Motion by Jefferson County District Judges for Late Filing of Amicus Curiae Brief; Brief Amicus Curiae

    TOM MANESS 

Wad RIVERS CRIMINAL DISTRICT ATTORNEY PLO. LOX 5353 
FIRST ASSISTANT JEFFERSON COUNTY, TEXAS BEAUMONT, TEXAS 77704 

(409) 835-8550 

April 26, 1990 

Mr. Gilbert Banucheau 

Attention; Ms. Eileen Boudin 

Clerk, Fifth Circuit 

600 Camp Street 

New Orleans, LA 70130 

RE; LULAC V. STATE OF TEXAS, NO. 90-8014 

Dear Ms. Boudin; 

Enclosed for filing in the above referenced cause is the motion 
by the District Judges of Jefferson County for Leave For Late Filing of 
an Amicus Curiae Brief, and seven original Amicus Curiae Briefs 
conditionally filed with the motion. 
  

  

Thank you very much for your attention. 

Sincerely, 
   

    

  

  

    Tom Rugg 

Counsel for Amicus 

TR/lg 

encls; 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

STATE OF TEXAS, ET AlL., 

APPELLANTS 

VS. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), ET AL., 

APPELLEES 

  

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

  

MOTION BY DISTRICT JUDGES OF JEFFERSON COUNTY 
FOR LATE FILING OF AMICUS CURIAE BRIEF 

  

TO THE HONORABLE JUDGES OF SAID COURT: 

NOW COMES The District Judges of Jefferson County, and file 

this motion requesting that the Court permit the late filing of an 

Amicus Curiae brief in the above styled and numbered case, and for 
  

good cause would show the Court as follows: 

I. 

Information has come to the attention of the District Judges 

of Jefferson County as a result of the recent primary elections 

held on March 13, 1990, and the ensuing run-off elections of April 

10, 1990, that is highly relevant and important to this case, but 

that was not available prior to the deadline for the filing of 

Amicus Curiae briefs. The results of those primary elections 
  

 



relate directly to the issues confronting this Court, and the 

District Judges of Jefferson County seek to bring those matters 

to the Court's attention at this time. The late filing of this 

Amicus Brief was not because of negligence or lack of due dili- 
  

gence, but was simply the result of having only recently received 

the important information upon which it is based. 

Specifically, the named plaintiff in the lawsuit against 

Jefferson County, John Paul Davis, was elected in a county-wide 

vote as the Democratic nominee for a County Court judge position 

against two white opponents, and he then defeated one of those 

white opponents in the run-off election. This fact is not only 

significant because he is named plaintiff in the lawsuit, but it 

has special importance because John Paul Davis provided the 

majority of the plaintiffs' evidence by way of deposition testi- 

mony that black lawyers can not be elected in county wide elections 

in Jefferson County. His testimony was relied on heavily by the 

District Court in the findings against Jefferson County. 

Additionally, a black District Judge, Donald Floyd, who was 

appointed by the Governor of Texas last year was elected without 

an opponent in either the primary or November general election. 

This fact is highly relevant because the District Court relied 

heavily in his findings on the fact that no black lawyer had 

ever run for District Judge in Jefferson County because of fear 

of defeat. 

Finally, a black candidate for a statewide judicial office, 

the Texas Court of Criminal Appeals, received the majority vote  



  

in Jefferson County despite being defeated in the election. Morris 

Overstreet received the majority vote in Jefferson County against 

a white opponent, Frank Maloney, even though he lost the election 

on a statewide basis. 

iI. 

Attached to this motion as "Exhibit A" is a certified copy 

of the primary election returns for Jefferson County that verify 

the above described facts. The District Judges of Jefferson 

County ask this Court to take judicial notice of those facts and 

to permit the late filing of the Amicas Curiae brief being sub- 
  

mitted concurrently with this motion. 

Respectfully submitted, 

TOM RUGG 
Assistant District Attorney 
Jefferson County Courthouse 
Beaumont, TX 77701 

      

    

om Rugg 
Counsel for Amicus 

CERTIFICATE OF SERVICE 
  

By signature below, I do hereby certify to the Court that a 
true and correct copy of the document and an nents have 

rr 2 day of April, been sent by United States mail on this the 
1990, to all counsel of record. 

  

   



   
    

COUNTY         JEFFERSON 

  

LOLITA RAMOS 
HELEN CASSEL COUNTY CLERK PROBATE DEPARTMENT 

: (409) 835-8483 Chief Deput 
167 Jenuby P. 0. BOX 1151 COUNTY COURT at LAW 

BEAUMONT, TEXAS 77704 (409) 835-8479 

(409) 835-8475 

CERTIFICATION OF OFFICIAL ELECTION RESULTS 

I Lolita Ramos County Clerk of Jefferson County, Texas, do hereby 

certify that the attached are copies of the Official Election 

Results as tabulated by the County for the Democratic Primary, 

March 13, 1990, and the Democratic Primary Run-Off, April 10, 

1990. These are the results as recorded in Volume 7 of the 

Official Elections Returns kept on file in this office. 

LOLITA RAMOS 
County Clerk 
Jefferson County, Texas 

Katte Yt rnea) 
  

(EXHIBIT-A) 

 



FIMAL TOTAL rece RUM — OFF » Fage 

22:16:50 10-Apr-1990 Combined Regular and Absentee Ballots 

DEMOCRATIC FARTY RUN-OFF ELECTION 
JEFFERSON COUNTY 
AFRIL 10, 1990 

  

Count 2 Fercent 

iH: Precincts Counted - TOTAL | : 23 100.00 

Eallots Cast - TOTAL   
GOVERNOR 

ANN W. RICHARDS 12,136 
JIM. VATIOX , 4 guy fy wwe 12.9% 
Foie!» = on Tana 

48.29 
51.71 

100.00 

1 
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a
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a
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STATE TREASURER oiwiin 
TOM BOWDEN « . 
NIKKY VAN HIGHTOWER . 

  

er ll ei 
ote lu 03 

64.97 
ve 
15,279 

ik 

JUSTICE, SUFREME COURT, 
BOE GAMMAGE . . . 
  

ROSS SEARS . te 
Total . . 

      JULIGE , 
FRANK MALONEY . . 
MORRIS L. OVERSTREET 
  8 

phi Total ~ ™ " 

BRUCE HOFFER Eile 
JOHN FAUL DAVIS 

  

FLACE 

  

  

  

  

    

| : AJUDGE, COUNTY COURT AT LAW, NO. & 

20,591 

13,242 

100.00 

Phe UR 
19,992 

COURT OF CRIMINAL AFFEALS, FLACE 1 = 
9,590 

10,008 
17.598 

12,437 
12,405 

_£4,84z 

Democratic Party with the following results: 

Bruce Hoffer 
John Paul Davis 
    

  

  Total 

  

  

  

JUDGE, COUNTY COURT AT LAW, NO. ad 
12,523 
12,541 

126,033 

100.00 

100.00 

48.9 
21.07 

100.00 

ed GEE 

49.94 

“JA A manual recount was conducted on this race performed by. che... 

  

  

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| Count 

SCOMMISSIONER OF AGRICULTURE : 

4, IAM A KREMEK EET I le EN 1,198 4.47 

hd JOHN EARL SMITH Cr ey Hl 2.370 8.8% 

6] JIM HIGHYOWER BT ua LAT 18,547 70.65 

+7 HEAL BURNETT LT rR 1,162 A838, 

$i CLYLE MW CHANDLER inal - Sa. a su “BPD 2 

Si DIAN. FUSTEJOVSKY RET ER «254 2.80 iz 

hi PAUL MCDANIEL wi Rly 1,807 6.74 = 

1 Total 7. fe SENET RN 26,82; 100.00 iE 
° 16 

RAILROAD COMMISSIONER TT fe 

5h ROBERT (ROBY HRUEBER fo ui wir iw,y in 0d RD WAY 4+ TXERGI NY 30 §: ] iT 

Se BLINT HACKNEY RE a TRE LA 2.070. "52.87. ed 
hs Total at inl SAC JS 26,776 1.00.00 
17 

SICHIEF JUSTICE, SURREME COURT 
9 OSCAR H MAUZY ie lil TSE vL NR 19,025 100.00. 

<0 Total - wn N » . . - 19 +025: 1100 ,00 r 

JUSTICE, SUFREME COURT, FLACE 1 
A FRED RIERY CT RING NT LE 8,225% B57 .21 
AL. BENE KELLY RA RRR 13,818 GES no a 
£3 Total ER a 22,042 100.00 | 
oe 

24 JUSTICE, SUPREME _COURT, FLACE 2 ii 
i HOE GAMMAGE te Ty RR 7,804 of Jc 
i SCRAFFY HOLMES IE RO A WE 7,012 3.04 
2 RIBS. SEARS... n EON TR LEC Z 419 2, A 

a Ternt ol, + +e ee... 22,735 100.00 = 
--{ Ah] : kee “14 

3% JUDGE, COURT. _QOF__ CRIMINAL AFFEALS, FLACE 1 a4 

: | FRANK MALONEY IN SOR 8,006 45.62% ik 
0 MORRIS Lr OVERSTREETAE 0 I 9,108 30.54 a7] \ 
NS nd EEE AON HORM ewes TES gt SE rrr EE i 
2 Total . Teal a, 48 T10100.00 a 
3 jase haan 

| JUDGE, COURT _DE CRIMINAL. AFFEALS FLACE 2 Emde 2 
3 SAY HOUSTON CLINTON. «. Ww oo «  « 17,505 1.00.00 i= 

i Total. mein SR Ta 17,50% 100.00 55] 
I ee 56) 

3 JUDGE, COURT OF CRIMINAL. APPEALS, FLACE = Cn BI 

i BILL WHITE FE a Se 12,951 .0° 62.46. J 
2 FAT _BARBER Ce ENR a eZ IBA ATL SA 160 

* Tota) ie cE ag, LE, 20,735 100.00 S! 
47 62 
oa 33) 

2 JULGE,, COURT-OF CRIMINAL AFFEALS, PLACE 4 | . fn le 

os CHARLES F (CHARLIE): ‘BAIRD 4 DE 11,487. GUE a IE 

2 HERE HANCOCK Te 8,865 48,867 
te Tot al et RR DU ook TO Tha 20, 62 100.00 

Frecincts Counted - ROARD OF EDUCATION 7 Ee § 1 100.00 

E
H
 

{ i 

    

: FINAL TOTAL DEMOCRATI 

21382:14 12-Mar-1290 
IMARY ; 
ined Regular 

LEMOCRATIC FARTY FRIMARY ELECTION 
JEFFER 

and Absen voll lots 

  

  

  

MARCH. 13 
SON_COUNTY 

, 1990 
Fercent. 

    

  

  

      

  

      

   
  

  

     
   

  

  

      

  

        

  

    
   

  

  

  

    

      

  

  

  

  

    

  

  

  

  

    
  

  

  

    

Eaxllots Cant 1   BOARD OF EDUCATION 7 .     
  

  

    

   

  

   

    
   

    
3 \o.



FINAL TOTAL DEMOCRATIC @® @ 

21:52:15 13-Mar-1990 Combined Regular and Absentee Ballots 

. DEMOCRATIC PARTY FRIMARY ELECTION 
JEFFERSON COUNTY 

JIARCH, 18; 1990... 
  

: an Count Percent © 

“Inemper, STATE HOARD_OF ELUCATION, RISTRICT. 2... AE 
CAROLYN HONEA CRAWFORD . . . - «17 4277 100.00 

Total . . “iw . . - . . - w 37 HET 100.00 

  

  

i 6 
[ndemtemen suis 

7lerecincts Counted - STATE REPRESENTATIVE LIST 2012 100.00 

SH
EO
EE
EE
DO
DE
, 

W
i
n
 

  

—
 

pai lots Cast ~ STATE. REPRESENTATIVE NIST. 20.0% 

15
] 

STATE REFRESENMTATIVE, DISTRICT 20 

CURTIS BORE ie eo a le 2 R0 
KEW PELT « + oo eit feb luliioniii sie. te. 1 02 rai 

Tobal Wee Tina dT a a DAB 

wn
 

  

R
E
N
E
 

  

Sl Frecincts Counted —- STATE REPRESENTATIVE DIST 2117 100.00 

RI
NE

] 

  olEal lots. Last _—- SIATE BEERESEHIATIVE NIST <1 2,478 | 

FISTATE REFRESENTATIVE, DISTRICT 28. pi 
BARR ME ST ILES le a i a AL BAS 71.22 

2 CHHDY JEWMENG 8 ab ir ct Cee G0 28.78 
i TOLAY 0 We ialilete at eat Le TG, 07H 100.00 

SE | RO 
“Precincts Counted — STATE. REPRESENTATIVE DIST 2281 © 100.00. 

  

(J)
 
&=

C)
     

EJ
 

B 

BE rlatats Cast - ST’ TE REPRESENTATIVE DIST 22 11,868 
  

STATE REFRESEMTATIVE, DISTRICT 22 
BL RICE el Ye M0, 00   

  “Frecincts Cl quent STATE REPRESENTATIVE LIST 238s TNs 
Ce 

tat ote Cast - STATE REFRESENTATIVE IIST 23 14,2 
o 

SI GTATE REPRESENTATIVE, HESTRICT. 28 thy 
= FRANK COLLAZO JR IAS atid wi FAIZ 
ee SL SMITH ee i eo RIE 

: Total be ang Ta, ally « SmevTh voy 2,2 100.00 

YICHIEF JUSTICE, NINTH COURT OF APEEALS DNISTRICT Rl 
“ RONALD 4 WALKER: = oii oo ar oh ; 1008005 

TOUR ie ie re bara ati gs ig 345, 
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OO
 

  

  

  

  

El 
EEE 

REE) 
O
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QC 
© 

“4 DISTRICT JULGE, “8TH JUDICIAL DISTRICT 
~ MIKE BRADFORD A Mae TS 18, 100.00 

oi SEES ff 1%: SEPALS GUS WRU FeO SL A . 300,00 rrr   

) DISTRICT JUDGE, 172ND. JunIcraL DISTRICT tg Si i i 
DONALD J. ELOY or a 19,963. Log hota Ea 

Total TL. EH Te nae, 18, 19,961 100.00 
  

  = RISTRICY.. JUNGE.._252MI JUDICIAL DISTRICT 

i: LEONARD J GIBLIN JR “0 ui ov: ow Whi, 2a 100,00 : 
- Total oe 20,265, 100. 00. 
No raa———————————_ 1+ 

      
  

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DEMOCRATIC PARTY FRIMARY ELECTION 

le JEFEERSON L OUMTY 

    

i SF MAl tulal LERULKAL LL % 1 4 cc 

2:52:16 13-Mar-1990 Cohbtiined Regular and Absentee Tallots 

  

i VE MARCH 13, Slgee nb 
te] 

  

SIDISTRICT JUDGE, 279TH JUDICIAL BIS TRICT 
Count, 
  

7 ROBERT WALKER . . . . “he . . JLB En 

: Tota) v pe ri Hg BR ERT a" NEE RLY | —- 

. 6 

100.00 

100.00 

  

JUDGE, CRIMINAL DISTRICT COURT 
LARRY. GIBTe tai ov igs orifies youl, + od ey pe 100.00 

+ 

100500 
i 
    

iB 

I TOLRT a7 a beet meaner ida Dog 2A 
'0 

DISTRICT JUDGE, 317TH JUDICIAL DISTRICT 
EH JONES MH GITHY ERR TS em AB. 604 100,00   

CICRIMIMAL DISTRICT _AITORMEY 

Sr. Total lie a RR An oT 

  

Je TOM MONESSH tin fo i ih gl Sy a Cad, J ey 

ed Total - - LJ LJ - » " " . id - L 9 

100.00 
100.00 

  IS COUNTY 1°] COUNTY JUDGE. 
EY RICHARD F LEBLANCUR + wa x iow» 19,307 

100. 
  

2 JUDGE, COUNTY COURT AT LAW, MO. 1. 

] TRY a a a Ll l 1 OHO, 

Be AL ERED OE RON ter A paired SLE 100,00 
    2 JUDGE, COUNTY. COURT AT LAW, NO. 2 

  

2 Thad ied wm ein wi a ana is We SHAY SR 
100. OQ HEE 

    

  

i Es, FE RE “136 

joe HAROLD FLESSALA fe ARSE EEE ERE eae £ ME 100.00 BH 
We Total » - " - ” " [] [] » - - 18,114 100.00 9) 

40 
  

Ie - me mee Si 
JUDGE, COUNTY COURT A 
1 JOHN FAUL DAVIS 
A HUGH. DO" FIE Cr 

    

  

B4 BRUCE HOPPER BB HUGE 0 er ae 89908 20.49 3 
oe Total Ee 1s fui nie i ew £9,208 100.00 a7 

. : 14 6 
  

  

DISTRICT CLERK 
| JOHN S AFPLEMAN. 

  

en EE 19,580) 

    

  
  HORE LY, SLI Cie ET yg mee 

30 

“COUNTY CLERK 
Hoo LOLITA EAMOS - ry . a. n " ”, il ». ela 14é 
  

SH COUNTY. TREASURER 

43 Total a . ow eh ey . hs - " 22,146 

  

  

3 LINDA FARENT ROBINSON o Tle yng RE BEN 100.00 
hii Total oe SB i, la Lid WAL LTR, 888 100.00 
16 
  

  

“3 COUNTY SURVEYOR 

3H ouY A STONECIPHERS. oooh, oD, Gh 17,0080 
I RA Total Wt vs wil - » he a : i Te : - a ry Mn 17.642 ai 

  

  

Precincts Counted — COUNTY COMMISSIOHER FLT 2 20 100.00 

  

    5 Ballots Cast - COUNTY COMMISSIONER FCT. 2... 10,564: nig 

  

    
  

      

    

  

   

  

    

      

   

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IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) 

et al 

Plaintiff-Appellees, 

Versus 

JIM MATTOX, Attorney General of Texas et al 

Defendants-Appellants 

  

Appeal From The United States District Court 
for the Western District of Texas 

Midland-Odessa Division 

  

BRIEF OF AMICUS CURIAE 

JEFFERSON COUNTY DISTRICT JUDGES 

  

Tom Maness, District Attorney 

Tom Rugg, Asst. Dist. Attorney 

Jefferson County, Texas 
Jefferson County Courthouse 
Beaumont, TX 77701 

409-835-8550 

Counsel For Amicus 

April 26, 1990 

 



  

STATEMENT OF INTEREST OF AMICUS CURIAE 
  

The District Judges of Jefferson County are the current 

presiding judicial officers in one of the nine counties affected by the 

District Court's order of January 2, 1990, directing that non-partisan 

subdistrict elections be held as an interim remedy for alleged 

violations of the Voting Rights Act, 42 U.S.C. Section 1973. Although 

the District Judges of Jefferson County are not parties to this suit, 

they are in a unique position to offer aid to this Court in considering 

the issues specifically applicable to Jefferson County. 

As Amicus, the District Judges seek to bring to the 

Court's attention, recent developments that profoundly affect the 

trial court's ruling as it related to Jefferson County. More specifically, 

Amicus strongly believes that the election results in the most recent 

primary elections conclusively establishes that the District Court 

erred as to his factual findings about Jefferson County even if he was 

otherwise correct in the application of the Voting Rights Act in other 

counties. In other words, Amicus will show that even if the District 

Court was correct in finding that the Voting Rights Act applies to 

judicial elections; and that the evidence in all of the other counties 

justified a finding of violation in those counties - matters that are not 

conceded by Amicus, the District Court was still incorrect in finding 

a violation in Jefferson County. This is because the evidence is 

insufficient to support that conclusion. 

Amicus will demonstrate that the only named plaintiff 

in the case against Jefferson County, John Paul Davis, was himself 

 



elected in the recent county wide Democratic primary against two 

white candidates. 

Further, Amicus will show that a black District Judge 

was elected and that a black candidate for statewide judicial office 

received more votes in Jefferson County than did his white opponent. 

In light of the positions held by the District Judges, they 

have a strong and direct interest in the issues presented in this case. 

As Amicus, they have a special vantage point from which to assist 

the Court in reviewing important fact issues dealing with Jefferson 

County. 

 



TABLE OF CONTENTS 
  

Statement Of Interest of Amicus Curiae 

Table Of Contents 

Table Of Authorities 

Summary of Argument 

Argument 

I. The District Court's Finding Was 

Clearly Erroneous As To Jefferson 

County Under The Totality Of The 
Circumstances Test. 

A. Even assuming that the District 
Court, properly applied the three part 
test of Thornburg v. Gingles, which 
Amicus does not concede, the evidence 

was insufficient to establish polarized 

voting and that the white majority of 
Jefferson County votes as a bloc to 

usually defeat the minority preferred 
candidate. 

  

5 Be Even assuming that the evidence 

established the preliminary three part 
test of Thornburg v. Gingles, which 

Amicus does not concede, the evidence 

was insufficient to establish the 
"totality of the circumstances" test as 
required by Monroe v. City of 

Woodville. 

  

Conclusion 

Certificate Of Service  



TABLE OF AUTHORITIES 
  

CASES; 

Monroe v. City of Woodville, No.88-4433 slip 
Opinion (5th Cir. Aug. 30, 1989) 
  

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

STATUTES; 

Section 2, Voting Rights Act, 43 U.S.C. Sec. 1873 

 



  

NO. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) 

et al 

Plaintiff-Appellees, 

versus 

JIM MATTOX, Attorney General of Texas, et al 

Defendant-Appellant 

  

BRIEF OF AMICUS CURIAE 

DISTRICT JUDGES OF JEFFERSON COUNTY, TEXAS 

  

In compliance with Rule 29 of the Federal Rules of 

Appellate Procedure and Local Rule 29 of this Court, the District 

Judges of Jefferson County offer this as their Amicus Curiae brief. 

SUMMARY OF THE ARGUMENT 
  

Amicus joins in urging the Court to find that the Voting 

Rights Act does not apply to judicial elections; that the District Court 

improperly applied the standards for analysis of Section 2 of the 

Voting Rights Act as construed by the Supreme Court and this Circuit; 

and that the interim remedy devised by the District Court was 

improperly imposed without an evidentiary hearing in a manner 

 



  

more intrusive than required by the facts. Amicus adopts the 

various arguments of the Appellants and other Amicus Curiae on 

these issues. | | 

The thrust of this brief, however, is to point out to this 

Court that even if the above arguments are not successful, the 

District Court's holding as to Jefferson County was clearly erroneous 

because the evidence does not support a finding of Section 2 

violation, even under the improper standard applied by the District 

Court in this case. In other words, even if the law was properly 

applied by the District Court, the evidence before the District Court 

was insufficient to support a violation of the Voting Rights Act by 

Jefferson County. 

The evidence before the District Court was clearly lacking 

and his written findings and conclusions demonstrates that the 

evidence presented against Jefferson County at the time of trial 

consisted of two primary sources; (1) The testimony of Dr. 

Brischetto, an expert. witness, whose analysis of Jefferson County 

included almost entirely justice of the peace elections that are much 

less than county-wide (one of the only two county-wide elections 

analyzed was the 1988 Democratic Presidential primary in which the 

black candidate, Jesse Jackson, received the majority vote in the 

county); and (2) the testimony of John Paul Davis, the named Plaintiff 

in the lawsuit, who was previously defeated in a primary election for 

a County Court: At Law position by a white candidate, and who 

testified that black candidates do not run for District Judge because 

they can not win a county-wide election. (John Paul Davis' previous 

defeat was the other county-wide election analyzed by Dr. Brischetto, 

 



and John Paul Davis was elected against two white candidates in the 

recent Democratic primary election for County. Court At Law). See 

District Court Findings Of Fact And Conclusions Of Law, pp. 54-59, 74. 

Since the time of the trial, a black candidate filed for District Judge in 

Jefferson County and was elected without an opponent. 

Additionally, a statewide black candidate for the Texas 

Court of Criminal Appeals, Morris Overstreet, received the majority 

vote in the Democratic primary against a white opponent, despite 

losing the statewide election. 

The evidence before this Court clearly demonstrates that 

the District Court erred in concluding that Plaintiffs proved two of 

the three tests under Thornburg v. Gingles, 478 U.S. 30 (1986). The 
  

facts described above conclusively demonstrate that Plaintiffs failed 

in their burden of proof in establishing that voting in Jefferson 

County is racially polarized or that the white majority votes as a 

block to usually defeat the minority preferred candidate. Further, 

Plaintiffs in no way established by a "totality of circumstances" that 

as a result of the at large system they do not have an equal 

opportunity to participate in the political process and to elect 

candidates of their choice as required by Monroe v. City of Woodville, 

No. 88-4433, Slip Opinion at 5571 (5th Cir. Aug. 30, 1989). 

  

In light of the above, the District Court's findings against 

Jefferson County should be reversed and dismissed, or at a minimum 

be remanded for further consideration in light of this new evidence 

from the recent primary elections.  



  

ARGUMENT 

I. THE DISTRICT COURT'S FINDING WAS CLEARLY 

ERRONEOUS AS TO JEFFERSON COUNTY UNDER THE TOTALITY OF THE 

CIRCUMSTANCES TEST. 

  

Although Amicus in no way intends to concede the 

arguments put forward by various Appellants in this case that the 

Voting Rights Act does not apply to judicial elections, that the District 

Court improperly applied the standards for analysis of Section 2 of 

the Voting Rights Act, 42 U.S.C. Section 1973, and that the remedy 

devised by the District Court was overly broad and intrusive, the 

position of Amicus in this brief is that the District Court's Findings 

were clearly erroneous under its own improperly applied legal 

standards, because those Findings and Conclusions were not 

supported by the evidence. Quite simply, the Plaintiffs did not meet 

their burden of proof in establishing even the incorrectly applied 

legal standards. 

The District Court found that Thornburg v. Gingles, 478 

U.S. 30; 106 S.Ct. 2752; 92 L.Ed2d 25 (1986) requires a three part 

  

"threshold" test to demonstrate a violation of Section 2 of the Voting 

Rights Act, and that failure to prove any of the three criteria is fatal 

to Plaintiff's case. See District Court's Findings Of Fact And 

Conclusions Of Law, page 82. Amicus agrees that the first part of 

the test was met, that a sufficiently large and geographically compact 

minority population exists to constitute a majority in a single 

member district. Amicus strongly urges that, for reasons explained 

more fully below, the Plaintiffs clearly failed to prove as to Jefferson 

 



County the last two parts of the Gingles test as applied by the District 

Court: that voting is racially polarized and that the white majority of 

Jefferson County votes as a bloc to usually defeat the minority 

preferred candidates. 

As the Disirici Court correctly pointed out, Plaintiffs do 

not win by satisfying the three part "threshold" test of Gingles, but 
  

must further prove by a "totality of the circumstances," that as the 

result of the at large system of voting, Plaintiffs do not have an equal 

opportunity to participate in the political process and to elect 

candidates of their choice. See District Court Findings Of Fact And 

Conclusions Of Law, pp. 82-83. Amicus also urges for reasons 

described below, that Plaintiffs made no showing that such a totality 

of circumstances exist, and the recent primary elections conclusively 

establish that such circumstances do not exist. 

A. EVEN ASSUMING THAT THE DISTRICT COURT 

PROPERLY APPLIED THE LAW IN THIS CASE, THE EVIDENCE WAS 

INSUFFICIENT TO ESTABLISH POLARIZED VOTING AND THAT THE 

WHITE MAJORITY VOTES AS A BLOC TO USUALLY DEFEAT THE 

BLACK PREFERRED CANDIDATE. 

The case presented by Plaintiffs to prove the Gingles test 

relied almost entirely on two sources. First, expert testimony was 

presented by Dr. Robert Brischetto, who used 1980 census 

information to analyze Jefferson County voting patterns by the 

"multivariate regression analysis" method. It is significant that Dr. 

Brischetto did not analyze any District Court elections. Further, he 

only analyzed two elections that were county-wide in scope; (1) the 

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1988 Democratic Presidential primary in which the black candidate, 

Jesse Jackson, received a majority of the total votes cast; and (2) a 

County Court At Law election in which John Paul Davis, a black 

candidate, lost to a white opponent. The other four elections 

analyzed were justice of the peace elections, which did not all involve 

black candidates, and in which small portions of the county were 

analyzed rather than the entire county being reviewed. See District 

Court Findings And Conclusions, pp. 54-59. 

It borders on being incredible that such evidence could 

be found sufficient to establish the last two prongs of the Gingles 

test, even without the additional recent results of the primary 

elections in Jefferson County. The additional evidence of John Paul 

Davis' election over two white opponents, the county-wide majority 

vote for Morris Overstreet against his white opponent, and the 

county-wide election of a black District Judge, although unopposed, 

demonstrates conclusively that the very meager evidence upon 

which Dr. Brischetto based his highly doubtful analysis was not 

sufficient to carry Plaintiffs burden of proof. | 

The only other significant evidence referred to by the 

Court in support ot his findings against Jefferson County was the 

deposition testimony of John Paul Davis in which he stated that black 

lawyers do not run for District Judge positions because of the high 

probability of defeat. See District Court Findings And Conclusions, pp. 

58-59. As noted above, John Paul Davis has himself just run for a 

county-wide judicial position and been elected, and a black District 

Judge ran for election without opposition. That evidence of John Paul 

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Davis’ deposition testimony is also clearly insufficient to support the 

District Court's findings. 

B. EVEN ASSUMING THAT THE EVIDENCE ESTABLISHED 

THE PRELIMINARY THREE PART TEST OF GINGLES, THE EVIDENCE 

FAILED TO ESTABLISH THE "TOTALITY OF THE CIRCUMSTANCES" 

TEST REQUIRED BY THIS CIRCUIT. 

  

As the District Court noted in its opinion, Plaintiffs do not 

win by simply proving the threshold three part test of Gingles, which 

Amicus strongly urges was not done in this case. Even if by some 

stretch of the evidence that portion of the District Court's Findings 

could be upheld, there is simply no evidence to support a finding by 

the "totality of the circumstances” that as a result of the challenged 

at large system, Plaintiffs do not have an equal opportunity to 

participate in the political process or elect candidates of their choice. 

Monroe v. City of Woodville, No. 88-4433, slip opinion at 5571 (5th 

Cir. Aug. 30, 1989); Gingles, 478 U.S. at 44. 

  

In determining the totality of the circumstances, the 

District Court analyzed the nine objective factors set out in Senate 

Report No. 97-417 (1982), which it conceded were not 

comprehensive nor exclusive. See District Court Findings Of Fact And 

Conclusions Of Law, pp. 83-84. In making its findings on those legal 

factors, the District Court made only two such findings relevant to 

Jefferson County. First, the Court found some history of past 

discrimination against minorities in areas of education and access to 

the democratic system, referring to the case of City of Port Arthur v. 
  

12 

 



  

United States, 517 F. Supp. 987 (D.D.C. 1981). See District Court 

Findings Of Fact And Conclusions Of Law, p. 71. 

  

Second, the District Court again stated that no black 

lawyer "has run for the office of District Court Judge in Jefferson 

County," and referred to John Paul Davis' deposition testimony that 

black lawyers were fearful of defeat. See District Court Findings Of 

Fact And Conclusions Of Law, p. 74. As discussed above, that 

testimony is highly suspect since John Paul Davis himself has been 

elected county-wide and a black District Judge has also been elected 

county-wide without opposition. 

Those two isolated references by the District Court hardly 

constitute the type of "searching, practical evaluation", or "an 

intensely local appraisal of the design and impact of the contested 

electoral mechanism" required before the entire electoral process of 

a county government may be set aside and a hastily designed 

"interim" federal election system imposed. Gingles, 478 U.S. at 45 
  

and 798. It is clear from even a cursory reading of the District Court 

Findings that Jefferson County was given very little individual 

analysis, and was instead simply lumped together with the other 

counties in a sweeping opinion of the District Court. Any fair reading 

of the evidence in this case leads to only one reasonable conclusion; 

Plaintiffs failed to prove their case against Jefferson County and the 

District Court's finding of a violation of the Voting Rights Act was 

clearly erroneous. 

CONCLUSION 
  

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The District Court erred by finding that the at large 

election system in Jefferson County violates the Voting Rights Act. 

The evidence before the District Court at the time of the trial was 

clearly insufficient, and the additional primary elections results since 

that time conclusively establish that the District Court's Findings And 

Conclusions are not supported by sufficient evidence. Amicus 

respectfully urges that this Court reverse the Opinion And Order of 

the District Court and render judgment in favor of Jefferson County. 

Respectfully submitted, p 
  

  = we 
or i I 

Tom Maness— District pn Se 
By; Tom Rugg, Asst. Dist. Atto 
Jefferson County Courthouse ill 

Beaumont, Texas 77701 

Counsel for Amicus 

  

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CERTIFICATE OF SERVICE 
  

I hereby certify that on the 25th day of April 1990, a true and 
correct copy of the above and foregoing instrument was mailed to 
counsel of record in this case by first class United States mail, 
postage prepaid, addressed as follows: 

Mr. J. Eugene Clements 

Evelyn V. Keys 

Porter & Clements 

3500 NCNB Center 

P. O. Box 4744 

Houston, TX 77210-4744 

Darrell Smith 

10999 Interstate Hwy. 10, No. 905 
San Antonio, TX 78230 

Michael J. Wood 

440 Louisiana, Suite 200 

Houston, TX 77002 

William L. Garrett 

Brenda Hall Thompson 

Garrett, Thompson & Chang 

8300 Douglas, Suite 800 

Dallas, TX 75225 

Rolando L. Rios 

201 N. St. Mary's, Suite 521 

San Antonio, TX 78205 

Susan Finkelstein 

201 N. St. Mary's, Suite 600 

San Antonio, TX 78205 

Julius Levonne Chambers 
Sherrilyn A. Ifill 

99 Hudson Street, 16th Floor 

New York, N. Y. 10013 

Gabrielle K. McDonald 

Matthews & Branscomb 

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301 Congress Avenue, Suite 2050 

| Austin, TX 78701 

Attorney General Jim Mattox 

Mary F. Keller 

Renea Hicks 

Javiar Guajardo 
P. O. Box 12548 

Austin, TX 78701 

Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman 

3301 Elm Street 

Dallas, TX 75203 

E. Brice Cunningham 

777 South R. L. Thornton Freeway, No. 121 
Dallas, TX 75203 

Robert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Pallas, TX 75201 

Mike Ramsey 

2120 Welch 

Houston, TX 77019 

  

  

  

TE amass 
Tom Maness, District Atay 

Jefferson County, Texas 
Tom Rugg, Asst. District Attorney 

Jefferson County Courthouse 

Beaumont, TX 77701 

409-835-8550 

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