sentiment of the citizens at any 
particular time. . . . Indeed, it can be argued that the quality most needed in a 
judge is the ability to withstand the pressures of public opinion in order to ensure 
the primacy of the rule o f law over the fluctuating politics of the hour.

LULAC, 914 F.2d at 626 (quoting Hickok, Judicial Selection: The Political Roots of Advice

and Consent in JUDICIAL SELECTION: MERIT, IDEOLOGY AND POLITICS 5 (1990),

emphasis added).

C. The 1982 Amendments to Section 2 Were 
Not A Valid Exercise of Congress' Authority

The Supreme Court has never considered whether the 1982 amendments to section 2 were 

a valid exercise of congressional authority. “Nothing in today’s decision addresses the question 

whether § 2 . . .  is consistent with the requirements of the United States Constitution.” HLA at 

2376 (Kennedy, J., dissenting) Prof. Lawrence Tribe, never one to be mistaken for a 

conservative constitutional scholar, notes that there is real doubt on that question. L. TRIBE, 

AMERICAN CONSTITUTIONAL LAW § 5-14, at 340 (2d ed. 1988). Congress itself 

seriously questioned the constitutionality of the section 2 amendments. In fact, the 

Subcommittee on the Constitution concluded in its report that the proposed amendment was 

unconstitutional for three reasons.

First, Congress cannot outlaw discriminator},' results under the fifteenth amendment, since 

the Supreme Court has stated that only discriminatory intent was prohibited.19 * Second, unlike

19 “To the extent. . . that the Supreme Court has construed the Fifteenth Amendment to 
require some demonstration of purposeful discrimination in order to establish a violation, and to 
the extent that Section 2 is enacted by Congress under the constitutional authority of the 
Fifteenth Amendment, the Subcommittee does not believe that Congress is empowered to 
legislate outside the parameters set bv the Court, indeed by the Constitution.” 1982 U.S.
CODE CONG. & ADMIN. NEWS 177, 342-43 (COMMITTEE ON THE JUDICIARY’S 
(continued on next page)

24



section 5, there was no fact finding by Congress that section 2 was necessary as a nationwide 

remedial measure. Without such a fact finding, Congress even questioned if section 2 could 

qualify as a “remedial” measure.20 Additionally, section 2 has an unconstitutional retroactive 

effect.21

SUBCOMMITTEE ON THE CONSTITUTION, REPORT ON S. 1992 TO AMEND THE 
VOTING RIGHTS ACT OF 1965, attached as exhibit to Additional View's of Senator Hatch, S. 
REP. NO. 417, 97th Cong., 2d Sess. 94 (1982).

20 “While proponents of the new results test argue that selected Supreme Court decisions 
exist to justify the expansive exercise of Congressional authority proposed here this 
subcommittee rejects these arguments. No Court decision approaches the proposition being 
advocated here that Congress may strike down on a nationwide basis an entire class of laws that 
are not unconstitutional and that involve so fundamentally the rights of republican self- 
government guaranteed to each state under Article IV, section 4 of the Constitution.

“It must be emphasized again that what Congress is purporting to do in Section 2 is 
vastly different than what it did in the original Voting Rights Act of 1965. In South Carolina v. 
Katzenbach, the Court recognized extraordinary' remedial powers in Congress under Section 2 
of the Fifteenth Amendment. Katzenbach did not authorize Congress to revise the nation's 
election law's as it saw fit. Rather, the Court there made clear that the remedial power being 
employed by Congress in the original Act was founded upon the actual existence of a 
substantive constitutional violation requirement some remedy . . . While Katzenbach and later 
City o f Rome held that the extraordinary powers employed by Congress in Section 5 were a 
clearly remedial character, and therefore justified the extraordinary procedures established in 
Section 5, there is absolutely no record to suggest that the proposed change in Section 2 
involves a similar remedial exercise. Because Section 2 applies in scope to the entire Nation, 
there is the necessity of demonstrating that the ‘exceptional’ circumstances found by the 
Katzenbach court to exist in the covered jurisdictions in fact permeated the entire Nation 
(although again by its very' definition the concept of ‘exceptionality’ would seem to preclude 
such a finding).

“There has been no such evidence offered during either the House of Senate hearings. 
Indeed, the subject of voting discrimination outside the covered jurisdictions has been virtually 
ignored during hearings in each chamber. Indeed as the strongest advocates of the House 
measure themselves argued, a proposed floor amendment to extend preclearance nationally was 
‘ill-advised’ because no factual record existed to justify this stringent constitutional 
requirement.” Id. at 343-44.

21 "Moreover, a retroactive results test of the son contemplated in the House amendments to 
section 2 (the test would apply to existing electoral structures as well as changes in those 
structures) has never been approved by the Court even with regard to jurisdictions with a 
pervasive history of constitutional violations. In South Carolina v. Katzenbach, the prospective 
nature of the section 5 process (applicable only to changes in voting laws and procedures) was 
essential to the Court's determination of constitutionality. This was closely related to findings 
by Congress that governments in certain areas of the country were erecting new barriers to 
minority participation in the electoral process even faster than they would be dismantled by the 
courts. Thus, even w'ith regard to covered jurisdictions, the Court has never upheld a legislative 
enactment that would apply the extraordinary' test of section 5 to existing state and local laws 
and procedures." Id. at 344-45.

25



D. Section 2 is Unconstitutionally Vague

Although this Court has once addressed the vagueness issue in Jones v. City o f Lubbock, 

727 F.2d 364, 372 (5th Cir. 1984), HLA has changed section 2’s application, as illustrated 

above, so Jones should be revisited. Additionally, Judge Entz’s attack differs from the City of 

Lubbock’s in Jones. The problem with section 2 is not that it gives cities inadequate notice of 

how a government may structure its electoral systems to insulate them from attack (as the City 

of Lubbock argued). That is easy; simply gerrymander single-member districts to whatever 

extent is necessary to assure proportional representation, or as near proportional representation 

as is possible for all minority groups. Rather, the glaring shortcoming of section 2 is that the 

potential factors.considered are so broad, and judges applying the law are given so much 

discretion in considering the totality of the circumstances on an “ad hoc and subjective basis,” 

that the danger of “arbitrary and discriminatory application exists.” Groyned v. City of 

Rockford, 408 U.S. 104, 109 (1972).

Because no mechanical test applies — no one factor or set of factors is required for a 

violation -  and because the courts necessarily are to balance vague, subjective factors, section 

2, as constructed is impermissibly vague. There simply is no test. Once Gingles has been 

crossed, the district court’s discretion is completely unbridled. The instant case is a prime 

example. For the totality of the circumstances, the district court simply judicially noticed a 

history of discrimination in Texas -- without finding how it impacted on the specific case — and 

held that section 2 had been violated. If that truly is the standard, then it is no standard at all. 

See also Papachristou v. City of Jacksonville, 405 U.S. 156, 165 (“It certainly would be 

dangerous for a [law to] set a net large enough to catch all possible offenders and leave it to the 

courts to step inside and say who [has violated the law and who has not],” quoting United 

States v. Reese, 92 U.S. 214, 221 (1875)).

26



E. If  the District Court Properly Applied 
the Voting Rights Act, that Act Is Unconstitutional

1. The Voting Rights Act Is Unconstitutional Unless the Race of the Candidate Matters. — 

Under the Fifth Circuit's Monroe v. City ofWoodville opinion, racially polarized voting under 

the Voting Rights Act means that the race of the candidate determines the polarization. This is 

not only the law, it is the only interpretation that is constitutional. Otherwise, the Voting Rights 

Act could be twisted to protect the interests of political parties -  in this case the Dallas County 

Democratic party — rather than racial minorities. As Justice White said in his concurring 

opinion in Gingles, Justice Brennan’s analysis would work to advance “interest group politics 

rather than a rule hedging against racial discrimination.” Gingles, 106 S. Ct. at 2784.

The remedy Appellees seek with respect to Dallas County would advance the prospects of 

the local Democratic party rather than the black population. This reading of the Voting Rights 

Act takes out the concept of protecting minorities against voting polarized against them because 

of the race of their candidate and substitutes a view that partisan preferences of political groups 

are to be protected; such a view would unconstitutionally interfere with the political process. 

See Whitcomb v. Chavis, 403 U.S. 124 (1971); United Jewish Organizations of 

Williamsburgh v. Carey, 430 U.S. 144 (1977). But cf. Davis v. Bandemer, 478 U.S. 109 

(1986).

2. The Voting Rights Act Is Unconstitutional Unless it Requires a Causal Link Between 

the Challenged Practice and the Claimed Harm. -- The Voting Rights Act should provide a 

remedy only for electoral practices that caused the lower representation of minorities, because it 

otherwise would be unconstitutional. Appellees failed to prove that the system of county-wide 

election of district judges in Dallas County caused any alleged electoral failure of black judicial 

candidates. All Appellees proved is that, in the 1980s, Republicans have dominated the district 

bench. They have argued that a system designed to end this domination would lead to the 

election of more black judges.

Providing a remedy under section 2 under these circumstances — a case in which the 

challenged practice is not the cause of the claimed harm -  would render it an unconstitutional

27



affirmative action program designed to provide relief merely upon a showing that a change in an 

electoral practice might increase the success of black candidates. City o f Richmond v. JA. 

Croson Co., 488 U.S. 469 (1989); Regents of the University o f California v. Bakke, 438 U.S. 

265 (1978).

III. THE DISTRICT COURT 
MISAPPLIED SECTION 2

At the very least, this Court should reverse the November Order because the District Court 

used an improper interpretation of Section 2. In particular, the District Court failed to follow 

this Court’s definition of racially polarized voting from Monroe v. City o f Woodville. In 

addition, even assuming the District Court properly determined the existence of vote dilution, he 

incorrecdy analyzed the totality of circumstances test.

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

The fundamental flaw in the District Court’s judgment is that it bottomed its finding of 

racially polarized voting on the mere fact that blacks and whites vote differently. See November 

Order at 89. The district court held that “party affiliation, straight party ticket voting and 

campaign factors [are irrelevant] . . . .  [I]t is the difference between choices made by blacks 

and whites alone and not the reasons why they vote differently that is the central inquiry of § 2.” 

Id. (citations omitted). As support, the district court cited Justice Brennan’s dicta to such an 

effect.

Under Monroe v. dry' of Woodville, 881 F.2d 1327, modified, 897 F.2d 763 (5th Cir. 

1989), cert, denied, 111 S. Ct. 71 (1990), however, that plainly is an incorrect statement of the 

law. Appellees made the same mistake, and simply failed to prove racially polarized voting in 

Dallas County. As suggested by the review of the evidence above, state district court judicial 

elections in Dallas County are characterized by partisan polarized voting, not by racially 

polarized voting. Race has no effect whatsoever on voters’ choices other than as it tangentially 

relates to part loyalty. That this does not equal “racially polarized voting” amply is supported 

by Monroe, prior Supreme Court case law, and the legislative history of the amended section 2.

28



In Monroe, the district court found racially polarized voting but not political cohesiveness. 

Plaintiffs argued on appeal that a finding of one necessarily entails a finding of the other. In 

rejecting that position, this Court emphasized the difference between the two factors:

Appellants err by implying that a finding of racial polarization in voting 
behavior is synonymous with a group’s political cohesion. The terms are quite 
distinct. That a group's voting behavior is racially polarized indicates that the 
group prefers candidates o f a particular race. Political cohesion, on the other 
hand, implies that the group generally unites behind a single political “platform” of 
common goals and common means by which to achieve them. For example, the 
black population of a district may vote in a racially polarized manner so as to 
overwhelmingly favor black candidates, but the group may lack political cohesion 
if it splits its vote among several different black candidates for the same office.
Where the black voters overwhelmingly favor a particular black candidate to the 
exclusion of others, data on racial block voting will be more probative to 
determining political cohesiveness.

Monroe v. City o f Woodville, 881 F.2d at 1331 (emphasis added, footnotes omitted). The 

proof at trial showed that in excess of ninety percent (90%) of black voters will vote for the 

Democratic candidate for district judge, without regard for that candidate’s race, and that around 

sixty to seventy percent (60-70%) of white voters will vote for the Republican candidate for 

' district judge, again, without regard for that candidate’s race. Because that preference was 

undisputedly shown to hold true without regard for the race of the candidate, Appellees — while 

proving cohesiveness -- have wholly failed to show racially polarized voting, i.e., that black 

voters prefer candidates of a particular race.22

22 This is distinct from saying that the polarization is caused by intentional discrimination 
by white voters against black candidates; it simply says that the race of the candidate is a causal 
factor in the polarization, for whatever reason that may occur.

Aside from the force of Monroe V. City o f Woodville, Appellees also could not establish 
racially polarized voting because even the black favored candidates -  Democrats -- obtained 
significant white support, ranging from thirty to forty percent (30-40%). See Overton v. City 
of Austin, 871 F.2d 529, 537 (5th Cir. 1989) (existence of minority candidate who obtained 
majority vote in some Anglo precincts and other elections showing white vote of 47% for 
minority candidate, among other facts, rebuts racially polarized voting); Houston v. Haley, 859
F.2d 341, 346 (5th Cir. 1988), vacated on other grounds, 869 F.2d 807 (5th Cir. 1989) (mere 
showing of some cross-over white support for losing black candidate is “a circumstance which 
plainly calls into question the existence of white bloc voting”). As Dr. Taebel testified, the 
proper way to look at judicial voting in Dallas is that there are at least two white blocs -- a 
Democratic bloc and a larger Republican bloc. (Tr. 5:282) The fact that Democratic candidates 
(continued on next page)

29



The district court’s error, as stated was in relying on dicta in Gingles. While noting that 

Justice Brennan did not speak for the majority of the Court on this proposition,23 it clung to 

Justice Brennan's language in Gingles to support the proposition that reality — partisan politics 

determines the outcome of judicial elections rather than race -- should be ignored.

The majority of the Court, however, rejected this language as inconsistent with precedent 

and grossly unworkable. Justice White characterized Justice Brennan’s comments as “interest 

group politics rather than a rule hedging against racial discrimination” and probably not “what 

Congress had in mind in amending Section 2 as it did.” Thornburg v. Gingles, 478 U.S. 30, 

83 (1986). Justice O’Connor, writing separately for four members of the Court, saw the issue 

clearly and stated “that the plurality's conclusion that the race of the candidate is always 

irrelevant in identifying racially polarized voting conflicts with Whitcomb [v. Chavis]

Id. at 103. Thus, a majority of the Supreme Court in Gingles was of the opinion that the race 

of the candidate was important in determining racially polarized voting, and not just whether 

black voters supported different candidates from white voters.24

Finally, articulating the manner in which Section 2 should be applied, Congress was 

careful to express its agreement with both the reasoning and the outcome of Whitcomb.25 In

typically lose reflects nothing more than normal democratic processes of a majority winning, 
and says nothing about racial polarization among white voters.

23 See November Order at 8 n.7.

24 This reading is also consistent with the language of Section 2 and the legislative history. 
Section 2 itself refers to the “extent to which members of a protected class have been elected to 
office.” If the race of the candidate were irrelevant, Congress surely would not have made 
electoral success of minority candidates a factor. More significantly, the legislative history 
explicitly identifies racially polarized voting with the race of the candidate: “An aggregate of 
objective factors should be considered such as . .. racially polarity [sic] voting which impedes 
the election opportunities of minority group members . . . H.R. Rep. No. 97-227, at 30. 
Thus, the House of Representatives understood racially polarized voting in the same manner as 
the Fifth Circuit in Monroe v. City of Woodville — it is voting based on the race of the candidate 
that prevents minority group candidates from being elected.

25 Congress specifically stated that Whitcomb was to be a guiding factor in applying the 
amended Section 2. “The ‘results’ test to be codified in Section 2 is a well defined standard, 
(continued on next page)

30



Whitcomb, the Court rejected black voters’ challenge to an election plan calling for the at-large 

election of eight state senators and fifteen assembly members from a county-wide multimember 

legislative district. The black voters prevailed in the trial court by proving that an at-large 

system existed, and under it their group consistently was underrepresented in the legislature in 

comparison with their proportion of the population -  which is all Appellees proved in the 

instant case.26

The Supreme Court rejected the black group’s position and analyzed evidence hauntingly 

similar to the evidence in this case. In Whitcomb, the evidence was that the black group’s area 

voted Democratic, and that Republicans had won four of the five elections from 1960 to 1968. 

The Court concluded:

The failure of the ghetto to have legislative seats in proportion to its 
population emerges more as a function of losing elections than of built in bias 
against poor Negroes. The voting power of the ghetto residents may have been 
“cancelled out,” as the District Court held, but this seems a mere euphemism for 
political defeat at the polls.

, 403 U.S. at 153. All Appellees proved at trial below was that black (and white) Democratic

judicial candidates lose at the polls to white (and black) Republican judicial candidates.27 That

first enunciated by the Supreme Court and followed in numerous federal court decisions.” S. 
Rep. No. 97-417, 97th Cong. 2d Sess. (1982), 1982 U.S. Code Cong. & Ad. News 177, 
193. In Congress’ discussion of that “well defined standard,” Whitcomb is discussed in detail. 
Id. at 197-98, and is discussed as illustrative throughout the Committee Report. See id. at 197- 
208. Simply stated, Congress used Whitcomb, as well as White v. Regester, 412 U.S. 755 
(1973), as its model for the construction of the amended Section 2. “As explained in the 
Committee Report, the new subsection codifies the legal standard articulated in White v. 
Regester, a standard which was first applied by the Supreme Court in Whitcomb v. Chavis . . . 
.” Id. at 364.

26 That is in proportion to the number of voters in Dallas County' -  not in proportion to the 
number of eligible candidates.

27 The same proof also shows that Appellees cannot meet the third Gingles threshold 
requirement because, on these facts, they cannot show that the losing black judicial candidates 
were in any realistic sense the “candidate of choice” of black voters in Dallas County. The 
evidence showed that the vast majority of black voters did not know who those candidates were 
and did not vote specifically for them, but rather generally for a straight Democratic ticket. (Tr. 
4:127-29) The evidence also showed that had those candidates run as Republicans, and all 
other things been equal, they would have won the election but obtained virtually no black votes. 
(Tr. 2:172; 3:43, 57; 5:283-84) The evidence was conclusive that the votes they received had 
(continued on next page)

31



proof simply fails to establish racially polarized voting, and the District Court’s judgment based 

solely on an incorrect legal standard that recognizes such irrelevant proof must be reversed.

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

One of the factors pertinent to section 2 analysis is the degree of minority success. 

Inherent in this factor is the choice of baseline against which success is measured. The district 

court applied an incorrect measure for the degree of minority success, and its factual 

conclusions are tainted by this improper legal standard. In two recent employment 

discrimination cases, the Supreme Court has held under those analogous principles that the 

proper comparison is to the percentage of minorities in the pool of qualified candidates. See 

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); City of Richmond v. JA . Croson 

Co., 488 U.S. 469 (1989). Although those cases were not Section 2 cases, federal courts often 

borrow from similar areas when considering issues raised by Section 2. See, e.g., Coalition to 

Preserve Houston v. Interim Bd. o f Trustees of Westheimer lnd. School Dist., 494 F. Supp. 

• 738, 742, (S. D. Tex. 1980) affd, 450 U.S. 901 (1981). Compared to that measure, blacks 

have achieved electoral success in excess of their representation in the pool of legally qualified 

candidates.

This interpretation of the degree of success makes particular sense under the facts of this 

case. The proof at trial showed that any “underrepresentation” of blacks was not caused by 

county-wide election of district judges, but was caused by their “underrepresentation” in the 

pool of legally qualified potential judicial candidates. Although few courts have explicitly

virtually nothing to do with the candidates themselves, who were admittedly highly qualified, 
but rather with their party affiliation. (Tr. 4:129) Indeed, if Appellees’ view of "candidate of 
choice” were correct, even the proverbial “yellow dog” would be the judicial candidate of choice 
of black voters. The absurdity of that consequence shows the fallacy of Appellees' argument. 
The losing black candidates were not the candidates of choice, but simply candidates running 
under the party of choice of black voters. That is not sufficient to meet Gingles’ third 
prerequisite, and the District Court's improper application of this additional Gingles threshold 
also requires reversal.

32



considered whether Section 2 includes a requirement that the challenged practice cause the 

objectionable result, but see Whitfield, v. Democratic Party, 686 F. Supp. 1365, 1382 (E.D. 

Ark. 1988) (explicitly acknowledging a causation requirement), it is clear that the Voting Rights 

Act applies only to electoral practices that were the cause of the underrepresentation.

Initially, section 2 itself applies only to an act or practice that “results in a denial or 

abridgement of the right . . .  to vote . . . .” Voting Rights Act § 2(a), 42 U.S.C. § 1973(a) 

(1988). The use of “results” indicates that a causal link is required. Causation also formed the 

basis for the Supreme Court's threshold test in Gingles\ unless those factors are established “the 

use of multimember districts generally will not impede the ability of minority voters to elect 

representatives of their choice.” Gingles, supra, 106 S. Ct. at 2766. Thus, the three-part test is 

meaningful because unless those criteria are met, the challenged practice could not be the cause 

of minority voters’ inability to elect representatives of their choice.

Appellees did not prove that county-wide election of judges is the cause of there being 

fewer minority judges than their numbers in the population at large would suggest. Indeed, Dr. 

Engstrom explicitly disclaimed any opinion regarding the cause of the results that he observed. 

(Tr. 2:134) Prof. Champagne explained that the relatively low number of minority judges 

(8.4%) is caused by the relatively lower number of minority lawyers who are legally qualified 

to run forjudge (3.3%). (Tr. 4:130; DI-Dallas Ex. 18 A) Although abolishing county-wide 

elections might result in greater numbers of minority judges, that does not justify such action 

for two reasons. First, as a matter of logic, it would be treating the symptom rather than the 

disease; second, as a matter of law under the Voting Rights Act, relief is improper unless the 

challenged practice is the cause of the problem. Whether a remedy would effectively respond to 

the legitimate concern of there being few minority judges by increasing that number is not the 

question; the Court cannot order a remedy without a violation of a right, and if the challenged 

practice did not cause the problem, it does not violate the Voting Rights Act. Alternately, the 

real cause of any “underrepresentation” of minorities on the bench shows that there is no 

problem in terms of Section 2 — minorities have achieved greater than the degree of electoral

33



success one would expect from the percentage of minority lawyers legally qualified to be judges 

in Texas.

C. The District Court's Finding Under The Totality 
O f Circumstances Was Clearly Erroneous

1. The District Court Used An Improper Standard of Proof. — As discussed in Section I 

of this Brief, Justice Stevens recognized that compelling state interests often preclude a finding 

of vote dilution. In view of the serious nature of the potential intrusion here by the federal 

government into one of the fundamental sovereign aspects of state government and the delicate 

interest protected by the present system, it is at least appropriate to hold Appellees to a higher 

than normal standard of proof. In particular, the Court should require a showing by Appellees 

of clear and convincing evidence to justify dismanding and rebuilding the Texas judicial system. 

Cf. Campos v. City of Baytown, 849 F.2d 943, 946 (5th Cir. 1988), cert, denied,492 U.S. 

3213 (1989) (Higginbotham, J., dissenting from denial of rehearing en banc). If a civil action 

for fraud with no greater consequences than money damages merits that higher evidentiary 

standard, surely the judicial system of Texas does as well.

2. Appellees Used Outdated Statistical Data -- Appellees simply failed to carry' their 

burden of proof. Dr. Engstrom’s and Dr. Weiser’s data all rest upon the 1980 Census. (Tr. 

2:136; 3:4-6) Dr. Engstrom conceded that there had been many changes in Dallas County’s 

population since 1980, which he had not taken into account. (Tr. 2:135-42) Judge Entz 

offered testimony showing that there have been dramatic changes in Dallas County’s 

demographics since 1980 caused by dispersal of blacks throughout the county, black residents 

moving into the county and living outside traditional predominantly black neighborhoods, a 

disproportionate increase in Hispanic population, and a dramatic increase in Oriental population, 

to perhaps as much as 100,000 residents who were wholly excluded from Appellees’ analysis. 

(Tr. 3:43-44; Summary of Marshall Deposition, DI-Dallas Ex. 24) As this Court said in 

criticizing use of dated 1980 Census figures, “Whatever the voting age population composition 

was then, given mobility, mortality, and coming of age, we cannot tell with any certainty what

34



it is today . . . Houston v. Haley, 859 F.2d 341, 349 (5th Cir. 1988), vacated on other 

grounds, 869 F.2d 807 (5th Cir. 1989); see also id. at 344 (noting that plaintiff “who bore the 

burden of proof -  has provided us with little more than a basis for speculation regarding the 

present black voting age population”) (emphasis in original).

Even were there no changes over time from the 1980 Census, Appellees’ statistics are still 

flawed by unproven, counter-intuitive assumptions in their underlying data. Appellees’ experts 

relied upon demographic data for total population as a surrogate for data reflecting the racial 

composition of actual voters in judicial elections. That assumes that all racial groups will, in 

equal measure: (1) have a voting age population proportion equal to their total population 

proportion, (2) register to vote in proportion to their voting age population proportion, (3) show 

up to vote in proportion to their registered voter proportion, and (4) vote in down-ballot judicial 

elections in proportion to their actual voting proportion. None of those assumptions has been 

tested, and Dr. Engstrom candidly admitted that he made them simply because the true data he 

.needed was not available. (Tr. 2:138) In critiquing similar statistical assumptions, this Court 

has noted: “Although we agree that absolute perfection in the base statistical data is not to be 

expected, a trial court should not ignore the imperfections of the data used nor the limitations of 

statistical analysis.” Overton v. City of Austin, 871 F.2d 529, 539 (5th Cir. 1989). In short, 

Appellees’ underlying data is so flawed that they have failed to meet an evidentiary burden of 

preponderance of the evidence, much less the higher clear and convincing standard that should 

be applied here.28 The Trial Court’s findings of fact, which are almost entirely based upon 

Appellees’ statistical analysis, are, therefore, clearly erroneous.

28 The Court should give no weight to the Dallas County Plaintiff-Intervenors’ proof 
regarding non-judicial elections. Although this Court has permitted use of “exogenous 
elections, Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 502 (5th Cir. 1987), 
cert, denied, 492 U.S. 905 (1989), that was only “in light of the sparsity of available data.” 
Appellee LULAC’s non-Dallas County expert, Dr. Brischetto, testified that he would not look 
to exogenous elections if there were as many as three district court elections. (Tr. 1:118-19) In 
Dallas County, there have been seven general and two primary' elections for district judge with 
black candidates. With that volume of elections, there is no need to look at non-judicial 
(continued on next page)

35



3. Under the Proper Standard of Proof the District Court's Conclusions Were 

Clearly Erroneous. — A review of the remaining Zimmer factors under a proper standard of 

proof, with cognizance of the fundamental factual deficiencies of Appellees’ statistical proof, 

shows that the District Court's ultimate conclusion of fact regarding county-wide elections was 

clearly erroneous.

a. Electoral Success. -- First, the degree to which minority candidates have 

obtained electoral success is in Judge Entz’ favor. Out of the nine contested primary and 

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

elections. (Tr. 4:105; DI-Dallas Ex. 9A) This approaches fifty percent, which surely is about 

how many white candidates win contested elections (since one candidate must lose every 

contested election). Significantly, in primary elections where partisan affiliation is not a factor, 

the black judicial candidates won both contested primaries against white opponents. (Tr. 

4:105)29

b. Types of Election Systems. — The record before the Court does not show any 

of the “enhancing” factors under the third Zimmer factor. Dallas County is not an unusually 

large electoral district; it simply reflects the long Texas tradition of using the county government 

as the basic unit for delivering judicial services to the people, a policy that finds it roots as deep

elections. This is especially true given the nature of the other elections used. They were 
typically not partisan, they involved different jurisdictions, some of them had more nearly racial 
implications, they were on shorter ballots, and they were much higher profile that the invariably 
low-profile, issue-less district court campaigns. Accordingly, the Court should disregard that 
evidence.

29 This Court noted in considering this factor that the emphasis under Section 2 is on 
“political processes that denied citizens the opportunity to elect representatives of their choice.” 
Houston v. Haley, 859 F.2d 341, 347 (5th Cir. 1988), vacated on other grounds, 869 F.2d 
807 (5th Cir. 1989) (emphasis in original). The evidence here is that all four losing black 
Democratic judicial candidates were invited to run as Republicans, would have won as 
Republicans, but chose not to run under that party. (Tr. 2:172-73, 176; 2:209; 2:248-49; 
5:283-84) They certainly had an opportunity to w-in, but rejected it. A conscious choice by 
candidates to lose surely does not show that Dallas County's present system of electing judges 
denied citizens the opportunity to elect the very candidates that Appellees argue were the choice 
of the black community.

36



as the Texas Revolution. (Tr. 4:138-39) Post-primary judicial elections do not have a majority 

vote requirement. Finally, although judges run for specific courts, that is a reflection of the 

autonomy of each court and its status in the true sense of the term as a single member judicial 

district. There was no showing that this fact in any way enhanced the inability of black voters 

to elect Democratic judges.

c. Existence of a Discriminatory> Slating Process. -  The record shows no slating 

process, and the district court agreed. See November Order at 72.

d. Lingering Effects of Past Discrimination. — Appellees failed to show that 

blacks suffer the effects of discrimination in areas such as education, employment and health 

that hinder their ability to participate effectively in the political process. Although LULAC 

introduced exhibits showing that blacks have lower socioeconomic status generally than whites 

in Dallas County, there was no testimony showing that, at this date, such lower status is 

directly a result of prior discrimination or that it hinders the ability of blacks to participate in the 

political process.30 And although LULAC attempted to elicit testimony of that sort from Dr. 

Dyer, he stated that he was not qualified to give such testimony and expressed personal 

reservations about w'hether a causal link could be shown between today’s socioeconomic status 

and discrimination of years and decades ago. (Tr. 4:320-21)

e. Tenuousness of the System. — The policies underlying county-wide election of 

judges and judicial administration are not tenuous, and include: the historic use of counties as 

the fundamental unit of provision of judicial sendees; judicial efficiency through central 

administration, specialization, flexibility in docket management and court creation; and 

providing electoral accountability while avoiding judicial parochialism. The District Court 

agreed that these policies were not tenuous. (November Order at 77)

30 Although Appellees’ witness Dr. Brischetto offered such testimony with respect to other 
counties, his testimony specifically did not encompass Dallas County, and Appellees introduced 
no other testimony on this point with respect to Dallas County.

37



f. Racial Appeals. — Appellees did not show that judicial elections were 

characterized by oven or subtle racial appeals. In fact, the only incident the trial coun found to 

be a racial appeal in a judicial race was actually a reference to the candidate’s religion in a 

Republican primary. (November Order at 73) That reference drew a strong response from the 

Republican Pany, and apparently was of no importance to the voters — the black candidate won 

the primary. (Tr. 4:77; 4:218) Even if the religious reference were considered a racial appeal, 

that isolated incident is not any indication that racial appeals are typical or even “not unusual” in 

judicial campaigns.

g. History of Discrimination. -- Finally, although Dallas County and Texas once 

had official discrimination against the voting rights of black voters, those days are thankfully 

long in the past. Appellees did not show and the District Court did not explicitly find that this 

unfortunate history has had any present day lingering effect on the ability of blacks to participate 

in the political process in Dallas County', and there are certainly no present official impediments 

to black voting.

A review of all of the Zimmer factors shows that the District Court's ultimate finding was 

clearly erroneous.31 The essence of Appellees’ case did not turn on the Zimmer factors; rather, 

it turned on their arcane statistical evidence showing that black voters vote for Democratic 

candidates and that the percentage of black judges is smaller than the percentage of black voters. 

As show'n above, however, those facts do not support a finding of a violation of the Voting 

Rights Act. Appellees’ statistical smoke cannot obscure the obvious facts that the political 

processes in Dallas County are absolutely open to black judicial candidates running, and that 

they can and do win, as Republicans.

31 The existence of racially polarized voting, which is also a Zimmer factor, is discussed at 
length above. The remaining Zimmer factor, responsiveness, was expressly not raised by 
Appellees, and the District Court did not find it significant. (November Order at 75) Finally, 
even if the weight of Texas’ state interest is not compelling as a matter of law, if taken into 
account in the totality of circumstances it must render any finding of a violation clearly 
erroneous in view of the paucity of factors supporting such a finding.

38



CONCLUSION

Therefore, for the reasons stated, Judge Entz requests the Court to reverse the decision of 

the district court, and to render judgment in favor of the defendants.

Respectfully submitted,

Robert H. Mo/tv, Jr. 
David C. Godbey 
Bobby M. Rubarts 
Craig W. Budner

of HUGHES & LUCE, L.L.P.
1717 Main Street
Suite 2800
Dallas, Texas 75201
(214) 939-5500

ATTORNEYS FOR DALLAS COUNTY 
DISTRICT JUDGE F. HAROLD ENTZ

' Of Counsel:

Sidney Powell 
STRASBURGER & PRICE 
901 Main Street 
Suite 4300 
Dallas, Texas 75202 
(214) 651-4692



CERTIFICATE OF SERVICE

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

mail, return receipt requested, on William L. Garrett, Garrett, Thompson & Chang, 8300 

Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, Southwest Voter Registration & 

Education Project, 201 N. St. Mary’s, Suite 521, San Antonio, Texas 78205; Sherrilyn A. Kill, 

NAACP Legal Defense and Educational Fund, Inc., 99 Hudson Street, 16th Floor, New York, 

New York 10013; Gabrielle K. McDonald, 301 Congress Avenue, Suite 2050, Austin, Texas 

78701; Edward B. Cloutman, III, Mullinax, Wells, Baab & Cloutman, P.C., 3301 Elm Street, 

Dallas, Texas 75226-1637; Renea Hicks, Office of the Attorney General, P.O. Box 12548; 

Capitol Station, Austin, Texas 78711-2548; J. Eugene Clements, Porter &b Clements, 700 

Louisiana, Suite 3500, Houston, Texas 77002-2730; Walter L. Irvin, 5785 South Hampton 

Road, Suite 210, Lock Box 122, Dallas, Texas 75232-2255; Susan Finkelstein, Texas Rural 

Legal Aid, Inc., 201 N. St. Mary’s #624, San Antonio, Texas 78205; and Seagal V. Wheatley, 

Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc.. 711 Navarro, Sixth Floor, San Antonio, 

Texas 78205 in accordance with the Federal Rules of Appellate Procedure this 6th day of 

September, 1991.



a claim of unlawful hiring practices. Clearly, the judgment 
as based upon such evidence which is not germane is in
error.
IV. A Substantial Portion of The Evidence Was Not Considered 

by the Court.
Defendants' brief is unresponsive to plaintiffs- 

appellants' contention that the court below erred by failing
to consider substantial portions of the evidence adduced at

• , 28/ trial. —
1. Each party offered approximately 100 exhibits

during the trial. Yet, the lower court based its opinion
strictly upon the documentary evidence presented by the
defendants, and cast a blind eye on the probative docu-

29/mentary evidence submitted by plaintiffs. —  The lower 
courts' failure to consider plaintiffs' proof that signifi­
cantly contradicts the defendants' positions is a major 
deficiency of the judgment.

For example, the lower court's reliance 
on the testimony of numerous of defendant's witnesses who 
testified about Mr. Emmett Hardy, and its failure to even 
mention the documentary evidence introduced with respect 
to Mr. Hardy, reflects the court's failure to consider 
the evidence presented in this case. This probative evidence 
squarely rebuts the defendants' argument as follows:

28/ See Plaintiffs-Appellants' Brief pp. 54-57.
29/ The court below referred to 66 of defendants exhibits 
eight but only eight of plaintiffs' exhibits were cited.

14



Emmett Hardy, a Black former employee of the NLRB 
began his employment with the agency on July 4, 1976, as a 
Field Attorney, GS-9, at the San Francisco, California, 
office, Region 20. (PX 32) He received a promotion to the
GS-11 level on July 4, 1977; and to GS-12 on July 16, 1978. 
(Id.) He did not receive a promotion thereafter. Mr. Hardy 
resigned from NLRB on July 4, 1980. (Id.)

In the first two years of his employment with the 
agency, Mr. Hardy was commended for his excellent work. (DX 
406: Appraisals of Emmett Hardy, for the period 7/4/1977 to
7/4/1978) When he reached the journeyman level, according 
to his immediate supervisor, Mr. Hardy's performance im­
proved. (Id.) Attorney Walter Kintz, who was Mr. Hardy's 
first line supervisor for his entire tenure with the NLRB, 
who was most familiar with his work, and who "supervised him 
on a day to day basis," recommended that Mr. Hardy be pro­
moted to a GS-13. (DX 406-B: R. Vol. XIX, pp. 28, 37). The
Regional Attorney, Robert Miller, directed the Deputy Reaional 
Attorney, Robert Sprague, to evaluate Mr. Hardy. (R. Vol.
XIX, pp. 30-31) This was the first time that Mr. Sprague 
had appraised an attorney who was not on his team and under 
his supervision; it was also the first time Mr. Miller asked 
him to perform such a task. (R. Vol. XIX, pp. 31, 33) Mr. 
Miller testified that this was also the first time in the 
history of the office that the Regional Attorney's recommen­
dation regarding a promotion overrode the recommendation of 
a supervisor. (R. Vol. XIX, p. 30) Sprague's actual contact

15



with Mr. Hardy was minimal and involved only four cases.
(R. Vol. XIX, p. 31; DX 406-B: 7/11/79) Miller never
commented to Mr. Hardy about any alleged deficiencies. (R. 
Vol. XIX, p. 34) Miller admitted that he never received 
Hardy's apprasal to verify the accuracy of the appraisals.
(R. Vol. XIX, p. 33)

The inherent arbitrariness of the promotion process 
was reflected in Miller's conflicting testimony, that Hardy 
was unqualified to advance and his documented conclusion 
that Mr. Hardy's promotion to the GS-13 level was imminent. 
(DX 406-B; R. Vol. XIV, pp. 34-35) Nevertheless, Regional 
Director Natalie Allen relied on Sprague's appraisal and 
rejected Kintz's recommendation when he did not recommend 
Hardy for a GS-13 promotion. Regional Director Allen's 
rejection of an immediate supervisor's recommendation and 
the fact that he was evaluated by the Deputy Regional Attor­
ney who had never before evaluated an attorney was a depar­
ture from normal agency procedures and the practice of the 
office. In fact, Mr. Hardy challenged Sprague's appraisal 
of him, delineating the inaccuracies of Sprague's comments. 
(PX 406-B: Memorandum from Emmett Hardy, dated 7/25/1979.)
Mr. Hardy's refutation of Sprague's appraisal was totally 
ignored by the Regional Director. This documentary evidence 
was clearly iqnored by the court below.

2. Defendants have attached an Appendix to their 
Brief which purports to demonstrate that the district court's 
findings of fact were supported by the record. Plaintiffs

16



submit that this Appendix is insufficient for two reasons. 
First, in many instances the findings are not supported by 
the record citations in defendants' brief. Second, the 
record contradicts the findings. 2SL/ For example:

a. Defendants-appellees 1 characterization of 
the performance appraisal scheme is contradicted by the 
record as established by their own witnesses, supervisors
who testified on behalf of the NLRB. Supervisors testi­
fied that they did not retain notes on which to base their 
evaluations, and therefore simply developed them from their 
"memory" or general recollection of an employee's per­
formance. — ■/ Contrary to defendants' assertions, the fact
that persons are evaluated by supervisors who are unfamiliar

33/with their work was similarly proven. —
b. The record does not support the court's 

conclusion that Cathy Carey received training. Her testimony, 
in fact, was that she was not even given informal supervision. 
(R. Vol. XII, pp. 34-35.) Further, her testimony was that
she was never advised that her work was deficient, and that

30/ See Attachment A.
31/ See R. 135, pp. 88-94; Plaintiffs-Appellants' Brief, pp. 
10-12; pp. 24-26. See also Plaintiffs-Appellants' Brief, 
pp. 24-26, p. 55; and PX for a discussion of Dr. James 
Outtz's expert opinion based upon his testimony and written 
report.
32/ R. Vol. XVIII, pp. 19, 45, 55, 140.
33/ R. Vol. XVIII, pp. 53-54, p. 63; R. Vol. XVII, pp. 97- 
100; pp. 102-104; R. Vol. XIX, pp. 6-9, p. 38; R. Vol. XIX, 
pp. 47, 101, 116, 122.

17



her written performance appraisals indicated that her per 
formance was exceptional. (R. Vol. XII, p. 25; pp. 34-36.) 
In addition, the court cast a blind eye of the fact that 
Ms. Carey's promotion was jeopardized because of an error 
which was undeniably attributable to her White supervisors. 
(R. Vol. XII, p. 125.)

c. During the trial Mr. Haywood Banks, who 
has been employed as an attorney with the NLRB since 
1958 — ^ where he has been retained at the GS-13 level 
since 1968, — ^ testified that someone from the Regional 
Director's Office asked him whether he wished to be con­
sidered for a vacant supervisory position. He responded 
affirmatively but the position was awarded to a white 
employee. — ^ Mr. Banks specifically testified that there 
were several other individuals, all of whom were white, 
who, based upon his earlier testimony, were also competing 
for the position. — ^ Yet, without one shred of evidence 
and, in fact, in the face of evidence to the contrary, the 
court concluded that this act "was reflective of the special 
effort of the Agency to solicit minorities to apply for 
vacancies." — / The trial judge strained his unsupported 
contention even further to conclude that "Whites were not

34/ R. Vol . X I , p - •
1 

O
'

35/ R. Vol. XI, p- 95 .
36/ R. Vol . XI, p- 110.
37/ R. Vol. XI, pp. 110

38/ F. F. Ill' f  p . 38 •



solicited to apply for vacancies. 39/

3. The lower court's predisposition to rule in 
favor of the defendants is revealed by the fact that the 
findings of fact nonchalantly and without any serious 
analysis found all of the witnesses' complaints of racial 
discrimination meritless, and similarly dismissed as ground­
less all of the EEO charges.

For example, the Court failed to address the
40/biased treatment Mr. Nathan Conley faced. —  The court 

below overlooked the unrebutted evidence of numerous 
instances of black employees being treated in a discrimina­
tory manner by white supervisors without any corrective 
action being taken. Whites who were verbally or even 
physically abusive to their black subordinates were never 
formally reprimanded. R. Vol. XI, p. 180, R. Vol. XVII, 
pp. 140-141; R. Vol. XX, pp. 10-11. In fact, white supervisors 
have continued to receive ratings of well qualified in

39/ Id.
4 0/ Mr. Conley had to wait for his supervisor, Mr. Locke, 
to arrive in the morning (R. Vol. XII, p. 124), a require­
ment not imposed on White employees with flagrant records 
of tardiness (R. Vol. XII, p. 125); he experienced severe 
verbal abuse (R. Vol. XII, p. 125); his trial assignments 
were removed (R. Vol. XII, pp. 130-43); he was never coun­
seled or advised that work assignments would be diminished 
until the day it was done (R. Vol. XII, pp. 131-33); he was 
not advised of specific problems and the criticisms he 
received were vague and nebulous (R. Vol. XII, p. 133); he 
was not given any guidance on how to improve (R. Vol. XV, 
pp. 33-34); and finally, the Regional Attorney told him 
that he could not improve and should resign (R. Vol. XII, 
pp. 138-39; (DX 292-3), even before he was denied a pro­
motion. (R. Vol. XII, p. 143). This extreme harassment 
and humiliation traumatized Mr. Conley and resulted in his 
suffering a nervous breakdown.

19



spite of their abusive behavior. R. Vol. XVII, p. 129.
In light of these facts it is not surprising then that 
no no supervisors have ever received negative ratings with 
regard to the equal employment opportunity component on the 
supervisors' appraisal form. (R. Vol. XIV, p. 207.) However, 
it is most alarming that the court discarded this telling 
evidence.

During the trial it became evident that several 
white supervisors had histories of discriminating against 
their black subordinates. R. Vol. VII, p. 10, R. Vol. XVI, 
pp. 213-214. The fact that Mr. Louis Baldovin, the Director 
of Region 23, harassed and abused each of the four black 
male employees who served under him remains on the record, 
totally uncontradicted. (R. Vol. 135, pp. 43-44.) Mr. 
Fleishut, the Regional Director in Memphis, Region 26, has 
jeopardized the careers of all but one of the six Blacks 
whom he has supervised. R. Vol. XVIII, pp. 80-83. He ter­
minated three Blacks, denied three others promotions, and 
submitted a negative performance appraisal with regard to 
the one Black supervisor in the region. Similarly, Mr.
Robert Miller, the Regional Director for Region 20 in San 
Francisco, opposed the promotions of three of his Black 
subordinates, Mr. Frank Sanes, Mr. Emmett Hardy and Mr. 
Christopher Darden. (R. Vol. XIX, pp. 38, 43.) In each 
instance, Mr. Miller deviated from the normal operating 
procedures in order to effectively preclude the Blacks

20



from advancing. 41/

V. Plaintiff Lewis' Individual Claims
We have set out in our main Brief the facts sur­

rounding plaintiff Lewis' individual claims. Defendants' 
position that that case was rebutted is not supported by the 
record. Thus, the district court and the defendants rely on 
the testimony of the Regional Director, Mr. Baldovin, that 
the person who received the next available promotion had 
been rated highly qualified before Mr. Lewis. That testimony 
however, was directly contradicted by undisputed documentary 
evidence which establishes beyond any question that Mr.
Lewis received his highly qualified rating before the White 
who received the promotion, and would therefore have been 
entitled to the promotion if he had not been retaliatorily
given a lower evaluation just before the promotion action

. . 42/was taken. —
In any even, the issue of whether even in the 

absence of discrimination Mr. Lewis would have been entitled

41/ Sanes was the first and only person to have been denied 
two step increases (R. Vol. XIX, p. 43); Mr. Hardy was 
the first and only employee to receive an appraisal from the 
Deputy Regional Attorney and denied a promotion as a result 
of this negative appraisal. R. Vol. XIX, p. 38.
42/ See plaintiffs' main Brief, pp. 27-30, and record refer­
ences therein. As described there at length, before Mr.
Lewis filed his first EEO complaint in early 1975, he had 
been consistently promoted and/or given within-grade increases 
and performance awards based on his excellent performance.
Only after he complained did negative comments and unreasonable 
work assignments begun to be made and he was rated not quali­
fied for a promotion. Also, a new team containing all the 
black professionals was set up. Mr. Penrice, the senior 
Black, was put in charge. When he refused to carry out the 
plan to harass Mr. Lewis he also encountered trouble from 
Baldovin. See R. Vol. XIII, pp. 153-58; PX 75.

21



to relief is an entirely different question as to whether 
there was discrimination to begin with. Mr. Lewis made out 
a clear prima facie case of a discriminatory act taken in
retaliation for his complaining about his initial non-

4 3/promotion to a higher level. —  Defendants put m  no 
evidence that established a legitimate, non-discriminatory 
reason for the action, but simply attempted to show that Mr. 
Lewis would not have received a promotion in any event.
Again, that question goes to relief and not to whether a 
violation of the act was demonstrated.
VI. The Legal Arguments

The legal arguments advanced by defendants-appellees
in their Brief do not contradict or diminish the merit and

. . 44/force of plaintiffs-appellants' positions. —
A. The Final Judgment Rendered by The District Court Was 

Clearly Erroneous
It is plaintiffs-appellants' position that the 

district court's failure to consider all of the evidence 
before it, failure to draw the required inferences from the 
evidence, and verbatim adoption of the defendants'

43/ Thus, negative appraisals appeared immediately after he 
complained and he was downgraded at the next rating 
opportunity.
44/ Defendants' legal arguments focus almost exclusively on 
the application of the clearly erroneous rule, on the 
appropriateness of the district court's verbatim adoption of 
the defendants' findings of fact and conclusions of law, and 
the court's award of costs.

22



in accordance withrenders the judgment "clearly erroneous 
the standards enunciated in Pullman-Standard v. Swint, 456 
U.S. 273 (1982). See, e.g., Redditt v. Mississippi Extended 
Care Centers, 33 F.E.P. Cases 286, 291 (5th Cir. 1983). See 
also Miller v. Mercy Hospital, 33 F.E.P. Cases, 206, 210-211 
(4th Cir. 1983); Gilbert v. City of Little Rock, 33 F.E.P. 
Cases 557, 559, 562 (8th Cir. 1983).

Plaintiffs have cited a long line of well es­
tablished opinions from the Fifth Circuit and the majority 
of the courts of appeals which strongly disapprove of the 
trial court's mechanical or verbatim adoption of one parties 
findings. — '/ Defendants in their Brief simply do not address 
or even discuss this cjovernincj body of law. Defendants 
have not asserted or demonstrated that these rulings are 
inapplicable in the case now before this Court. Thus, de­
fendants' reliance on rulings which provide little dis­
cussion or guidance and which are factually distinguishable 
is misplaced.

The courts of appeals have recently confirmed 
their disapproval of a district court's mechanical or ver­
batim adoption of the proposed findings and conclusions of 
one of the parties. See, e.g., Jones v. International— Paper 
Co,, 33 F.E.P. Cases 430, 432 (8th Cir. 1983). In Jonesian 
employment discrimination action instituted pursuant to 
Title VII, the Eighth Circuit relied upon Jones v. Stockham

45/ See Plaintiffs-Appellants' Brief, pp. 32-37.

23



Valves & Fitting Co., 559 F.2d 310, n. 1 (1978) and reitera­
ted its "strong disapproval of this practice. Jones— v_̂
International Paper Co., supra at 432. As the Court recoa- 
nized in Jones and is evident in the case now before this 
court, "Important evidence is more likely to be overlooked 
or inadequately considered when factual findings are not the 
product of personal analysis and interpretation by the trial 
judge." Id, As discussed above, the district court by 
adopting the defendants' pleadings in lieu of formulating an 
independent analysis of all of the evidence, neglected the 
proof presented. See Miller v. Mercy Hospital, 33 F.E.P.
Cases 206, 217 (4th Cir. 1983) citing Anderson v. City of 
Bessemer City, 717 F.2d 149 (4th Cir. 1983) and Lilly v^ 
Harris-Teeter Supermarket, 33 F.E.P. Cases 195 (4th Cir.
1983).
B. The Facts Support Plaintiffs-Appellants1 Argument— That 

Costs Should Not Have Been Assessed.
Defendants-Appellants' argument relating to 

whether costs should have been assessed is factually in 
correct. As the record makes clear, the 1978 Memorandum was 
issued in settlement of an appeal in the District of Colum­
bia of the costs issue, and was not simply an internal docu­
ment. The memorandum was made public by its being filed in 
the court of appeals and by its subsequent publication. See 
CCH Fair Employment Practices M 5083 (1978); see also Schlei 
and Grossman, Employment Discrimination Law, (Second Edition 
1983), p. 1215, n. 186.

24



Conclusion

In Boykin v. Georgia Pacific Corp., 706 F.2d 1384, 
1394 (5th Cir. 1983) the Fifth Circuit reversed the lower 
court's judgment on the liability issue and entered a judg­
ment for the plaintiffs. See also Wilmore v. City of 
Wilmington, 699 F.2d 667 (3rd Cir. 1983). The facts pre­ * I
sented in the case now before this Court are equally 
compelling. Thus, plaintiffs-appellants respectfully urge 
the Court to reverse the judqment below.

Respectfully submitted,
C

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
GAIL J. WRIGHT

99 Hudson Street 
16th Floor
New York, N.Y. 10013

MARK T. MCDONALD
Suite 203
1834 Southmore Blvd.
Houston, Texas 77004

Attorneys for Plaintiffs-Appellan 
CERTIFICATE OF SERVICE

I hereby certify that I have served the Reply 
Brief on counsel for defendants-appellees by United States 
mail, first class postage prepaid, addressed to Javier 
Aguilar, Esq. and James R. Gouqh, Esq., Assistant U.S. 
Attorneys, Southern District of Texas, 12000 Federal Buildina 
and U.S. Courthouse, 515 Rusk Avenue, Houston, Texas 77002.

Dated: February^ ‘j- , 1984 .



*