Brief of Dallas County Plaintiffs/Appellees Jesse Oliver Joan Winn White and Fred Tinsley

    NO. 00-8014 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 

(LULAC), ET AL., 

A AMMADRNEVYV “TONED 7 "EB OMUOD QOMAME AR MEY AC nls LE 
10 A Hb 1 ORNEY GENERAL Ol i HE No) 1A Ig OF 1 AAS EF 1 AL 0 4 4 

- 

Defendants-Appellants. 

On Remand From the United States Supreme Court 

BRIEF OF DALLAS COUNTY PLAINTIFFS/APPELLEES 
JESSE OLIVER, JOAN WINN WHITE AND FRED TINSLEY 

- £4 Respectrully submitted, 

EDWARD B. CLOUTMAN, II] 
Fi po 7 XC 0% A 
(Bar NO. 044 110 00) 

Attorney at Law 

3301 Elm Street 
Dallas 

p, 

) 

777 South R.L. Thornton Frw Ve 

Suite 121 

Dallas, Texas 715203 
f° A 2"Q._A" ) 
(214) 428-3793 

: ~ 7 AT CY TO AD NATTAC “OYTTIANTITY 
JUNSEL I OR DALI JOA COUNT hi 

3 

    OLIVER, JOAN WINN 

FRED TINSLEY  



    
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

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

" Plaintiffs-Appellees, 

: Vv. 

THE ATTORNEY GENERAL OF THE STATE OF TEXAS, ET AL., 

Defendants-Appellants. 

  

On Remand From the United States Supreme Court 

  

BRIEF OF DALLAS COUNTY PLAINTIFFS/APPELLANTS 

JESSE OLIVER, JOAN WINN WHITE AND FRED TINSLEY 

  

Respectfully submitted, 

EDWARD B. CLOUTMAN, III 
(Bar No. 044 110 00) 
Attorney at Law 
3301 Elm Street 
Dallas, Texas 75226-1637 
(214) 939-9222 
(214) 939-9229 (Telecopier) 

E. BRICE CUNNINGHAM 
(Bar ‘No. 052 350 00) 
Attorney at Law 
777 South R.L. Thornton Frwy. 
Suite 121 
Dallas, Texas 75203 
(214) 428-3793 

COUNSEL FOR DALLAS COUNTY 
PLAINTIFFS /APPELLANTS JESSE 
OLIVER, JOAN WINN WHITE AND 
FRED TINSLEY 

 



    
CERTIFICATE OF INTERESTED PARTIES 
  

The undersigned counsel of record certifies that the 

following listed persons have an interest in the outcome of this 

case. These representations are made in order that the Judges 

of this Court may evaluate possible disqualification or recusal. 

Name 
  

The League of United Latin 
American Citizens, Council 
#4434 

The League of United Latin 
American Citizens, Council 
#4451 

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

Christina Moreno 

Aguilla Watson 

James Fuller 

Roland L. Rios 

William L. Garrett 

Brenda Hull Thompson 

Garrett, Thompson & Chang, 
P.C. 

The Houston Lawyers’ 
Association 

Sherrilyn Ifill 

Matthews & Branscomb 

Jesse Oliver 

Joan Winn White 

Interest 
  

Plaintiff-Appellees 

Plaintiff-Appellees 

Plaintiff-Appellees 

Plaintiff-Appellee 

Plaintiff-Appellee 

Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Counsel for Plaintiff-Appellee 

Plaintiff /Intervenor-Appellee 

Plaintiff /Intervenor-Appellee 

 



    
Name 

Fred Tinsley 

Edward B. Cloutman, III 

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

E. Brice Cunningham 

James Greenleaf Boyle 

Jim Mattox 

Dan Morales 

George Bayoud 

Thomas R. Phillips 

Michael J. McCormick 

Ron Chapman 

Thomas J. Stovall, Jr. 

James F. Clawson, Jr. 

Joe E. Kelly 

Robert M. Blackman 

Sam M. Paxson 

Weldon Kirk 

Jeff Walker 

Ray D. Anderson 

Joe Spurlock, II 

Renea Hicks 

Javier Guajardo 

Interest   

Plaintiff/Intervenor-Appellee 

Counsel for Plaintiff/Intervenor- 
Appellee 

Counsel for Plaintiff/Intervenor- 
Appellee 

Counsel for Plaintiff /Intervenor- 
Appellee 

Counsel for Plaintiff/Intervenor- 
Appellee 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Counsel for Defendant-Appellants 

Counsel for Defendant-Appellants 

ii 

 



    
Name   

Leonard Davis 

Sharolyn Wood 

Darrell Frank Smith 

Porter & Clements 

PF. Harold Entz 

Robert H. Mow, Jr. 

David Cc. Godbey 

Hughes & Luce 

Tom Rickhoff 

Susan D. Reed 

John J. Specia, Jr. 

Sid L. Harle 

Sharon MacRae 

Michael P. Pedan 

Seagal V. Wheatley 

Donald R. Philbin, Jr. 

Oppenheimer, Rosenberg, 
Kelleher & Wheatley, Inc. 

Kaufman, Becker, Pullen 
& Reibach, Inc. 

Goldstein, Goldstein 
& Hilley 

Interest 
  

Defendant-Appellant 

Defendant-Appellant 

Counsel for Defendant-Appellant 

Counsel for Defendant-Appellant 

Defendant-Appellant 

Counsel for Defendant-Appellant 

Counsel for Defendant-Appellant 

Counsel for Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

Counsel for Defendant-Appellant 

Counsel 

Counsel 

Counsel 

Counsel 

Defendant-Appellant 

Defendant-Appellant 

Defendant-Appellant 

r Defendant-Appellant 

bill, 
  

Edward B. Cloutman, 

fii 

 



STATEMENT REGARDING ORAL ARGUMENT 
  

This Court by letter dated August 6, 1991 has set this 

matter for oral argument on November 4, 1991 at 2:30 p.m. in New 

Orleans. 

 



    

TABLE OF CONTENTS 
  

CERTIFICATE OF INTERESTED PERSONS + + ¢ . s so .o 

STATEMENT REGARDING ORAL ARGUMENT . . . «. . . . 

TABLE OF. CONTENTS  . . 

TABLE OF AUTHORITIES . 

STATEMENT OF JURISDICTION 

ISSUES PRESENTED FOR REVIEW 

STATEMENT OF THE CASE 

LJ 

A. Course of Proceedings and Disposition 
in the Court Below 

B. Statement of Facts 

SUMMARY OF THE ARGUMENT 

ARGUMENT 

Question No. 1. 

Question No. 2. . 

Question No. 3. . 

Question No. 4. . 

Question No. 5. . 

Question No. 6. . 

CERTIFICATE OF SERVICE +. 21-23 

 



    
TABLE OF AUTHORITIES 

CASES: 

Batson v. Kentucky, 476 U.S. 79 (1986) at 96-7   

Edgewood v. Kirby, 250th Judicial District 
Court of Travis County, Cause No. 362,516 
  

Houston Lawyers’ Association v. Attorney 
General of Texas, 115 L.Ed.2d 379 

(1991) [J [J L LJ LJ [ LJ [J [ [ [J » 

  

  

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)   

Pullman - Standard v. Swint, 
456. 0.8, 273 (1982). i. . J oi. i0n 
  

Tashjian v. Republican Party of Connecticut, 
479 U.S. 208 (1986) at 220) ow im et Hew 
  

Texas Department of Community Affairs v. Burdine, 
  

450 U.S. 248, (1981) ef oe Se aine 

Thornburgh v. Gingles, 478 U.S. 30 (1986) ott   

Ward’s Cove v. Atonio, 490 U.S. 642 (1989)   

Williams v. City of Dallas, 734 F.Supp. 1317, 
1387-97 (N.D. Tex. 1990) ode ‘viele 

  

STATUTES: 

Voting Rights Act, 42 U.S.C. 
Section 19730 J. ot nw vivian oie 

Texas Constitution, Article 5, 

Section Z(aY 3) + oc oie Sei visi 

MISCELLANEOUS: 

Rule 52(a), F.R.C.P. LJ Ld LJ LJ Ld LJ » LJ LJ LJ 

vi 

Page(s) 

vo. 17 

. 13 

8,215, 17 

LJ * 16 

11, 12 

. 17 

10, 15, 16 

15-17, 19 

. 16 

‘ 18 

10,:125, 16 

. 13 

9,11 

 



   

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

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

Plaintiffs-Appellees, 

Ve 

THE ATTORNEY GENERAL OF THE STATE OF TEXAS, ET AL., 

Defendants-Appellants. 

  

On Remand From the United States Supreme Court 

  

BRIEF OF DALLAS COUNTY PLAINTIFFS/APPELLEES 

JESSE OLIVER, JOAN WINN WHITE AND FRED TINSLEY 

  

  

Appellees Jesse Oliver, Joan Winn White and Fred Tinsley in 

response to the Court’s letter of August 6, 1991 offer this 

supplemental brief. 

STATEMENT OF JURISDICTION 
  

This Court has jurisdiction of this matter under the terms 

of the Supreme Court’s remand in Houston Lawyers’ Association v. 
  

  

Attorney General of Texas, 115 L.Ed.2d4 379 (1991) ("HLA"). 

ISSUES PRESENTED FOR REVIEW 
  

Whether this case should be remanded to the district court 

for entry of orders on liability and remedy not inconsistent 

with the opinion in Houston Lawyers’ Association v. Attorney 
  

 



   

  

General of Tevas, 115 L.Ed.24 379 (1991). 

STATEMENT OF THE CASE 
  

A. Course of Proceedings 
and Disposition in the Court Below 

The course of proceedings is set out in this Court’s 

previous. two opinions and by the Supreme Court in HLA. 

B. Statement of Facts 

There are thirty-seven’ (27) district judgeships of equal 

power and responsibility in Dallas County, Texas. Judges are 

selected to specifically numbered district court seats and they 

all run at-large and in groups numbering as large as thirty-two 

(32) (1990) on the same ballot in Dallas, county-wide. 

There no evidence in the record to suggest that any 

interest group in a county such as Dallas can exercise undue 

influence over any particular judge, nor that any or all judges 

will have a county-wide perspective to match their county-wide 

jurisdiction. 

There is no dispute that Dallas is a predominantly 

Republican county. The Republican vote in Dallas County is not 

color-blind. White voters tend to vote seventy percent (70%) or 

better for Republican candidates but only twenty-eight percent 

(28%) do so by straight ticket voting (TR. 5: 281; DI-Dallas X. 

16)". The Republican party in Dallas has shown considerable 

  

y All references to the transcript of proceedings will be 
denoted by "TR." followed by the appropriate volume and 

(continued...) 

 



   

indifference to outright hostility to black voters in Dallas 

(TR.  4:225-227, 229-234). Republican candidates have also 

demonstrated these qualities (Finding of Fact Nos. 29 and 30; 

R.E: 72). 

What is painfully clear in Dallas is that no black 

candidate for district judgeship has ever been elected to that 

seat with the support of the black community. One hundred 

percent (100%) (5 in all) of the black candidates for district 

judge seats who did enjoy the overwhelming support of the black 

vote have been defeated. (PI-Dallas X. 16; TR. 2:131-33; PX D- 

2). 

Partisan voting in Dallas County constitutes neither an 

excuse for non-compliance with the Voting Rights Act nor an 

explanation for the totality of circumstances as found, by the 

district court to support Oliver’s claims. Rather, race is the 

predominant factor in terms of voter preference and candidate 

selection for the seat of district judgeship in Dallas. The 

following analysis by Oliver exemplifies the state of the record 

before the district court. 

Dallas County has more population than fifteen (15) states 

  

Y(...continued) 
page number (TR. Vol:page). References to exhibits will be 
denoted as follows: "PX" - plaintiffs’ exhibits; "pI- 
Dallas" - Oliver exhibits; "DI-Dallas" - Entz exhibits; and 
"DX" - state defendants. References to the record excerpts 
will be denoted by "R.E.". 

 



of the United States indicating that the thirty-seven (37) 

judicial district seats in Dallas County have a constituency 

greater in number than thirty (30) senators in the United States 

Senate (PI-Dallas X. 4). The African American or black 

population of Dallas County is overwhelmingly concentrated with 

some thirty-six (36) contiguous voting precincts ninety percent 

(90%) or greater black in population, and in an additional 

twenty-nine (29) surrounding precincts which are fifty to ninety 

percent (50% to 90%) black (PI-Dallas X. 7; See also Finding of 

Pact No. 6, RE. 15-16). 

The defendants (at least the state defendants and Entz) 

concede that black voters are politically cohesive in Dallas 

County. Of course, this is overwhelmingly supported by the 

evidence offered by plaintiffs and Oliver and is correctly found 

by the district court in Findings of Fact No. 17(a) through (h) 

and 17(3j) through (1) (R.E. 32-37). 

Similarly, this same evidence established a strong and 

distinct difference between the way black and white voters cast 

their ballots in Dallas County. Racial bloc voting or racially 

polarized voting was demonstrated by this distinction. 

The evidence convincingly demonstrated that white bloc 

voting exists in Dallas County and that such is sufficiently 

strong to generally defeat the choice of the black community. 

See the district court’s Findings of Fact 17(m) through (n) 

(R.E. 37-38). See also, Finding of Fact 17(p) for defendant’s  



    
expert analysis (R.E. 39). 

The state defendants and Entz have asserted that partisan 

voting explains the vote difference between black and white 

voters in Dallas County. As will be argued infra, such 

explanation is not contemplated as a defense under the Voting 

Rights Act and its amended Section 2, and therefore is largely 

irrelevant. Oliver’s expert witness at trial, Dr. Dan Weiser, 

testified at some length that non-partisan races analyzed in 

terms of black/white vote patterns revealed similarly strong 

divisions between white and black voters and their preferences 

at the ballot box (TR. 3:19 - 3:26; PI-Dallas X. 25). 

The history of official discrimination in Dallas County 

which is shameful at best and certainly lengthy. The district 

court took notice such in part at Findings of Fact 25 and 26 

(R.E. 69-70). 

There is no requirement under Section 2 that the lingering 

effects of past discrimination must have a causal relationship 

with the casting of an effective ballot. The evidence is clear, 

as pointed out in the brief for plaintiffs, that in Dallas 

County, black citizens are well behind their white peers in 

terms of the level of employment, annual income, educational 

level. 

Racial appeals in Dallas County occurred in recent years. 

The district court correctly found that racial appeals were 

inserted by the Republican candidate in the 1986 election for 

 



    
district attorney and in the 1988 judicial election in the 

Republican primary between the black incumbent candidate and his   

anglo challenger. These racial appeals are analyzed at Finding 

of Pact 30 (R.E. 73, TR. 4:92-93). 

With respect to electoral success of black candidates, 

seven (7) black candidates have opposed anglos in district court 

general elections in Dallas County. They have won two (2) of 

those seven (7) elections. Neither successful candidate was the 

choice of the black electorate. Indeed, each of the successful 

candidates received less than one percent (1%) of the black vote 

(PX D-2; Finding of Fact 31, R.E. 73-74). 

Some evidence was offered by defendants as to the pool of 

qualified attorneys from which district judges may be selected. 

Defendants would have this Court adopt a standard that has its 

foundation on past discrimination. They suggest to the Court 

that since the pool of black attorneys is disproportionately 

small when compared to the general population, despite being the 

result of historical discrimination, it is the correct standard 

by which to measure electoral success. This standard, however, 

is not the "pool" in reality, for that reservoir is found in the 

number of well-qualified black attorneys who file for office 

(and who run unsuccessfully). Defendant Entz’s expert witness, 

Dr. Anthony Champagne, admitted that the pool of lawyers has 

little or no relationship to the rate of success for black 

candidates to actually file and run for office (TR. 4:162-63). 

 



    
Neither the state defendants nor Entz make any contention 

that black judicial candidates Oliver, J. White, Tinsley nor 

witness, H. Ron White, were not well qualified to serve on the 

state district bench. To the contrary, in the five (5) judicial 

races run by intervenors White, Tinsley and Oliver together with 

that H. Ron White, each was the recipient of major endorsements 

by legal groups and newspapers; each ran a well financed 

campaign; all sought to campaign on a county-wide basis for the 

seat of district judge. 

Each of these black candidates enjoyed the overwhelming 

support of the black community and despite that support, these 

five (5) candidates lost to the bloc of white vote cast against 

them (TR. 2:163-171; 2:194-204; 2:235-240; and 2:242-248). 

These unsuccessful black candidates for the state district 

bench expressed the view that they did not believe a change in 

partisan affiliation would have improved their plight with the 

white voters (TR. 2:188-189; 2:204-206; 2:214-215). 

These unsuccessful candidates also testified as to why they 

should not run in Dallas County on the Republican ticket. Each 

expressed a philosophical difference with the Republican party’s 

views toward black citizens, as well as its repugnance to their 

own viewpoints and that of their black constituency. They 

expressed the view that to run as a Republican in Dallas County 

would be to abandon their philosophical beliefs and to abandon 

their black constitutency (TR. 2:172-174; 2:205-206; 2:240-241; 

 



    
2:248-249). Party affiliation clearly signals the views of 

candidates and aids black voter choice. 

This testimony is underscored by the simple and historical 

fact that black voters have not and do not participate in the 

Republican party primaries and do not exercise their franchise 

in that process (TR. 3:15-17; PI-Dallas X. 13,.14 and 15). This 

is consistent with the testimony of Republican Chair Tom James 

cited above. 

As if to underscore plaintiffs’ contention that voting is 

racially polarized in Dallas County, a witness called by Entz at 

trial, Judge Carolyn Wright, stressed that she believed that a 

black judge would have a very difficult time running and winning 

in a majority anglo area in a smaller-than-county district (TR. 

4:205; 4:207-208). 

SUMMARY OF ARGUMENT 
  

Plaintiffs/intervenors (Dallas County) urge this Court to 

affirm the liability finding of the district court and remand 

this litigation to the district court for remedy considerations 

consistent with the opinion and mandate of the Supreme Court in 

Houston Lawyers’ Assocation v. Attorney General of Texas 
  

("HLA"), 501 U.S. & 115 L.Pd.24 379, 388 (1991). 

The issue of state’s interest, whatever it may be, is a 

fact-bound issue and, as held by the Supreme Court in HLA, is 

merely one factor to be considered in the totality of the 

circumstances determination. This is a factual resolution 

 



    

exclusively within the province of the district court, review- 

able only under the clearly erroneous standard of Rule 52(a), 

P.R.C.P. 

The district court found that the state’s interests as 

advanced at trial were not compelling. It found that these 

interests did not outweigh the finding of vote dilution created 

by at-large voting. This Court is required to extend deference 

to such a fact finding under the clearly erroneous review 

standard. 

The state’s interests in the evidentiary record before this 

Court are that (a) it seeks to prevent undue influence upon 

judges created by smaller-than-county election districts; (Db) 

it desires to avoid increased administrative expense allegedly 

caused by voting changes; and (c) that in some counties, 

specialized court judges would not be voted on by all the 

county’s electors. The district court was unpersuaded by the 

evidence offered in support of these interests. This district 

court determination like a credibility resolution is entitled to 

great deference by this Court. 

The state’s interest in linking the geographical area from 

which a judge is elected to that court’s jurisdiction is at best 

tangential and vague. A district court in Texas exercises 

state-wide jurisdiction, whether the judge is elected from a 

smaller-than-county sized district, a single county district or 

a multi-county district. The Texas Constitution contemplates 

 



    
all three of these election district variants. 

The state’s interest here is merely one factor to be 

considered in the totality of the circumstances. The ultimate 

burden of persuasion regarding a violation of Section 2 is on 

the plaintiffs, but the mechanistic burden shifting contemplated 

  

by Texas Department of Community Affairs, 450 U.S. 248 (1981) is 

not helpful. It does not square with the express wording of the 

V.R.A., with its Congressional history nor with the Supreme 

Court’s analysis in Thornburgh v. Gingles, 478 U.S. 30 (1986). 
  

The totality of circumstances determination is solely 

factual, evidentiary in nature. It is for the trier of fact to 

resolve. No question of law, mixed or otherwise is presented by 

this resolution. 

Causation considerations such as the cause of racial bloc 

voting are not contemplated by the "effects" or "impact? proof 

model embraced by the V.R.A. Plaintiffs and plaintiffs/- 

intervenors have shown that the effects of dilution are 

associated with at-large voting and can be cured by its 

elimination. The partisan voting explanation advanced by 

defendants begs the entire question of whether the choice of the 

black electorate is frustrated by the at-large election device. 

- 10 - 

 



ARGUMENT 
  

Plaintiffs/intervenors (Dallas County) reurge by reference 

all arguments advanced in their two earlier briefs filed with 

this Court in the spring and summer of 1990. Those arguments 

will not be repeated here. 

Rather, plaintiffs/intervenors (Dallas County) will address 

the questions of the Court and issues suggested by such inquiry 

in the order set forth in the Clerk’s letter of August 6, 1991. 

1. What degree of deference should this court extend to 
the district court’s conclusion that the state’s 
interests in the present electoral scheme did not 
outweigh minority interests in a more representative 
scheme? What is the standard of review? Did the 
district court so find? 

The deference to the district court’s findings required by 

law and of this Court is great. The finding alluded to by this 

question is not a conclusion of law at all. It is rather like 

a credibility resolution that the trier of fact must make when 

two expert witnesses collide with their opinions. This 

resolution is no more and no less of the type that this Court 

must leave undisturbed because of the operation of the clearly 

erroneous standard, Rule 52(a), F.R.C.P. 

The substitution of this Court’s finding or judgment on the 

issue is not contenanced by the law. Not long ago, when this 

Court sought to reverse a district court on its fact findings 

based on the evidence, the Supreme Court reversed this Court. 

Pullman - Standard v. Swint, 456 U.S. 273 (1982).    



    
In Swint, the Supreme Court went to some length to admonish 

appellate courts regarding substitution of their judgment for 

that of the trier of fact. The Supreme Court observed that the 

clearly erroneous standard does not have exceptions which 
  

exclude certain categories of fact findings. Facts are not to 

be divided and thereby given different degrees of deference. No 

difference in review exists for ultimate fact findings or fact 

findings subsidiary in nature. 456 U.S. at 287-88. 

The Supreme Court in Swint held that where litigation is 

determined on a fact or circumstance finding, the appellate 

court must not leave the bounds and constraints of the clearly 

erroneous standard. 456 U.S. at 286-87, fn. 16. The district 

court’s finding that the state’s interests did not override the 

showing of vote dilution and further were not compelling must 

remain undisturbed by this Court. It was simply an evidentiary 

determination. 

2 What are the state’s interests, if any, in maintaining 
the present electoral scheme? Explain. 

The state’s interest in maintaining the at-large, county- 

wide election scheme is largely if not completely historical. 

Because Texas has used a county-wide unit of government for a 

good part of its history, the state asserts an overriding need 

to continue county-wide election of judges despite the dilutive 

effect on minority vote. The state also enjoys a long and 

disgraceful history of overt racial discrimination which surely 

- 12 - 

 



    
must be kept in mind when considering historical reasons to 

preserve "old ways" of governance. 

The other interests which the state asserts are easily 

accommodated. Court administration is no more or less compli- 

cated on a county-wide basis, whether judges are elected county- 

wide or not. If elected from a county subdistrict, such courts 

would still serve the entire county. All administrative 

functions relative to the judicial system would remain the same 

as before. 

The state’s interest in coupling the electoral pool with a 

court’s jurisdiction is difficult to conceptualize. First, the 

state constitution provides for a elective system for judges 

which does not couple voters with any county-wide function of a 

district court. Texas Constitution, Article 5, Section Z2(a) (i). 

Second, a district court’s jurisdiction is not confined to 

the county in which it sits. Indeed, district courts enter 

orders and rulings with some frequency affecting many counties 

or even the entire State of Texas. See, for example, the orders 

in Edgewood v. Kirby, 250th Judicial District Court of Travis   

County, Cause No. 362,516, wherein a district judge has 

effectively altered school financing for each of the several 

hundred Texas school districts from Orange to El Paso and 

Brownsville to Amarillo. 

Third, visiting judges elected elsewhere in Texas hear and 

decide cases every day in counties subject of this litigation. 

- 13 = 

 



    
These judges have absolutely no linkage with the county in which 

their judicial functions are performed. 

Specialized courts may be accommodated in a variety of 

ways. Random designation around the county of specialized 

courts is one alternative. Administrative assignment of cases 

by specialty could achieve the same end. 

3. Justice Stevens’ opinion for the court recognized the 
. state’s interest in linking the geographical area from 

which a trial judge is elected to its jurisdiction. 
The court held that this interest was to be weighed in 
a determination of liability. Please explain your   

position regarding such an analysis. You should 
consider: 

a) What does a court weigh the state’s interest in 
linkage against? It is weighed against found 
dilution? How? 

b) Who bears the burden of proof? Does the Burdine 
construct in Title VII cases offer a useable 
model? 

c) Does the weighing present a question of fact or 
a question of law, or a mixed question? That 
is, who decides? 

Plaintiffs/intervenors (Dallas County) suggest that Justice 

Stevens’ statement regarding "linkage" concerned a district 

judge’s jurisdiction and the area of residency of the voters. 

Inasmuch as the district judge’s jurisdiction is coterminous 

with the boundaries of Texas, this link is a bit vague. What 

Justice Stevens must have had reference to was the issue of what 

county a judge sits in (most often) and who is allowed to vote 

on that judge. 

To that extent, Justice Stevens suggests that linkage " 

- 14 - 

 



    
is a legitimate factor to be considered by courts among the 

‘totality of circumstances’ ., . .." 115 L.Fd.24 at 387. 

Justice Stevens elaborated on this state interest as ". . . a 

factor to be considered by the court in evaluating whether the 

evidence . . . supports a finding of vote dilution violation 
  

v Sot (emphasis in original text). 115 L.Ed.2d at 387. 

A trier of fact, not this Court, should weigh this factor 

as part of the evidence regarding totality of circumstances. 

Linkage enjoys no particular weight, but rather is empowered or 

defeated by the weight of the evidence pro and con as to the 

interest. It iz clearly part but ". . . merely one factor to be 

considered in evaluating the ‘totality of circumstances’ . . ." 

115 L.Fda.24 at 387. 

This state interest is like all other factors subsumed by 

the totality of circumstances. No one factor is necessarily 

more powerful than another. Thornburgh v. Gingles, 478 U.S. 30 
  

(1986) at 45. Not all factors need be the subject of proof in 

any particular case. 

Plaintiffs and plaintiffs/intervenors bear the ultimate 

burden of persuasion on Section 2 vote dilution claims. 

Plaintiffs and plaintiffs/intervenors do not have any burden 

regarding states interest. They must show that the effect of 

the challenged election practices dilutes their right to vote as 

protected by the V.R.A., 42 U.S.C. Section 1973c. The proof 

model or construct set out in Texas Department of Community 
  

- 15 - 

 



    
Affairs v. Burdine, 450 U.S. 248, (1981) and followed in Ward’s   

Cove v. Atonio, 490 U.S. 642 (1989) does not fit an action   

brought under the effects section of the V.R.A. 

The Burdine construct does not allow the proper consider- 

ation of the "Senate factors" or the totality of circumstances 

  

described in Gingles, supra. Gingles was a post-Burdine 

decision by several years. ‘Nowhere in the Gingles analysis is 

there any room for engrafting an intent or disparate treatment 

proof model onto an analysis of voting rights claims. A review 

of the differences between totality of circumstances as 

described by Gingles and the legitimate, non-discriminatory 

rationale or legitimate busines reason (necessity) of Burdine 

and Ward’s Cove compels the conclusion that the Title VII   

mechanism does not work. Nor can a V.R.A. claim for effects 

discrimination be properly treated as a "mixed motive" case such 

as in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in that   

no question of intent nor motive need be addressed under the 

V.R.A. effects test. In sum, the Burdine construct is not a 

useable proof model here. 

The weighing of the state’s interest is solely a factual 

inquiry. No mixed question of law and fact is presented. The 

term "circumstances" is instructive as to this fact bound 

process. A finding as to totality of circumstances might be 

considered an ultimate fact finding but it is a fact finding 

governed by the clearly erroneous standard. The state’s 

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interest in maintaining its election scheme is determined by a 

review of evidence regarding all relevant circumstances, a 

function of the trier of fact. Batson v. Rentucky, 476 U.S. 79 
  

(1986) at 96-7. This is not a determination for an appellate 

tribunal. 

4. Is state’s interest adequately weighed by inquiry 
suggested by Gingles? If not, what additional inquiry 
is required to determine liability? Would inquiry 
into the cause of racial bloc-voting (e. g., inquiry 
into the existence of straight-ticket voting) be 
relevant to this post-Gingles weighing of state’s 
interest? 

The holding in HLA is clear: the state’s interest is to be 

weighed as merely one of the factors in assessing the totality   

of the circumstances. 115 'L.E4.24 at 387. No additional 

inquiry is suggested by the language of Justice Stevens in HLA. 

An inquiry as to the cause of racial bloc voting (i.e. , 

partisan voting or race) is an attempt to determine motive, 

intent or causation. It is plainly inappropriate here. This 

subject has tempted defendants throughout this litigation and it 

apparently is tantilizing to this Court. 

If such an irrelevant analysis were performed as to Dallas 

County, one would find the record evidence to indicate: 

1. party labels provide a shorthand indication of 

candidates views (see Tashjian v. Republican 
  

Party of Connecticut, 479 U.S. 208 (1986) at   

220). 

2. identification of candidates with particular 

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parties plays a role in the process by which 

voters inform themselves; 

3. black voters are making a choice when they cast 

a ballot, straight ticket or otherwise; 

4. the choice of the black electorate has always 

been defeated in at-large judicial voting; and 

5. the same racial bloc voting patterns are seen in 

non-partisan elections in Dallas as demonstrated 

by record evidence. See also Williams v. City 
  

of Dallas, 734 F.Supp. 1317, 1387-97 (N.D. Tex. 
  

1990). 

This inquiry as to causation would be irrelevant to a vote 

dilution claim. However, if the Court were to engage in such an 

analysis, it would lead to the inescapable conclusion that race 

considerations pervade elections in Dallas County (see, for 

instance, the district court’s Finding of Fact No. 30). 

Finally, plaintiffs/intervenors (Dallas County) submit that 

such an inquiry would have absolutely nothing to do with the 

question of the state’s interest. No linkage is apparent 

between the state’s advanced reasons for at-large elections and 

racial bloc voting. 

5. If the weighing of the state’s interest takes place as 
part of the court’s assessment of the "totality of the 
circumstances," then how should the court weigh 
state’s interest with other Zimmer factors in order to 
determine whether there is liability? 

As argued supra, plaintiffs/intervenors (Dallas County) 

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contend that the state’s interest as such is merely one of the 

factors to be weighed, with no predetermined weight or effect. 

The state’s interest is no more powerful than the evidentiary 

proof used to support it. It should be weighed just like any 

other factor. It is not a trump card. Gingles, supra, at 45. 
  

Most importantly, this Court should not weigh any evidence or 

resolve the totality of circumstances issue, for to do so would 

invade the province of the trier of fact. 

6. Given the state’s interest in linkage, must a plain- 
tiff prove as an element of her claim that only 
changes in the linkage (e.g. single member districts 
as opposed to changes in rules governing single shot 
voting, and majority runoff requirement) will remedy 
the dilution? For example, if a majority runoff 
requirement is a possible cause of dilution, must a 
plaintiff prove that it was not or should it be for 
the state to prove? Is there record evidence from 
which the court can determine the relative contribu- 
tions to any found dilution of the distinct elements 
of the total electoral process; e.g., any contribution 
to found dilution of majority run-off requirements, 
designated positions, etc.? 

Plaintiffs/intervenors (Dallas County) view these consider- 

ations as those completely related to remedy (ies). No hearings 

have been held, no evidence taken and no findings of fact or 

conclusions of law have been entered on these issues for review 

by this Court. This question underscores the reason to remand 

this case to the district court for hearings on remedy. 

 



Respectfully Submitted, 

AL. 
  

Edward B. Cloutman, III 
(Bar No. 044 110 00) 
Attorney at Law 
3301 Elm Street 
Dallas, Texas 75226-1637 
(214) 939-9222 
(214) 939-9229 (Telecopier) 

RE 
  

E. Brice Cunninghah bry EC 
(Bar No. 052 350 00) C7 
Attorney at Law 
777 South R.L. Thornton Frwy. 
Suite 121 
Dallas, Texas 75203 
(214) 428-3793 

COUNSEL FOR DALLAS COUNTY 
PLAINTIFFS /APPELLANTS JESSE 
OLIVER, JOAN WINN WHITE AND 
FRED TINSLEY 

 



    
CERTIFICATE OF SERVICE 
  

I hereby certify that a true and correct copy of the 

foregoing instrument has been served upon counsel of record, by 

placing same in the United States Mail, postage prepaid, on this 

the day of October, 1991: 
  

Mr. Renea Hicks 
Ms. Mary F. Keller 
Mr. Javier Guajardo 
Special Asst. Attorney General 
P.O. Box 12548 

Capitol Station 
Austin, Texas 78711-2548 

Mr. William L. Garrett 
Ms. Brenda Hull Thompson 
Garrett, Thompson & Chang, P.C. 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration 

& Education Project 
201 N. St. Mary’s 
Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 N. St. Mary’s 
Suite 624 
San Antonio, Texas 78205 

"Ms. Sherrilyn A. Ifill 
N.A.A.C.P. Legal Defense 

& Educational Fund, Inc. 
99 Hudson St., 16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave. 

Suite 2050 
Austin, Texas 78701 

- DY  - 

 



    
Mr. J. Eugene Clements 
Mr. John E. 0O’Neill 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

Mr. Robert H. Mow, Jr. 
Mr. David C. Godbey 
Mr. Bobby M. Rubarts 
Ms. Esther R. Rosenblum 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

Mr. Jim Boyle 
Law Offices of Jim Boyle 
801 Congress Avenue 
Suie 250 
Austin, Texas 78701 

Mr. Seagal V. Wheatley 
Mr. Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg, Kelleher 

& Wheatley, Inc. 
711 Navarro, Sixth Floor 
San Antonio, Texas 78205 

Mr, John 1. Hill, Jr. 
Mr. Andy Taylor 
Liddell, Sapp, Zivley, Hill 

& LaBoon 

3300 Texas Commerce Tower 

Houston, Texas 77002 

Mr. John N. Kennedy 
Mr. Thomas A. Casey 
Executive Counsel to the Governor 
Fourth Floor 
State Capitol Building 
Baton Rouge, Louisiana 70804 

Mr. Robert G. Pugh 
Mr. Robert G. Pugh, Jr. 
Pugh & Pugh 
Commercial National Tower 
Suite 3100 

333 Texas Street 
Shreveport, Louisiana 71101-5302 

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Mr. Kenneth C. Dejean 
Assistant Attorney General 
Louisiana Dept. of Justice 
P.O. Box 44005 

Baton Rouge, Louisiana 70804 

Ms. Cynthia Rougeou 
Legal Division 
Office of the Secretary of State 
State Capitol Building 
Baton Rouge, Louisiana 70804 

Mr. Michael H. Rubin 
Rubin, Curry, Colvin & Joseph 
Suite 1400 

One American Place 
Baton Rouge, Louisiana 70825 

Sia... 
Edward B. Cloutman, III 
  

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