League of United Latin American Citizens (LULAC) v. Attorney General of Texas Reply Briefs in Opposition and Supplemental Brief in Support of the Petition for a Writ of Certiorari

    No. 93-630

In  The

Supreme Court of t\)t Hmtefc g>tateg
October Term , 1993

League of United  Latin American Citizens, Houston 
Lawyers’ A ssociation, J esse Oliver , et a l,

Petitioners,
v.

Attorney General of Texas, et a l,
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

REPLY TO BRIEFS IN OPPOSITION AND 
SUPPLEMENTAL BR IEF IN SUPPORT OF THE 

PETITION FOR A WRIT OF CERTIORARI

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 

*Charles Stephen Ralston 
Gailon W. McGowen, Jr . 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, N.Y. 10013 
(212) 219-1900

Sherrilyn A. Ifill 
University of Maryland 
School of Law 
500 W. Baltimore 
Baltimore, MD 21201 
(410) 706-8391

E. Brice Cunningham 
777 S. R.L. Thornton Frwy. 
Suite 121 
Dallas, TX 75203 
(214) 428-3793

Gabrielle K. McDonald 
Walker & Satterthwaite 
7800 N. Mopac 
Suite 215
Austin, Texas 78759 
(512) 346-6801

William L. Garrett 
Brenda Hull Thompson 

8300 Douglas, Suite 800 
Dallas, TX 75225 
(214) 369-1952

Rolando L. Rios 
Milam Building, Suite 1024 
115 E. Travis Street 
San Antonio, TX 78205 
(210) 222-2102

E dward B. Cloutman III 
Mullinax, Wells, Baab 
& Cloutman, P.C.
3301 Elm St.
Dallas, TX 75226 
(214) 939-9222

*Counsel of Record
Attorneys for Petitioners

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1

TABLE OF CONTENTS

I. The Petition for A Writ of
Certiorari Should Be Granted With 
Regard to All Issues ......................................  1

A. The Response of the Attorney General
of Texas, et al. .......................................  1

B. The Opposition of Judge Wood.....................  3

C. The Opposition of Judge Entz. . ...................  4

II. The Decision Below Is Inconsistent
With the Decision of the Third 
Circuit in Jenkins v Red Clay  Consol 
School District .....................    5

Conclusion 7



11

TABLE OF AUTHORITIES

Cases: Pages:

Houston Lawyers’ Association v. Attorney General of
Texas, 501 U.S.__ , 115 L.Ed.2d 379 (1991) . . .  3

Jenkins v. Red Clay Consolidated School District Board of
Education, 4 F.3d 1103 (3rd Cir. 1993)___ . . . .  5

Nipper v. Smith, 1 F.3d 1171 (11th Cir. 1993) . . . . . . . .  4

Red Clay Consolidated School District Board of
Education v. Jenkins, No. 93-812 .........................5

Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . . . . . . . .  3



No. 93-630

In  The

Supreme Court of tfje Hmteb States

October Term , 1993

League  of U nited Latin American Citizens, 
H ouston Lawyers’ Association, Jesse Oliver, et al.,

Petitioners,
v.

Attorney General of Texas, et al. ,
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

REPLY TO BRIEFS IN OPPOSITION AND 
SUPPLEMENTAL BRIEF IN SUPPORT OF THE 

PETITION FOR A WRIT OF CERTIORARI

I.
The Petition for A  Writ of Certiorari Sh o u l d  

Be  Granted With Regard to All Issues

A. The Response of the Attorney General of Texas, et al.
The respondents representing the State of Texas 

agree that certiorari should be granted on the third 
question presented by the petition, viz., the propriety of 
the court of appeals’ refusal to remand the case to the 
district court for a hearing on the proposed settlement of 
the case. This issue is also raised by the cross-petition for



2

certiorari filed by the State in No. 93-928. However, the 
State also suggests that certiorari not be granted on the 
other important issues raised.

We urge that, in the interest of judicial economy, 
all the issues should be accepted for review now.

First, one of the bases for the court of appeals’ 
refusal to remand for a hearing on the settlement was its 
view with regard to the merits of the case. Thus, the 
question of the merits will have to be considered by this 
Court in resolving the settlement question.

Second, even if this Court holds that the decision 
of the court of appeals with regard to the settlement was 
incorrect, it should reach the issues we have raised with 
regard to the correctness of the lower court’s decision on 
the merits to provide guidance to the courts below on 
remand.

Third, on the other hand, if this Court decides that 
the decision of the court of appeals with regard to the 
settlement was correct, the issues regarding the lower 
court’s decision on the merits will be ripe for review. In 
light of the importance of those issues to the continuing 
vitality of the Voting Rights Act, they should be resolved 
by the Court.

Fourth, this case has been travelling between the 
district court, the court of appeals, and this Court without 
an authoritative decision on the merits of the issues 
raised. In the meantime, three elections have been held 
and another is imminent. A final decision clarifying the 
legal standards under which judicial elections are to be 
held in the State of Texas and elsewhere is, therefore, 
manifestly appropriate.



3

B. The Opposition of Judge Wood.
Judge Wood’s arguments regarding the merits of 

the decision below are premature, and only emphasize the 
importance of granting certiorari. This case presents 
issues of substantial national importance regarding the 
efficacy of the Voting Rights Act that have, as yet, not 
been resolved by this Court. The parties have differing 
views as to whether the decision below complied with this 
Court’s mandate and decision in Houston Lawyers’
Association v. Attorney General of Texas, 501 U .S.__ , 115
L.Ed.2d 379 (1991). There is also a dispute over whether 
the decision below, particularly insofar as it holds that 
racial bloc voting can be explained away by partisan 
voting patterns and that elections not involving races 
between minority and white candidates should be factored 
into a vote dilution analysis, is consistent with Thornburg 
v. Gingles, 478 U.S. 30 (1986).

These are legal issues of the utmost importance 
since their resolution will govern the enforcement of the 
Voting Rights Act nationwide. Thus, it is well-known that 
African American voters tend to vote for Democratic 
party candidates for all levels of public office, while voters 
of other ethnic origin tend to vote for Republican 
candidates. The decision below imposes on plaintiffs in 
voting rights cases the additional and onerous burden of 
proving that racial bias, and not partisan politics, accounts 
for the inability of minority voters to elect candidates of 
their choice where such a voting pattern exists. Whether 
this result is a departure from the standards set by this 
Court in Gingles is presented by the first question in our 
petition for certiorari and should be resolved by this 
Court.

Judge Wood’s argument that there is no conflict 
between the Fifth and Eleventh Circuits is simply 
spurious. Nipper v. Smith, 1 F.3d 1171 (11th Cir. 1993) is



4

inconsistent with the decision below. Nipper governs 
decisions in the Eleventh Circuit and produces precisely 
the type of conflict with regard to an issue of great 
national importance that this Court sits to resolve.

C. The Opposition of Judge Entz.
The Brief in Opposition of Judge Entz consists 

largely of a dissertation on the impact of partisan politics 
on this litigation. Basically, Judge Entz is unhappy that 
the Democratic Party won elections to the offices that, 
under Texas law, have the authority to speak for the State 
of Texas in litigation. But the party affiliations of the 
current Attorney General, Governor, Lieutenant 
Governor, Secretary of State, majorities of the house of 
the State legislature, and the Chief Justice of the Texas 
Supreme Court are simply irrelevant to the issues 
presented by the petition herein.

The point is that the duly elected officials of the 
State of Texas have sought to exercise their authority to 
resolve this litigation through a settlement. Judge Entz’s 
disappointment with being on the losing side in the 
elections that chose those officials does not provide a 
basis for disapproving that settlement or even an issue 
properly justiciable by a federal court.



5

T h e  d e c is io n  B e l o w  is in c o n s is t e n t  W it h  t h e  
D e c is io n  o f  t h e  T h ir d  C ir c u it  in  Je n k in s  v. R e d  

Cl a y  C o n s o l . S c h o o l  D is t r ic t

Subsequent to the filing of the petition for writ of 
certiorari in this case, the decision of the Third Circuit in 
Jenkins v. Red Clay Consolidated School District Board of 
Education, 4 F.3d 1103 (3rd Cir. 1993) was reported.1 
That decision discusses whether and to what extent 
elections involving white-on-white contests should be 
factored into a Gingles analysis when the underlying 
claim is that the vote of minority voters has been diluted. 
The Third Circuit resolved this important issue in a 
manner inconsistent with the approach taken below.

In Jenkins the Third Circuit held that "As a general 
matter, we believe that elections involving white 
candidates only are much less probative of racially 
polarized voting than elections involving both black and 
white candidates." 4 F.3d at 1128. Therefore, plaintiffs 
are not required to present evidence regarding such 
elections. Rather, the burden is on the defendants to 
present such evidence if they believe it rebuts plaintiffs 
showing of cohesiveness or white bloc voting. Id. The 
Third Circuit went on to discuss a number of factors that 
the defendants must show before results of elections that 
do not involve black candidates can be used. Id. at 
1129.2

II.

'A petition for a writ of certiorari is pending sub nom. Red Clay 
Consolidated School District Board of Education v. lenkins, No. 93-812.

2The Third Circuit requires consideration of the following factors 
to determine whether a white candidate may properly be considered 
the black community’s preferred candidate: (1) the extent which the 
minority community has sponsored the candidate; (2) the attention



6

The Fifth Circuit here, on the other hand, imposed 
no such limitations on the use of such evidence. Rather, 
it relied solely on the unsupported proposition that 
partisan (i.e., Democrat v. Republican) voting patterns 
could explain away all evidence of racial bloc voting no 
matter what the race of the candidates. The use of such 
a proposition is inconsistent with the Third Circuit’s 
requirement that defendants present evidence that 
candidates who are not of the minority group at issue 
were the candidates of choice of the minority community 
based on specific criteria.

Certiorari should be granted to resolve the 
differences between the Third, Fifth and Eleventh Circuits 
with regard to this important issue.

which the candidate gave to the particular needs and interests of the 
minority community, including the extent to which the candidate 
campaigned in that community; (3) the rates at which black voters 
turned out in comparison to elections when a minority candidate 
sought office; and (4) the extent to which minority candidates have 
run and the ease or difficulty with which a minority candidate is able 
to run for office. 4 F.3d at 1129.



7

C o n c l u s io n

For the foregoing reasons, the petition for a writ of 
certiorari should be granted.

Respectfully submitted,

ELAINE R . JONES 
D ir e c t o r -C o u n s e l

Th e o d o r e  M. Sh a w  
* Ch a r l e s  St e p h e n  R a l s t o n

G a il o n  W . M c G o w e n , J r .
NAACP LEGAL DEFENSE & 

E d u c a t io n a l  F u n d , In c . 
99 Hudson Street 
Sixteenth Floor 
New York, N.Y. 10013 
(212) 219-1900

SHERRILYN A. If il l  
University of Maryland 
School of Law 
500 W. Baltimore 
Baltimore, MD 21201 
(410) 706-8391

E. B r ic e  Cu n n in g h a m  
777 S. R.L. Thornton Frwy. 
Suite 121 
Dallas, TX 75203 
(214) 428-3793

^Counsel of Record

G a b r ie l l e  K. M cD o n a l d  
Walker & Satterthwaite 
7800 N. Mopac 
Suite 215
Austin, Texas 78759 
(512) 346-6801

W il l ia m  L. G a r r e t t  
B r e n d a  H u l l  T h o m p s o n  

8300 Douglas, Suite 800 
Dallas, TX 75225 
(214) 369-1952

R o l a n d o  L. Rios 
Milam Building, Suite 1024 
115 E. Travis Street 
San Antonio, TX 78205 
(512) 222-2102

E d w a r d  B. C l o u t m a n  H I 
Mullinax, Wells, Baab 
& Cloutman, P.C.
3301 Elm St.
Dallas, TX 75226 
(214) 939-9222

Attorneys for Petitioners