Brief for the United States as Amicus Curiae Supporting Reversal

    Nos. 90-813 and 90-974 

  
  

In the Supreme Cot of the United Staten 
OCTOBER TERM, 1990 

HousTON LAWYERS’ ASS’N, ET AL., PETITIONERS 

v. 

THE ATTORNEY GENERAL OF TEXAS, ET AL. 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL., 
PETITIONERS 

2. 

THE ATTORNEY GENERAL OF TEXAS, ET AL. 

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING REVERSAL 

KENNETH W. STARR 

Solicitor General 

JOHN R. DUNNE 

Assistant Attorney General 

JOHN G. ROBERTS, JR. 
Deputy Solicitor General 

ROGER CLEGG 
Deputy Assistant Attorney General 

PAUL J. LARKIN, JR. 
Assistant to the Solicitor General 

JESSICA DUNSAY SILVER 

MARK L. GROSS 

Attorneys 

Department of Justice 

Washington, D.C. 20530 

(202) 514-2217 

  

   





  

QUESTIONS PRESENTED 

1. Whether the results test of Section 2 of the Voting 
Rights Act of 1965, 42 U.S.C. 1973, applies to the elec- 
tion of state court judges. 

2. Whether the results test of Section 2 of the Voting 
Rights Act of 1965 applies to the election of offices that 
can be held by only one person. 

  

(1) 

  
 



    

  
 



  

TABLE OF CONTENTS 

Intevest ofthe United States, ~ osc ia 0 ob 

Statement 

A. The structure of the Texas judicial system 

B. 

Summary of argument 

1. Districtecouria: = ci 

2. Specialized subject matter jurisdiction 
courts 

The proceedings inthis case... ..... oem einnncniiene 

1. The districbecourl’s decision ... ....................... 

2. The court of appeals’ decision 5. oo. 

Argument: 

The results test of Section 2 of the Voting Rights 

Act of 1965 applies to the election of Texas district 

court judges 

A. The amended version of Section 2 applies to the 

B. 

election of state judges 

The election of Texas district judges is not ex- 

empt from the Section 2 results test on the 

ground that district judges occupy “single per- 

goofs? | a a ah 

C. A state’s strong, nondiscriminatory reasons for 

at-large judicial elections are among the “totality 

of circumstances” that courts must consider in 

determining whether there has been a violation 

ol Section 2 i oo ioe. 

1. A “strong state policy divorced from racial 

discrimination” supporting at-large judicial 

elections is a “circumstance” for the courts 

to consider in determining whether Section 2 

hasbeen violated... 0 5 0 ila 

2. The district court did not consider whether 

the state has a strong, nondiscriminatory 

policy supporting the use of at-large judicial 

Cleebions oc td ene heme ans 

00
 

oH
 

OS
 

OU
 

ix
 

10 

11 

11 

12 

17 

7 

24 

  
 



  

IV 

Argument—Continued : Page 

a. A representative yet impartial judiciary.. 24 

b. Electoral accountability .. ........ ............ 29 

C. Soecinlized COUTTS... oie tse socmnzmssmmosmt 27 

d. Administrativebenefits.... .......... ............ 28 

e. Other aspects of at-large judicial elec- 

ETT Ae Ral SAS 28 

CONCIIBION ........ .o.ooiravsssiokumasmmmmsnnsssnnmminmnarinottbinat ss siibitalichonsssh 29 

ADLENAIX ............ocoiriiiimmimmin IIR ses bh Ba BIN NEL Side la 

TABLE OF AUTHORITIES 

Cases: 

  
Bolden v. City of Mobile, 571 F.2d 238 (5th Cir. 

1978), rev'd, 446 U.S. 55. (1980)-......ccoociiivinnue 20,21, 22 

Bradas Vv. Rapides Parish Policy Jury, 508 F.2d 

1109 Gth Cir. 1975) ........ oom 20 
Bradley v. Swearingen, 525 S.W.2d 280 (Tex. 

Civ, ADU, 1975) ............0cciitiinintiiiiniiiseadesibsge 5, 27 
Butts v. City of New York, 779 F.2d 141 (24 Cir. 

1985), cert. denied, 478 U.S. 1021 (1986) ........... 13, 14 
Chapman ¥. Meier, 420 U.S. 1 (1973). ii sven. 25 

Chisom Vv. Edwards, 839 F.2d 1056 (5th Cir.), 

cert. denied, 488 1.8.. 955. (1983) ...ccoccieininaa-e. 6 

City of Mobile Vv. Bolden, 446 U.S. 55 (1980)....10, 11, 25 

City of Port Arthur v. United States, 459 U.S. 159 

L082 Nore o.oo il rssicon nal seiasitsinahnsin vos iat Sininpinius a 14 
Dallas County v. Reese, 421 U.S. 477 (1975) ........ 25 

Dawid Vv. Garrison, 553 F.2d 923 (5th Cir. 1977) .... 19, 20, 

2 
Dillard v. Crenshaw County, 831 F.2d 246 (11th 

Sie LoS Sar Cl Baer eon i ER 14 

Dusch V. Davis, 387 U.S. 112:(1967) ...coniccail..... 25 

Fortson V. Dorsey, 379 U.S. 4338 (1963)...........i....... 18, 25 
Hendrix v. Joseph, 559 F.2d 1265 (5th Cir. 1977) .. 20, 22 

Jernigan V. Jernigan, 467 S.W.2d 621 (Tex. Civ. 

ADD. 07 T) ihre 3 

Kendrick v. Walder, 527 F.2d 44 (7th Cir. 1975) .... 22 

   



  

Cases—Continued: Page 

League of United Latin American Citizens Coun~- 

cil No. 4434 V. Clements : 

902 F.24 293 (51h Cir. 1990) Lidia nari bitin. 8 
902. F.2d 322 (Sth Cit. 1990) ...........v.coibii.. uni 8 
014 F.2d 620 (Bth Cir. 1990) ........ niin iil 8 

Lord v. Clayton, 163 Tex. 62, 353 S.W.2d 718 
OGL) ee i ens 4 

McGill v. Gadsden County Comm’n, 535 F.2d 277 

(Oth Cir. 1976)... eel hill ho. 20 
McMillan Vv. Escambia County, 638 F.2d 1239 (5th 

Civ AY ne eile Sih 22 
Moore Vv. Leflore County Bd. of Election Comm'rs, 

502 P2363 (SIN Cir. 1974) ..noooeeeeeeee 20 
Nipper v. U-Haul Co., 515 S.W.2d 467 (Tex. Civ. 
ADD 10) roses 3 

Parnell v. Rapides Parish School Bd., 563 F.2d 

180 (Sth Cir. 1977) ees 20 
Reed v. State, 500 S.W.2d 137 (Tex. Crim. App. 
{1p vei aati neil ida A Nt 4 

Reynolds Vv. Sims, 377 U.S. 533 (1964)... 17 

Richards, Ex parte, 137 Tex. 520, 155 S.W.2d 597 

(LIL) ivrrosinninsoimsnistine stds. dori on h ... 4 
Robinson Vv. Anderson County Comm’rs Court, 505 

F24.674 (5th Civ. 1974)... 0 Ja ao... 19 
Southern Christian Leadership Conference V. 

Siegelman, 714 F. Supp. 511 (M.D. Ala. 1989) _. 14 
Thornburg Vv. Gingles, 478 U.S. 30 (1986) ..... 6,11, 12, 13, 

15, 19,23 
Turner V. McKeithen, 490 F.24 191 (bth Cir. 

560 SR ee 19 
United States v. Dallas County Comm. 850 F.2d 

1430 (I1th Cir. 1088) i as arrsricees 14 
Wallace v. House, 515 F.2d 619 (5th Cir. 1975), 

vacated, 425 U.S 047 (1976) >. > 2 = “l=. == 22 
Wells v. Edwards, 409 U.S. 1095 (1973), aff’g 347 

PF. Supp. 453 (M.D. 1a. 1972) oon ii 0. 8 
Westwego Citizens for Better Gov't v. Westwego, 

S72F.24.1201 (5th Cir. 1989)... vy. xt... 28 
Whitcomb v. Chavis, 403 U.S. 124 (1971) .......... 10,15, 18, 

19, 20, 23 
White v. Regester, 412 U.S. 755 (1973) .............. 15, 18, 23  



    

VI 

Cases—Continued : Page 

Zimmer V. McKeithen, 485 F.2d 1297 (5th Cir. 

1973), aff’d sub nom. East Carroll Parish School 

Bd. v. Marshall, 424 U.S. 636 (1976) ......... 10, 15, 18, 19, 
26,21, 22,25 

Zulauf v. State, 591 S.W.2d 869 (Tex. Crim. App. 
X79). A LA 5, 24 

Constitutions, statutes, and regulation: 

US. Const. Amend. XIV ........ 00 0 JLo. 0k... 13 

Tex. Const. : 

Art. 5: 

EEE TE ee ee hae 5 
Sen HI 8 Sl Ce Ss ee 3 
37a(l)y (1990)... cco caine een. 2.3.26 
LRT RLY Ya SL NE i 2 
8 0 a Lg GR Sl 5 
SISA) (1090) ......oocon reine niin rene trice:S 26 
SOB I984Y ae. 3 

Voting Rights Act of 1965, Pub. L. No. 89-100, 

79 Stat. 437: 

30.42 U.8.C. 1978 dnl passim 

32(b), £2U.8.C. 1973 (0) .......coccvvee ina 8,9,10,15, 17 
35,42 0.8.0. 1973¢: 0 0... un nL 2,9 
314(c)(1), 2 U.S.C. 19731(c) (1) ..... con l 9 

Tex. Civ. Prac. & Rem. Code Ann. § 15.001 (Ver- 
non 1986) ll noon Raia a § Sin eiim 3 

3315.001-15.040 .......o..... 3 

Tex. Code Crim. Proc. Ann. Art. 13.10 et seq. 

(Vernon 1997). me ue el 3 

Tex. Election Code (Vernon 1986) : 

CE WL erie sn le i ie TR 3 

Tex. Gov't Code Ann. § 24.101 et seq. (Vernon 

51 OE AG DT TL i A EL 2 

8 Na br SE OLN ae AR TETAS 2 
SR ER BP Tr Ch BD CAT 4 
3374.046-74.060 1. ..... - ........ 0 4 

Tex. Civ. Jur. 3d Venue $8 1-99 (1990) ..................... 3 
CEPR. 31.55() (2). aa, 2 

   



  

VII 

Miscellaneous: Page 

The Federalist No. 10 (J. Madison) (C. Rossiter 

ed. JOB) ome on me 25 

Note, Applying Section 2 of the Voting Rights Act 

to Single-Member Offices, 88 Mich. L. Rev. 2199 
(1000). A 15 

S. Rep. No. 417, 97th Cong., 2d Sess. (1982) ....7, 15, 19, 20, 

21,22,28 

Tex. Judicial Council, Texas Judicial System: 61st 

Avital Report (T9089) =... lesi av oo 7 2.4.5 

 



  
 
 

 
 

 
 

 



  

In the Supreme Gout of the United States 
OcTOBER TERM, 1990 

No. 90-813 

HousTON LAWYERS’ ASS’N, ET AL., PETITIONERS 

v. 

THE ATTORNEY GENERAL OF TEXAS, ET AL. 

No. 90-974 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL., 
PETITIONERS 

. 

THE ATTORNEY GENERAL OF TEXAS, ET AL. 

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING REVERSAL 

INTEREST OF THE UNITED STATES 

This case, like Chisom Vv. Roemer, No. 90-757 (consol- 
idated with United States Vv. Roemer, No. 90-1032) in- 
volves the application of the vote dilution analysis of 

Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 
1973, to state judicial elections. The United States has 
the primary responsibility for enforcing Section 2, and 
the decision of the Court in this case will have an im- 

(1)  



    

2 

portant effect on federal enforcement efforts. In addi- 
tion, the Attorney General is responsible under Section 
5 of the Voting Rights Act for preclearing voting changes, 

and under existing regulations must withhold preclear- 
ance if he concludes that such action “is necessary to 

prevent a clear violation of amended section 2.” 28 C.F.R. 
51.55(b) (2). This decision therefore will affect the 
manner in which the government reviews proposed vot- 
ing changes in judicial election procedures under Section 
5. The United States filed an amicus curiae brief when 
the case was heard by the panel and the en banc court, 
and presented oral argument to the en banc court. 

STATEMENT 

A. The Structure Of The Texas Judicial System 

1. District courts. Texas district courts are the 

State’s trial courts of general jurisdiction. Tex. Const. 
Art. 5, § 8; see generally Tex. Judicial Council, Texas 
Judicial System: 61st Annual Report. 10-17 (1989) 

[hereinafter Judicial Report]. The Texas legislature cre- 
ates district court seats as the need arises, assigns the 
seats individual numbers, and defines the geographic area 
that they are to encompass. Tex. Gov't Code Ann. 
§ 24.101 et seq. (Vernon 1988). With one exception, all 
of the district court seats at issue in this case encompass 
single counties.! A 1985 amendment to the Texas Con- 
stitution allowed redistricting, on the approval of the 
voters, of district court seats into districts consisting of 
portions of counties. Tex. Const. Art. 5, § 7a (i). 

District court judges are elected to office for four-year 

terms through at-large, countywide elections. Candidates 

1 The 72nd Judicial District encompasses Lubbock and Crosby 

counties. See Tex. Gov't Code Ann. § 24.174 (Vernon 1988). 

2 Although Art. 5, § 7a (i) permits voters to create subcounty dis- 

tricts, it is not clear whether a court so created could still exercise 

county-wide authority. 

   



  

3 

run for numbered seats in partisan contests. Tex. Const. 

Art. 5, § 7Ta(i). While party primaries require a major- 
ity of votes to be nominated, the general election requires 
only a plurality to win. Tex. Election Code § 172.003 
(Vernon 1986). Interim district court vacancies are 
filled by gubernatorial appointment. Tex. Const. Art. 5, 
§ 28. See generally 90-813 Pet. App. 190a-191a. 

The jurisdiction of Texas district courts is statewide, 
while venue (7.e., the designation of which court with 
competent jurisdiction should hear a case) is determined 
by county. See Nipper v. U-Haul Co., 516 S.W.2d 467, 
470 (Tex. Civ. App. 1974).2 The venue rules regarding 
the county in which a case should be filed are defined by 
general laws, see Tex. Civ. Prac. & Rem. Code Ann. 
$ 15.001 (Vernon 1986); Tex. Code Crim. Proc. Ann. 

Art. 13.10 et seq. (Vernon 1977), or by the mandatory 
or permissive provisions of particular statutes, see, e.g., 
Tex. Civ. Prac. & Rem. Code Ann. §§ 15.011-15.040 
(Vernon 1986); see generally 72 Tex. Jur. 3d Venue 
§§ 1-99 (1990). 

District courts conduct proceedings at the county seat 

of the county in which the case is pending. Tex. Const. 
Art. 5, § 7. Jury selection, case assignment, and record 

retention are handled on a countywide basis. See, e.g., 

S Tr. 267; 4 Tr. 255-256 (lawsuits in Harris County 
are filed at a central intake division and are randomly 
assigned to a district court, as are county residents re- 

porting for jury duty), 4 Tr. 144 (Dallas County). Ad- 
ministrative coordination extends across counties as well. 

Distriet court judges are sometimes assigned to hear 
cases in district courts in other counties, 5 Tr. 120, and 

8 Nipper held that the Travis County district court had jurisdic- 

tion over a claim arising in Bexar County, and that the parties, 

both of whom lived in Bexar County, had waived their venue right 

to have the case transferred to Bexar County. See also Jernigan V. 

Jernigan, 467 S.W.2d 621 (Tex. Civ. App. 1971) (drawing same dis- 

tinction between jurisdiction and venue).  



    

4 

this practice has been upheld against the challenge that 
judges have jurisdiction only in their own counties. Reed 
V.. State, 500 S.W.2d 137, 138 (Tex: Crim. App. 1973). 
Under Texas law, the district courts of the State are 

divided into nine multicounty administrative judicial 
regions. See Tex. Gov't Code Ann. § 74.042 (Vernon 
1988). The presiding judge of each region is granted 
authority to promulgate regional rules of administration, 

advise judges on case flow management, recommend or- 
ganizational changes to the Supreme Court, and oversee 
the assignment of judges within and between regions. 
Id. §§ 74.046-74.060. 

2. Specialized subject matter jurisdiction courts. Al- 

though the state legislature cannot restrict the constitu- 

tional jurisdiction of district courts,* laws containing 

new district court seats often express the intent that the 

judges elected to these posts give preference to certain 
types of matters. In this manner, the legislature has in- 
structed certain district courts to give preference to 
family law matters, criminal matters, civil cases, or some 

combination of these areas, and some others appear to 

possess an informally designated subject-matter spe- 
cialty. Judicial Report 17-19. Specialty courts are gen- 
erally employed in populous, metropolitan counties. Id. 

at 10-11. Since these counties have many district courts, 
subject-matter preferences can be allocated among dis- 
trict court judges so that relatively large numbers of 
seats are assigned to each specialty.’ 

4 See, e.g., Lord Vv. Clayton, 163 Tex. 62, 67, 353 S.W.2d 718, 721- 

722 (1961) ; Ex porte Richards, 137 Tex. 520, 155 S.W.2d 597, 599 
(1941). 

5 According to the most recent report of the Texas Judicial Coun- 

cil, the 59 district court seats in Harris County are assigned subject 

matters as follows: 31 courts have general district court jurisdiction 

or a civil preference; 16 courts have preference for criminal cases; 

and 12 courts specialize in family law. Judicial Report 54. The 37 

seats in Dallas County are divided as follows: 13 courts have gen- 

eral district court jurisdiction or a civil preference; 15 courts are 

   



5 

3. Other courts. There are 14 intermediate courts of 
appeals providing appellate review of the judgments of 

the district courts. Each such appellate court has be- 
tween 3 and 13 justices, all of whom are elected in par- 
tisan elections from geographic districts. Judicial Report 
10-11. The jurisdiction of these appellate courts is “co- 
extensive with the limits of their respective districts.” 
Tex. Const. Art. 5, § 6. The two courts of last resort in 

the State, the Supreme Court and the Court of Criminal 
Appeals, have nine justices each, all of whom are elected 

in statewide at-large partisan elections. Judicial Report 
10. 

The Texas system also includes county courts, muni- 

cipal courts, and justice of the peace courts. Justices of 

the peace are elected from ‘“‘commissioner’s precincts,” 
which divide each county into between four and eight 
subdistricts. Tex. Const. Art. 5, § 18. In larger counties, 

more than one justice of the peace may be elected from 
each commissioner’s precinct. Ibid. The Texas courts 

have held that justices of the peace have countywide ter- 
ritorial jurisdiction despite their election from individual 
precincts. See, e.g., Zulauf v. State, 591 S.W.2d 869, 872 
& n.5 (Tex. Crim. App. 1979); Bradley v. Swearingen, 

525 S.W.2d 280, 282 (Tex. Civ. App. 1975). 

assigned a criminal preference; and 9 courts are designated as family 

courts or assigned a family law preference. Id. at 45. Tarrant County 

has 11 courts with general jurisdiction or a civil preference; 11 

courts with a criminal preference or designation; and 7 courts with 

a family law preference. Id. at 76. Jefferson County has 4 courts of 

general district court jurisdiction; 2 courts handling criminal mat- 

ters; and 2 courts handling family law. Id. at 58. One of Travis 

County’s 13 district court judges is assigned a criminal preference, 

td. at 78, and one of Midland County’s three courts is designated as 

a family court, id. at 66. Ector and Lubbock Counties do not use 

specialized courts. Id. at 48, 63.  



      

6 

B. The Proceedings In This Case 

The plaintiffs, black and Hispanic voters residing in 

nine Texas counties, ¢ filed this suit on July 11, 1988, 

alleging that the use of an at-large election scheme to 
elect state district court judges in these counties diluted 
the voting strength of black and Hispanic voters, in vio- 
lation of Section 2 of the Voting Rights Act of 1965, 42 

U.S.C. 1973. After a bench trial, the district court found 
that the plaintiffs had proved violations of Section 2 in 
each county. See Pet. App. 183a-304a. 

1. The district court’s decision. At the outset, the dis- 

trict court held that Section 2 applies to the election of 
judges. The court rejected the State’s argument that 
Section 2 does not apply to the election of trial judges 
since trial judges act individually, not collegially. Rely- 
ing on the Fifth Circuit’s decision in Chisom Vv. Edwards, 

839 F.2d 1056, ceri. denied 433 US, 955 (1983) 
(Chisom I), the court held that Section 2 applies to all 
judicial elections. Pet. App. 289a & n.32. 

The court then applied the vote dilution test set forth 
in Thornburg Vv. Gingles, 478 U.S. 30 (1986), to analyze 
plaintiffs’ claims. The court found that plaintiffs had 
shown, in each county, (1) the existence of a minority 

group (black, Hispanic, or both) of sufficient size and 
geographical compactness to constitute a majority in a 

single-member district; (2) political cohesiveness within 

6 These nine counties are: Harris County, which has a population 

of more than 2,400,000 and chooses 59 district court judges in at- 

large elections; Dallas County, which has a population of more than 

1,500,000 and elects 37 judges at-large; Tarrant County, which has 

more than 860,000 people and elects 23 judges at-large; Bexar 

County, whose population of nearly 1,000,000 chooses 19 judges in 

at-large elections; Travis County, which elects 13 judges and has a 

population of nearly 420,000; Jefferson County, which has 8 judges 

and more than 250,000 people; Lubbock County, with 6 judges and 

more than 211,000 people; Ector County, with 4 judges and more 

than 115,000 people; and Midland County, whose 82,000 plus resi- 

dents elect 3 judges at-large. 90-813 Pet. App. 200a-209a. Herein- 

after we will use “Pet. App.” to refer to the petition appendix in 

90-813. 

   



7 

that minority group; and (3) racial bloc voting by the 

white majority that had consistently defeated the pre- 
ferred candidates of the minority group. Pet. App. 289a- 
801la; see id. at 210a-273a. The court also found 

relevant three other factors drawn from the Senate 
Judiciary Committee Report accompanying the 1982 
amendments to the Voting Rights Act, see S. Rep. 
No. 417, 97th Cong., 2d Sess. 28-29 (1982) [hereinafter 
Senate Report]: the effects of past discrimination on 
minorities in Texas and the historical domination of the 
Texas judicial system by whites; use of numbered posts 
and a majority vote requirement in primaries; and the 

large size of five counties (Harris, Dallas, Tarrant, 

Bexar, and Travis). Pet. App. 273a-277a. The court 
also noted that minorities had not enjoyed electoral suc- 
cess since 1980. Id. at 279a-281a. 

The State maintained that at-large elections were nec- 

essary for several reasons: Judges elected from areas 

smaller than the existing county-wide districts would be 
susceptible to influence by organized crime and special 
interest or political groups; the at-large system had ad- 
ministrative advantages that would be lost if courts had 
less than county-wide jurisdiction; and modifying the 
present at-large system would be unduly costly. Pet. 
App. 281a. The State also maintained that judges should 
be elected from the same area in which they exercised 
their primary jurisdiction, and that members of the 
electorate would be disenfranchised in counties that used 
specialized courts if persons could not vote for judges 
who exercise each type of subject matter jurisdiction. 
Id. at 281a-282a. 

The district court found none of these arguments per- 
suasive. It concluded that jury selection and other ad- 

ministrative functions could still be handled centrally on 
a county-wide basis, Pet. App. 284a, and that no com- 
pelling state policy required specialty court designations 
to be retained, id. at 283a-285a." In sum, the court 

  

7 The district court also rejected the State’s defense that partisan 

politics and not race explained the results of elections in counties  



  

    
  

8 

found, based on the totality of the circumstances, that 

the plaintiffs had proved a violation of Section 2. Id. at 
300a-301a.8 

2. The court of appeals’ decision. The defendants ap- 
pealed, and the en banc court of appeals reversed by a 
divided vote. League of United Latin American Citizens 
Council No. 4434 Vv. Clements, 914 F.2d 620 (5th Cir. 
1990) (LULAC) (Pet. App. 1a-182a).° The court held 
that although Section 2 generally applies to judicial elec- 
tions, the vote dilution test of Section 2(b) does not, be- 

cause judges are not “representatives” under Section 

2(b) or as a general matter. Pet. App. 14a-35a. 
The court noted that the concept of minority vote 

dilution was modeled on the vote dilution standards de- 
veloped in “one-person, one-vote” cases and that by 1981 
numerous federal court decisions, including one by this 
Court—Wells v. Edwards, 409 U.S. 1095 (1973), sum- 
marily aff’g 347 F. Supp. 453 (M.D. La. 1972) (three- 
judge court)—had ruled that “the judicial office is not a 
representative one, most often in the context of deciding 
    

where political party primaries were not the impediment to minority 

electoral success. Because the court of appeals held that judges are 

exempt from the results test of Section 2, it did not address this 

issue. 

8 In January 1990, the district court entered an order postponing 

upcoming elections until November 1990 in order to give the Texas 

legislature additional time to enact its own remedy. The court of 

appeals thereafter stayed the district court’s order, permitting the 

elections to go forward. 

9 A panel also initially reversed the district court’s judgment. 

League of United Latin American Citizens Council No. 4434 V. 

Clements, 902 F.2d 293 (5th Cir. 1990). The majority held that 

Section 2 of the Voting Rights Act applies to the election of judges, 

902 F.2d at 295-303, but that the results test of Section 2 does not 

apply to Texas trial judges, since they occupy “single person” or 

“single member offices,” id. at 303-308. Judge Johnson dissented. He 

agreed with the majority that Section 2 applies to judicial elections, 

but he did not believe that trial judges in Texas hold “single member 

offices.” Id. at 309-321. The court then decided to rehear the case 

en banc. 902 F.2d 322 (1990). 

 



9 

whether the one-man, one-vote rubric applied to judi- 
cial elections.” Pet. App. 16a; id. at 16a n.9 (collecting 
cases). Applying the canon of construction that Con- 

gress is presumed to be aware of and endorse ‘the uni- 

form construction” placed on a term, id. at 24a, the ma- 

jority determined that Congress used the term “represen- 
tatives” in order to apply the new results test of Section 
2 to elections for representative, political offices but not 
to vote dilution claims in judicial contests. Id. at 16a- 
27a. The majority found unpersuasive the fact that the 
definitional provision of the Act, 42 U.S.C. 1973Il(c) (1), 

defined “voting” by reference to ‘candidates for public 
or party office,” because the term “representatives” in 
Section 2 was more specific. Pet. App. 27a-29a. Because 

Section 5 of the Voting Rights Act does not use the word 
“representatives,” the majority also found irrelevant the 
fact that Section 5 applies to judicial elections. Pet. App. 
29a. 

Six members of the en banc court, in three separate 
opinions, concluded that the dilution test of Section 2 
applies to judicial elections. Judge Higginbotham, joined 

by three other judges, concluded that the term ‘“repre- 
sentatives” encompasses elected judges. Pet. App. 5la- 
90a. He nevertheless concluded that the at-large election 
of trial judges in Texas does not violate Section 2 since 
each trial judge, like each governor, occupies a so-called 
“single member office” whose electorate cannot be further 

subdivided. In such instances, he said, electing all trial 

judges on an at-large basis does not dilute minority vot- 
ing strength. Id. at 90a-114a. Concurring specially, 
Chief Judge Clark said that he agreed with Judge Hig- 
ginbotham, adding that vote dilution analysis might be 
appropriate when a State elects its judges from single- 
member districts. Id. at 36a-46a. Judge Johnson dis- 
sented. In his view, the Section 2(b) vote dilution test 

applies to judicial elections, and the “single member 
office” exception did not apply to district court judges in 

Texas, because there were multiple officeholders at that 
level. Pet. App. 115a-182a. 

a
 

 



    

10 

SUMMARY OF ARGUMENT 

A. The results test of Section 2 of the Voting Rights 

Act of 1965 applies to the election of state court judges. 
The original version of Section 2 of the Voting Rights 
Act covered the election of judges, and the amended ver- 
sion of Section 2 did nothing to change that. Congress 
did not amend the law to shorten its reach; instead, Con- 
gress revised Section 2 to enact the “results” test that 

this Court had rejected in City of Mobile Vv. Bolden, 446 
U.S. 55 (1980). Thus, amended Section 2, like its pred- 

ecessor, covers every election for public office. 
The Fifth Circuit erred in ruling that the term “rep- 

resentatives” in Section 2(b) exempts the election of 
judges from the results test of the statute. The legisla- 
tive history of the 1982 amendments does not indicate 
that Congress used that term in order to limit the scope 
of Section 2. Congress used that term interchangeably 
with “candidates” and “elected officials” to refer to those 
elected to public or party office. The “one person, one 
vote” line of decisions holding that judges are not rep- 
resentatives is inapplicable here, since racial vote dilu- 
tion differs from geographic vote dilution. 

B. The “single member office” doctrine is inapplicable 
to this case. That doctrine recognizes that a minority 
cannot prove a case of vote dilution when there is only 
one person who can hold a unique office. District court 
posts in Texas, however, are not unique. Each office is 

identical to every other such office. It is immaterial that 
each judge holds an office separately designated as a spe- 
cific district court, because there is no functional differ- 

ence between the differently enumerated district courts. 

C. The courts must consider a strong, nondiscrimina- 
tory state interest among the “totality of circumstances” 
under Section 2. This Court in Whitcomb v. Chavis and 
the Fifth Circuit in Zimmer v. McKeithen endorsed con- 
sideration of this factor. Although it does not “trump” 
proof of vote dilution, such an interest can spell the dif- 
ference between a finding of unlawful vote dilution and 

   



11 

a lawful state electoral practice. In this case, the district 
court did not apply the correct legal standard to the facts, 
so the case should be remanded for further proceedings. 

ARGUMENT 

THE RESULTS TEST OF SECTION 2 OF THE VOT- 
ING RIGHTS ACT OF 1965 APPLIES TO THE ELEC- 
TION OF TEXAS DISTRICT COURT JUDGES 

A. The Amended Version Of Section 2 Applies To The 

Election of State Judges 

The district court found that the Texas at-large sys- 

tem of electing trial judges violates Section 2 of the Vot- 
ing Rights Act under the standard that this Court ap- 
plied in Thornburg v. Gingles, 478 U.S. 30 (1986). The 
Fifth Circuit concluded that the Section 2 results test 
does not apply to judicial elections and therefore had no 
occasion to address the correctness of the district court’s 
application of Gingles to the facts of this case. The 
questions, then, are whether the results test of Section 2 
applies to judicial elections and, if so, how that test ap- 
plies in such a case. 

In Chisom Vv. Roemer, No. 90-757 (consolidated with 

United States Vv. Roemer, No. 90-1032), we have taken 

the position that the results test of Section 2 applies to 
the election of state judges.’ As we explain in our 
brief in that case, the original version of Section 2 of the 
Voting Rights Act of 1965 covered the election of judges, 
and the amended version of Section 2 also applies to judi- 
cial elections. Congress did not amend that statute to 
shorten its reach; instead, Congress revised Section 2 in 

order to enact the “results” test this Court rejected in 
City of Mobile Vv. Bolden, 446 U.S. 55 (1980). In addi- 
tion, the Fifth Circuit erred in ruling that the term “rep- 
resentatives” necessarily excludes elected judges. That 
term is best read to include all elected officeholders, 
  

10 We have provided a copy of our brief in Nos. 90-757 & 90-1032 

to counsel in this case.  



  

  

  

12 

whether in the legislative, executive, or judicial branch. 
For these reasons, the Section 2 results test applies to 
the election of state judges. 

B. The Election Of Texas District Judges Is Not Exempt 

From The Section 2 Results Test On The Ground That 

District Judges Occupy “Single Person Offices” 

In the Fifth Circuit, respondents argued that, even if 
Section 2 generally applies to judicial elections, district 
judges in Texas should be exempt from the Section 2 re- 
sults test. Each district judge acts independently of 

every other judge, respondents argued, unlike an appel- 

late judge, who is but one of several members of a col- 
legial decisionmaking body, like a state legislature or a 
city council. Texas district judges, according to respond- 
ents, occupy what has been termed a ‘single person” or 
“single member office,” to which a vote dilution claim is 
inapplicable. Several members of the court of appeals 
found that argument persuasive and would have reversed 
the district court’s judgment on that ground. See Pet. 
App. 90a-114a (Higginbotham, J., concurring in the 

judgment). That conclusion, we believe, is mistaken. 

The “single member office” exception is less an excep- 
tion to the Section 2 results test than it is a limitation 
on the ability of vote dilution theory to provide a useful 
means of analyzing and challenging the at-large election 
of offices that are held by only one person. Vote dilution 
theory has been used as a means of proving that an elec- 
toral scheme can dilute the collective voting strength of 
minority groups even though individual minority voters 
are free to cast ballots that are given the same weight as 
the ballots cast by the members of every other group in 
the community. As the Court explained in Thornburg Vv. 
Gingles, a successful challenge to an at-large system de- 
pends on proof that a politically cohesive minority group 
“is sufficiently large and geographically compact to con- 
stitute a majority in a single-member district.” 478 U.S. 
at 50. Otherwise, a minority group’s electoral failure 

   



  

13 

does not necessarily signify that minority votes have 
been effectively cancelled out. Gingles also made clear 
that minority voters cannot claim to have been injured 

by a particular electoral structure, procedure, or practice 
(such as the use of an at-large election) unless minority 

voters have the potential to elect representatives in the 

absence of the challenged voting device. For example, 
if a minority group has the ability to elect legislators 
from single-member districts, but has been unable to do 
so in an at-large system, the group can challenge the 
State’s use of an at-large system on the ground that it 
dilutes the votes of the minority group. A violation can 
be remedied by redrawing the geographic boundaries of 
the at-large system into single-member units. But if a 
minority group is dispersed throughout the districts, that 
group lacks the ability to elect representatives in a 
single-member system, and the at-large nature of the 
electoral system cannot be said to dilute minority votes. 
See id. at 50-51 & n.17. 

The vote dilution theory recognized in Thornburg Vv. 
Gingles cannot be applied to the at-large election of an 
office that is occupied by only one person to represent the 
entire district. In that event, a minority group, by defi- 
nition, is not “sufficiently large and geographically com- 
pact to constitute a majority in a single-member dis- 
trict.” 478 U.S. at 50. Under those conditions, it is not 
the at-large nature of a system that causes the dilution 
of minority votes, but the decision to elect only one per- 
son to the office involved and the impossibility of sub- 
dividing the one office into components. The vote dilution 
theory endorsed in Thornburg Vv. Gingles does not extend 
so far as to invalidate the use of such offices by requir- 
ing, for example, multiple governors or mayors. 

The decision in Butts v. City of New York, 779 F.2d 
141 (2d Cir. 1985), cert. denied, 478 U.S. 1021 (1986), 
illustrates the “single person office” concept. Butts in- 

volved a Fourteenth Amendment and Section 2 challenge 
to a New York law requiring run-off primary elections  



  

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14 

if no candidate received 40% of the vote for the posi- 
tions of mayor, city council president, and comptroller, 

each of which were held by only one person. The court 

held that the challenged law did not improperly dilute the 
votes of minorities because dilution principles governing 
election to multimember bodies, such as a city council, do 

not apply to single-member offices, like mayor, because 

“[t1here can be no equal opportunity for representation 

within an office fllled by one person.” 779 F.2d at 148. 
When elections are held for a mulitmember body, a 
minority group has the opportunity to secure “a share of 
representation” equal to other groups of citizens by elect- 
ing members from districts in which the minority is dom- 
inant. But because ‘there is no such thing as a ‘share’ 
of a single-member office,” the Second Circuit stated, vote 
dilution theory cannot be applied in the case of offices 
that govern the entire electorate and that are held by 
only one person. Ibid. See also United States v. Dallas 
County Comm., 350 F.2d 1430, 1432 n.1 (11th Cir. 1988) 
(relying on Butts Vv. New York to hold that the at-large 
election of a single probate judge is permissible). Cf. 
City of Port Arthur v. United States, 459 U.S. 159 
(1982) (striking down run-off requirement for seats on 
multimember city council without mentioning the run- 

off requirement for mayor). Compare Dillard v. Cren- 
shaw County, 8331 F.2d 246, 251-252 (11th Cir. 1987) 

(chair of county commission was not treated as a single- 
member office) ; Southern Christian Leadership Confer- 
ence V. Siegelman, 714 F. Supp. 511, 518-520 (M.D. Ala. 
1989) (single-member office principle is inapplicable to 
elected Alabama circuit and district judges). 

  

11 In Butts, the court of appeals held that a plurality vote runoff 

requirement for a single-person office was not subject to Section 2. 

779 F.2d at 151. In our view, the method of electing a single-mem- 

ber office is not immune from attack under Section 2; minority vot- 

ers should be able to challenge hurdles to success other than the at- 

large structure of an election.



  

15 

Of course, it is theoretically possible to eliminate a 
single member office by creating a new office that can 
be occupied by independent officeholders either simultane- 
ously or on a rotating basis. See Note, Applying Section 
2 of the Voting Rights Act to Single-Member Offices, 88 
Mich. L. Rev. 2199 (1990) (endorsing that proposal). 
The Voting Rights Act, however, does not reach that far. 
As Judge Higginbotham wrote, the Act does not require 
the States to restructure their elected positions, Pet. App. 
90a-91a; instead, it guarantees minorities the same “op- 
portunity” as other members of the electorate “to partici- 
pate in the political process and to elect representatives 
of their choice.” 42 U.S.C. 1973 (b). Section 2 expressly 
disavows any requirement of proportional representation 
for minority groups, and Congress made clear that the 
Act does not prohibit all use of at-large systems. See 
Senate Report 2, 16, 31-33, 68. See also Whitcomb V. 
Chavis, 403 U.S. 124 (1971) (upholding an at-large 
system over a racial note dilution claim) ; id. at 156-160 
(holding that multimember systems are not per se uncon- 
stitutional) ; White v. Regester, 412 U.S. 755, 765 (1973), 
and Zimmer V. McKeithen, 485 F.2d 1297, 1304 (5th 
Cir. 1973), aff’d on other grounds sub nom. East Carroll 
Parish School Bd. Vv. Marshall, 424 U.S. 636 (1976) (stat- 
ing that at-large systems are not per se unconstitutional), 

cited at Senate Report 33. Accordingly, the vote dilution 
theory of Thornburg v. Gingles does not invalidate single 
member offices. 

The single member office principle, however, only ap- 
plies to a narrow category of elected offices: ones for 
which the electoral district cannot be subdivided because 
only one official is elected from a geographic region. That 
principle, accordingly, does not apply in this case, given 
the structure of the Texas district court system. Each 
county elects between 3 and 59 district court judges; 
none elects only one. Nor does each district judge have 
unique responsibilities; all have the same authority and 
exercise the same responsibility. Some judges specialize  



    

  

  

16 

in eriminal, civil, or family law cases, but each district 
court within each county is interchangeable with every 
other office, and courts with the same specialization are 
entirely fungible. Under these circumstances, the Texas 
electoral system in each county can be subdivided into 
separate units without having to perform surgery on the 

functions performed by the office of district court judge. 
The single member office barrier to the application of the 
Section 2 vote dilution analysis does not exist in this case. 

Judge Higginbotham concluded that a function of the 
office of district judge is to represent the entire com- 
munity, and that creating subdivisions within counties 
would thus alter the nature and function of that office. 
Pet. App. 103a-112a. But if that analysis were correct, 
no at-large election to a multimember body could ever 
be successfully challenged under Section 2, because every 
State could maintain that it is the function of each office- 
holder to represent the entire community. That proposi- 
tion may be true, but it is also largely immaterial to the 
question of coverage. Rather, it is an interest to be con- 
sidered under the “totality of circumstances.” What is 
pertinent is whether the functions that an office is em- 
powered to carry out under state law are unique, not 
whether an officeholder can be said to represent a par- 
ticular geographic community when exercising the power 
of his office. The district courts in this case are not 
unique, and the single member office doctrine thus does 
not apply. 

Respondents also maintained below that district judges 
occupy single member offices because each judge is elected 
from a separate numbered district. Although it is true 

that district judges are technically elected to different 
judicial districts, each district in a county is identical 

to every other district. The designation of a judge as 
sitting for a particular numbered judicial district thus 
does not affect the nature of the position that judge holds, 
and therefore is of no consequence to the Section 2 analy- 

 



  

7 

sis. For example, by designating 59 judicial districts in 
Harris County, all of which cover the same geographic 

area, Texas has just identified different numbered posts 
for election purposes, thereby allowing candidates to run 
in head-to-head contests. That designation does not give 
rise to a “single person office” for purposes of Section 2 
because it does not affect the nature of the office itself. 

C. A State’s Strong, Nondiscriminatory Reasons For At- 

Large Judicial Elections Are Among The “Totality Of 

Circumstances” That Courts Must Consider In De- 

termining Whether There Has Been A Violation Of 
Section 2 

Texas maintains that the at-large election of district 
judges helps ensure that they are responsive to the com- 
munity while at the same time lessening the risk that 
they will be susceptible to undue influence by particular 
components of it. We disagree with respondents that this 
justification is sufficient automatically to exempt judges 
from Section 2, but we believe that such a justification 
is a legitimate one and must be considered by the courts 
among the ‘totality of circumstances” in applying Section 
2. 42 U.S.C. 1973 (b). In some instances, that interest 
can spell the difference between a lawful and unlawful 
electoral scheme. Since the distriet court did not apply 
the correct legal standard to the facts, the judgment 
should be vacated and the case remanded for further 
proceedings. 

1. A “strong state policy divorced from racial discrimi- 

nation” supporting at-large judicial elections is a 

“circumstance” for the courts to consider in deter- 

mining whether Section 2 has been violated 

Historically, electoral schemes were initially challenged 
on the ground that the malapportionment of representa- 

tives effectively diluted the votes of individual electors. 

Reynolds v. Sims, 377 U.S. 533 (1964). An at-large 
election can remedy that problem, but also can lead to a  



    
  

18 

different one, group vote dilution. Group vote dilution 
occurs when the practical operation of an electoral sys- 

tem effectively erases or minimizes the voting strength 
of a particular group, such as a racial minority. Fort- 
son V. Dorsey, 379 U.S. 433, 439 (1965). To prove that 
an at-large electoral system dilutes minority votes, a 

plaintiff must “produce evidence to support findings that 
the political processes leading to nomination and election 
were not equally open to participation by the group in 
question—that its members had less opportunity than did 
other residents in the district to participate in the politi- 
cal processes and to elect legislators of their choice.” 
White v. Regester, 412 U.S. at 766. See also Whitcomb 
v. Chavis, 403 U.S. at 149-153. 

In Zimmer Vv. McKeithen, the Fifth Circuit distilled 

from this Court’s decisions in Whitcomb and White a list 
of factors for the courts to use when analyzing a racial 
vote dilution claim. 485 F.2d at 1305. The later signifi- 
cance of the Fifth Circuit’s discussion merits lengthy 
quotation, bid. (footnotes omitted) : 

The Supreme Court has identified a panoply of 
factors, any number of which may contribute to the 
existence of dilution. Clearly, it is not enough to 
prove a mere disparity between the number of minor- 
ity residents and the number of minority repre- 
sentatives. Where it is apparent that a minority is 
afforded the opportunity to participate in the slating 
of candidates to represent its area, that the repre- 
sentatives slated and elected provide representation 
responsive to minority’s needs, and that the use of a 
multi-member districting scheme is rooted in a 
strong state policy divorced from the maintenance 
of racial discrimination, Whitcomb v. Chavis, supra, 
would require a holding of no dilution. Whitcomb 
would not be controlling, however, where the state 
policy favoring multi-member or at-large districting 

schemes is rooted in racial discrimination. Con- 
versely, where a minority can demonstrate a lack of 
access to the process of slating candidates, the un- 

 



  

19 

responsiveness of legislators to their particularized 
interests, a tenuous state policy underlying the pref- 
erence for multi-member or at-large districting, or 
that the existence of past discrimination in general 
precludes the effective participation in the election 
system, a strong case is made. Such proof is en- 
hanced by a showing of the existence of large dis- 
tricts, majority vote requirements, anti-single shot 
voting provisions and the lack of provision for at- 
large candidates running from particular geographi- 
cal subdistriets. 

The Fifth Circuit and other courts relied on what became 
known as the “Zimmer factors’ in the vast majority of 
subsequent cases. E.g., David Vv. Garrison, 553 F.2d 923, 
927 (5th Cir. 1977). The Senate Judiciary Committee 
Report accompanying the Voting Rights Act Amendments 
of 1982 noted that fact, Senate Report 23, and endorsed 
that approach to the resolution of Section 2 claims, Sen- 
ate Report 27-30. The Report also set out a list of “[t]yp- 
ical factors” that a plaintiff could invoke to prove racial 
vote dilution, id. at 28-29, that was “derived from the 
analytical framework used by th[is] Court in White, as 
articulated in Zimmer.” Id. at 28 n.113. See Thornburg 
Vv. Gingles, 478 U.S. at 44-45. 

One factor expressly mentioned in Zimmer was whether 
“the use of a multi-member districting scheme is rooted 
in a strong state policy divorced from the maintenance 
of racial discrimination.” 485 F.2d at 1305. The Fifth 
Circuit in Zimmer believed—correctly, in our view—that 
this Court had endorsed that factor in Whitcomb V. 
Chavis. 485 F.2d at 1305 (citing Whitcomb). The Fifth 

Circuit often reiterated that factor in later cases, al- 

though it did not rely on it to uphold an at-large electoral 
scheme.’ Nevertheless, for several reasons, we believe 
  

12 See Turner Vv. McKeithen, 490 F.2d 191, 194 (5th Cir. 1973) 

(“the strength of the state interest in multi-member or at-large 

voting”) ; Robinson V. Anderson County Comm'rs Court, 505 F.2d 

674, 680 (5th Cir. 1974) (considering and rejecting justification for 

apportionment; “the mere fact that an apportionment plan may  



    

20 

that strong state policies underlying the at-large election 
of judges are factors that the courts must consider in 

determining whether such a system violates Section 2. 
First, the text of Section 2 requires the courts to con- 

sider the “totality of circumstances” when analyzing a 
Section 2 claim. This Court has recognized that the 
State’s justification for its electoral system is a proper 
factor for the courts to assess in a racial vote dilution 
inquiry, see Whitcomb v. Chavis, 403 U.S. at 149, while 
the Fifth Circuit in Zimmer expressly approved the use 
of this particular factor in the balance of considerations. 
485 F.2d at 1305. The Senate Report on the 1982 Amend- 
ments favorably cited Whitcomb and Zimmer when dis- 
cussing how amended Section 2 would operate. See Sen- 
ate Report 24-33. 

Second, Section 2 applies to all state electoral mech- 
anisms, not simply the use of at-large elections. For in- 

stance, a state law requiring a person to be a member of 
the state bar for a set number of years before becoming 
a judge could conceivably be challenged on the ground 
that it dilutes the pool of candidates for the bench. For 
that matter, a rule that the candidate with the most votes 
wins could conceivably be challenged on the ground that it 
prevents minority groups from electing a representative 
to a single-member office, like governor. If so, it would be 
odd in the extreme for Congress to have prevented the 

satisfy some legitimate governmental goals does not automatically 

immunize it from constitutional attack on the ground that it has 

offended more fundamental criteria”); Bradas V. Rapides Parish 

Police Jury, 508 F.2d 1109, 1112 (5th Cir. 1975) (quoting Turner) ; 

David v. Garrison, 553 F.2d 923, 927, 930 (5th Cir. 1977) ; Parnell 

V. Rapides Parish School Bd., 563 F.2d 180, 184 (5th Cir. 1977) ; 

Bolden v. City of Mobile, 571 F.2d 238, 244 (5th Cir. 1978), rev'd, 466 

U.S. 55 (1980). Cf. Hendrix v. Joseph, 559 PF.24 1265, 1269 (5th 
Cir. 1977) ; McGill v. Gadsden County Comm'n, 535 F.2d 277, 280- 

281 (5th Cir. 1976) (plaintiff did not show that state policy was 

tenuous or discriminatory). Compare Moore V. Leflore County Bd. 

of Election Comm’rs, 502 F.2d 621, 624-625 (5th Cir. 1974) (in 

reviewing the remedy imposed by the district court, “[e]|qualization 

of land area and road mileage is extremely important here’). 

 



  

21 

courts from considering the legitimacy and weight of the 
State’s interest in such rules, focusing instead solely on 
their dilutive effect. What is more, focusing exclusively 
on the dilutive effects of a state electoral practice while 
not giving any weight to the State’s interests could well 

lead to requiring proportional representation, which the 

Act expressly states is not required. Congress hardly in- 
tended that the operation of Section 2 would result in an 

outcome that its text expressly disavows. 

At the same time, we do not mean to suggest that 
proof of a strong state interest automatically trumps 
proof of racial vote dilution. Section 2 is a broadly based 
prohibition on electoral practices that, intentionally or 

not, deny minority voters equal access to the electoral 
process. As a footnote in the Senate Report explains, 
“even a consistently applied practice premised on a ra- 
cially neutral policy would not negate a plaintiff’s show- 
ing through other factors [derived from Zimmer v. Mec- 
Keithen, supra] that the challenged practice denies 
minorities fair access to the process.” Senate Report 29 
n.117. See Bolden Vv. City of Mobile, 571 F.2d 238, 244 

(6th Cir. 1978) (“[c]ity-wide representation is a legiti- 
mate interest, and at-large districting is ordinarily an 

acceptable means of preserving that interest [but] the 
district court was warranted in finding that the city’s 

interests in its at-large plan did not outweigh the strong 

showings by the appellees under the other Zimmer cri- 

teria’), rev'd, 446 U.S, 55 (1930). 
The often dilutive effect of at-large elections on minor- 

ity voting strength was of considerable importance to 
Congress in 1982. Congress knew that many localities 
had enacted at-large systems for legitimate governmental 
reasons, and no one disputed that there was legitimate 
governmental support for at-large elections. “The reason 

usually given in support of at-large elections for munici- 

pal offices is that at-large representatives will be free 
from possible ward parochialism and will keep the in- 

  

 



  

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22 

terests of the entire city in mind as they discharge their 
duties.” Wallace v. House, 515 F.2d 619, 633 (5th Cir. 

1975), vacated on other grounds, 425 U.S. 947 (1976). 

See also McMillan v. Escambia County, 638 F.2d 1239, 

1244 (5th Cir. 1981) (describing “good government” 
basis for at-large elections). Congress explicitly relied on 
a list of 23 lower court decisions that applied dilution 
principles. Senate Report 32. In several of those cases, 
where defendants had alleged race-neutral grounds for 
at-large elections, the courts held that the elections were 
unlawfully dilutive and required the adoption of a single- 
member districting system for future elections to ensure 
that the State’s electoral methods did not dilute minority 

voting.!3 
Analysis should also be informed, however, by the fact 

that the role of judges differs from those of legislative 
and executive officials. In balancing the strength of race- 

neutral state policies against evidence of vote dilution 
under the “totality of circumstances,” it is obviously per- 
tinent to consider the nature of the office at issue. The 
most obvious difference is that while legislators, and, per- 
haps, to a lesser extent, executive officials are expected 
to advance and protect the interests of their constituents, 
and are elected to do just that, judges are expected to be 
fair and impartial. Thus, “responsiveness” to minority 

voters is not a relevant concern in evaluating judicial 
elections. 

The important state interest in ensuring a fair and 
impartial judiciary must also be carefully considered in 
evaluating a State’s decision to elect judges at-large. 

The State may believe that judges should be discouraged 
from thinking of themselves as representing only a por- 

  

13 Zimmer V. McKeithen, 485 F.2d at 1807; Hendrix Vv. Joseph, 559 

F.2d 1265 (5th Cir. 1977) ; Kendrick v. Walder, 527 F.2d 44 (7th 
Cir. 1975). See also Wallace Vv. House, 515 F.2d at 632-633; Bolden 

v. City of Mobile, 571 F.2d at 244. 

 



  

23 

tion of a particular jurisdiction.!* In addition, a State 
may determine that small electoral districts must be 

avoided in order to prevent a relatively discrete segment 
of the jurisdiction from controlling the election of trial 
judges. A State may determine that fairness, im- 

partiality, and public confidence are significantly aided 
where all the people who may generally appear before a 
particular judge have a voice in the election of that 
judge.’ Finally, to the extent that there are legitimate 
and strong state interests in the at-large election of trial 
or appellate judges, that is powerful evidence that minor- 
ity electoral failure is not the product of a “built-in bias” 
against minorities but stems, instead, from other, neutral 

factors. Whitcomb v. Chowvis, 403 U.S. at 153. Con- 
sidering the State’s interests—which may be different 
in both nature and magnitude for the at-large election 
of judges than for the at-large election of legislators— 
is therefore consistent with the principle in the case law 
and legislative history that “ ‘the question whether the 
political processes are ‘equally open’ depends upon a 
searching practical evaluation of the ‘past and present 
reality’ and on a ‘functional’ view of the political proc- 

ess.” Thornburg Vv. Gingles, 478 US. at 45 (quoting 
Senate Report 30 & n.120). See White Vv. Regester, 412 
U.S. at 766-767; Whitcomb Vv. Chavis, 403 U.S. at 149- 
155. 

Section 2 is broad in its reach, but there is no reason 

to believe that, in passing the amendment in 1982, Con- 

14 Of course, where the plaintiff can prove that the adoption or 

maintenance of an at-large system, whenever it occurred, was moti- 

vated by racial discrimination, the State’s interests are not entitled 

to deference. 

15 A State may conclude that its court of last resort is the au- 

thoritative source of state law, including the state constitution, and 

that all of the people in the State should have a vote for each member 

of the court entrusted with that responsibility. Once a State, as here, 

decides to elect judges from areas smaller than the entire State, 

closer scrutiny is appropriate, as the State has already determined 

to make the judge accountable to only part of the State’s electorate. 

  

 



  

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24 

gress sought to alter the fundamental nature of judicial 
offices established by the State or require a method of 
election that irreconcilably conflicts with those offices. 
After all, Section 2 is addressed to voting practices, not 
to the definition of state offices. Thus, if Texas consis- 
tently 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.” Such an interest should be considered 
along with other factors in the totality of circumstances. 

2. The district court did not consider whether the 

State has a strong, nondiscriminatory policy sup- 

porting the use of at-large judicial elections 

Judge Higginbotham concluded that Texas has tied to- 

gether a district court’s electoral and jurisdictional base 
as a means of protecting each judge’s independence with- 
out compromising the fact and appearance of impartial- 
ity. The independent decisionmaking authority of each 
trial judge is “a structure we must accept,” Pet. App. 
104a, Judge Higginbotham concluded, and a federal court 
cannot create or direct the State to create single-member 
districts for judicial elections because doing so would 
interfere with the State’s achievement of those critical 
governmental interests. Id. at 108a-112a. We believe 
that Judge Higginbotham’s conclusions are at least pre- 
mature, as the facts necessary to a proper assessment of 
the way in which Texas uses at-large elections to advance 
governmental interests, and the strength of those inter- 

ests, have been neither fully developed nor analyzed. It 
is not. clear that Texas has met the standard in this case 
of demonstrating that at-large elections of trial judges 
serve a strong state policy. Nor has the state policy been 
weighed against the evidence of vote dilution in this case. 
The case therefore should be remanded so the district 
court can carry out the appropriate analysis. 

a. A representative yet impartial judiciary. The 
State’s principal justification for holding at-large judicial 

 



  

25 

elections is that using subdistricts could lead to the fact 
and perception of judicial bias and undue influence by 

special interest groups. This rationale has been used to 
defend at-large elections for legislative and executive 
offices, see City of Mobile v. Bolden, 446 U.S. at 70 n.15 
(plurality opinion); Zimmer v. McKeithen, 485 F.2d at 
1301; cf. The Federalist No. 10, at 82-84 (J. Madison) 

(C. Rossiter ed. 1961), *® but assumes heightened impor- 

tance in judicial elections, for all the reasons the judi- 
ciary is different from the other branches. Several wit- 
nesses testified that at-large election of judges was 
necessary for this reason,’” and this factor may be one of 
the “totality of circumstances” showing that minority 
electoral failure cannot be attributed to a state system 

that improperly dilutes minority votes. 

16 See also Dallas County Vv. Reese, 421 U.S. 477, 479-480 (1975) ; 

Chapman Vv. Meter, 420 U.S. 1, 20 n.14 (1975) ; Dusch V. Davis, 387 
U.S. 112 (1967) ; Fortson V. Dorsey, 379 U.S. at 438 (all concluding 

that multimember districts can be justified on the ground that an 

officeholder represents the entire geographic region, not simply one 

district). 

17 For example, District Judge Mark Davidson testified that hold- 

ing elections for judges from districts that are smaller than the 

existing county-wide districts would mean that ‘the political pres- 

sures, at least on judges from Harris County, would increase sub- 

stantially,” 3 Tr. 264, and “forum shopping * * * would increase dra- 

matically,” as parties sought to “find an attorney * * * with some 

political pressure, for example, over the Judge of the Court whose 

case you fell in,” 3 Tr. 265. Professor Anthony Champagne opposed 

creating subdistricts because “[t]heoretically the larger the popula- 

tion you serve the more insulated a Judge would be from special in- 

terest group pressure.” 4 Tr. 146. District Judge Carolyn Wright 

expressed the same opinion. 4 Tr. 191. District Judge Harold Entz 

testified that using smaller electoral districts could give rise to a 

public perception that some judges would be elected, and some liti- 

gants would be successful, simply because of their race. 4 Tr. 82, 

88-90. He also expressed concern that smaller judicial districts 

could help enable large-scale drug traffickers to influence the outcome 

of elections. 4 Tr. 83-84, 

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There is, however, evidence tending to disprove the 
claim that at-large county-wide elections are essential to 
ensure a representative and impartial bench. The Texas 
Constitution does not require county-wide election of the 
district judges; it permits the voters to select them 
from sub-county districts. Tex. Const. Art. 5, § 7Ta(i). 
Justices-of-the-peace are elected from precincts smaller 
than a county, and some election districts of a similar 

size could be created here.'®* There also was testimony 

that justices-of-the-peace, who are elected from such 
precincts, had no difficulties with bias or allegations 

of bias. 4 Tr. 90. Electoral districts that are smaller 
than a county can still be quite large. Harris County, 

for example, has a population of nearly 2.5 million and 
59 district judges. Even were Harris County to be di- 
vided into 59 subdistricts (a remedy that we do not con- 
tend is required), each district would contain approxi- 
mately 41,000 people.’ Moreover, were a remedy neces- 

sary, the use of several multimember districts in large 
counties might be far preferable to the use of single- 
member districts. Finally, the potential for the fact or 

appearance of bias is present whenever judges are 
elected, while the interest in making judges accountable 
to minority voters can perhaps be served only by elim- 
inating an at-large system. 

18 County population ranges from 82,000 (Midland County) to 2.4 

million (Harris County). Under the Texas Constitution, counties 

with a population of 30,000 have 4-8 justices-of-the-peace subdis- 

tircts, while counties with a population of 18,000 can have 2-5 such 

precincts. Tex. Const. Art. 5, § 18(a). 

19 Dallas County, with a population of 1.5 million people, has 37 

judges. Were it divided into 37 subdistricts, each one would contain 

about 42,000 people. There are currently judges elected county-wide 

from counties with populations of similar size. By our count, 114 of 

Texas’s 362 district courts are elected from areas of less than 

100,000 people, and 61 of those are elected from areas of 50,000 or 

less. (County populations were determined by reference to United 

States Department of Commerce, 1980 Census of Population—Texas 
(1982).) 

   



  

27 

b. Electoral accountability. A related justification for 
holding countywide at-large elections is that it helps to 

ensure that judges are accountable to the persons over 
whom they exercise jurisdiction.” That rationale is a 
legitimate one, but its force is weakened by the fact that 

Texas law does not treat all judges alike.?’ Justices-of- 
the-peace, which are trial courts below the level of district 
courts, are elected from sub-county precincts even though 
these officers exercise jurisdiction over an entire county. 
District courts also can exercise jurisdiction over cases 
arising beyond the county boundaries since the parties can 
agree to permit a court to adjudicate a case that does not 
arise within the county. Page 3 & note 3, supra. Fur- 

thermore, district court judges often hear cases in other 
counties to help manage the docket, 5 Tr. 120, and the 

residents of a county in which a district judge tempo- 
rarily sits have no recourse against him at the polls. 
This disuniformity may signify that the accountability 
rationale is less weighty in practice than might otherwise 
be the case. 

c. Specialized courts. District Judge Davidson testified 
that applying the results test of Section 2 could disrupt 

20 For instance, Texas Supreme Court Chief Justice Thomas Phil- 

lips, testifying for the State, said that at-large elections assured 

that judges “ought to be accountable to those people who can be 

hailed into their Court,” 5 Tr. 120, and trial judges therefore ought 

to be elected from the same area over which the court has judisdic- 

tion. 

21 Witnesses also testified that votes for judges were cast based on 

factors such as party affiliation, name recognition, or other consider- 

ations unrelated to judicial performance. 3 Tr. 270; 4 Tr. 120; 5 Tr. 

129. Although that fact would tend to undercut the State’s asserted 

interest in accountability, because the same criticism can be lodged 

agains any electoral scheme, it is not clear that this criticism has 

any weight here. 

22 Justices-of-the-peace can try cases that arise in other precincts. 

Bradley Vv. Swearingen, 525 S.W.2d 280, 282 (Tex. Civ. App. 1975). 

See also Zulauf v. State, 591 S.W.2d 869, 872 & n.5 (Tex. Crim. App. 

1979). 

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the use of specialized courts. Because the counties that 
use specialized courts generally have many of each type 
of court, pages 4-5 note 5, supra, the State could retain 
the use of specialty courts in large counties and still 
remedy dilution, were any such remedy necessary, by, for 

example, dividing the specialty courts among districts 
and having each district elect each type of judge. 

d. Administrative benefits. Several witnesses testified 
that county-wide elections have administrative advan- 

tages that would be lost if smaller electoral districts were 

used, such as county-wide records retention, random as- 

signment of cases to judges within the county (which 
aids docket control), and county-wide jury selection. 3 

Tr. 257, 264; 4 Tr. 257, 261. Such benefits may well be 
valuable, but by themselves are insufficient to justify a 
racially dilutive electoral process. See Westwego Citizens 
for Better Gov't v. Westwego, 872 F.2d 1201, 1211 (5th 
Cir. 1989). 

e. Other aspects of at-large judicial elections. It may 
be possible to modify other aspects of the electoral appa- 

ratus in a fashion that ameliorates the dilutive effect of 
an at-large system. For instance, judges are elected in 

head-to-head contests. That factor, which the legislative 

history of Section 2 identified as a common method of 

diluting minority voting strength, Senate Report 29, 
could be modified without also eliminating at-large elec- 

tions. 
In sum, the careful assessment of the strength of the 

State’s interests in the present method of election has not 

been properly performed, nor have those interests been 

balanced against the showing of vote dilution. The case 

should be remanded for that purpose. 

 



  

29 

CONCLUSION 

The judgment of the court of appeals should be re- 
versed and the case remanded for further proceedings. 

Respectfully submitted. 

KENNETH W. STARR 

Solicitor General 

JOHN R. DUNNE 

Assistant Attorney General 

JOHN G. ROBERTS, JR. 

Deputy Solicitor General 

ROGER CLEGG 

Deputy Assistant Attorney General 

PAUL J. LARKIN, JR. 

Assistant to the Solicitor General 

JESSICA DUNSAY SILVER 

MARK L. GROSS 

Attorneys 

MARCH 1991 

  
 



  
 



  

APPENDIX 

STATUTE INVOLVED 

Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 
1973, provides: 

(a) No voting qualification or prerequisite to vot- 
ing or standard, practice, or procedure shall be im- 
posed or applied by any State or political subdivision 
in a manner which results in a denial or abridge- 

ment of the right of any citizen of the United States 
to vote on account of race or color, or in contraven- 

tion of the guarantee set forth in section 1973Db 
(f) (2) of this title, as provided in subsection (b) of 
this section. 

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

(1a)  



 
 

  
        

 
 

    

20413 282061 ts U. S. GOVERNMENT PRINTING OFFICE; 1991