Houston Lawyers' Association v. Mattox Appendix to Petition for Writ of Certiorari

    No. 90-

I n  T h e

Supreme Court of ttje Untteb states
Oc t o b e r  T e r m , 1990

Houston Lawyers’ Association, et al.,
Petitioners,

v.
J im Mattox, et al.,

Respondents.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

Of Counsel:
Matthews & Branscomb 
A Professional Corporation

Julius LeVonne Chambers 
*Charles Stephen Ralston 
Sherrilyn A. Ifill 

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

Gabrielle K. McDonald 
301 Congress Avenue 
Suite 2050 
Austin, Texas 78701 
(512) 320-5055

Attorneys for Petitioners

* Counsel of Record

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



TABLE OF CONTENTS

Page
Opinion, LULAC v. Clements, No. 90-8014 (5th Cir. 
September 28, 1990), reported at 914 F.2d, 620 (5th 
Cir. 1990) ........................ .......................................... la
Memorandum Opinion and Order, LULAC v. Clem­
ents, Civ. Action No. MO-88-CA-154, (U. S. District 
Court, Western District of Texas, November 8,
1989) ..........................................................................  183a
Letter of Assistant Attorney General John Dunne 
to Mr. Tom Harrison, November 5, 1990 .............. 305a



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 90-8014

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS COUNCIL NO. 4434, 

Plaintiffs-Appellees,

and
JESSE OLIVER, ET AL., 

Intervening 
Plaintiffs-Appellees, 
versus

WILLIAM P. CLEMENTS, ETC., ET AL.,
Defendants,

JIM MATTOX, ET AL.,
Defendants-Appellees,
Appellants,
versus

JUDGE F. HAROLD ENTZ, ETC., 
JUDGE SHAROLYN WOOD, ETC. 

and GEORGE S. BAYOUD, JR., ETC.,
Defendants-Appellants, 

and
TOM RICKHOFF, SUSAN D. REED, JOHN 
J. SPECIA, JR., SID L. HARLE, SHARON 
MACRAE and MICHAEL P. PEDAN, Bexar 
County, Texas State District Judges,

Appellants.

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

(September 28, 1990)



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Before , Chief Judge,
GEE, POLITZ, KING, JOHNSON, JOLLY, 
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, 
WIENER, AND BARKSDALE, Circuit Judges.* GEE, 
Circuit Judge:

Today we must decide whether Congress, by amending 

Section 2 of the Voting Rights Act in 1982 to add a "results" 

test for dilution of minority voting strength, meant to subject 

the selection of state judges to the same test as that for 

representative political offices by incorporating language 

from the Supreme Court decision in White v. Regester.1 For 

reasons to be given — and for the cardinal reason that judges

‘ Judges Williams and Garwood took no part in the Court’s 
deliberations or decision of this appeal. When this case was orally 
argued before and considered by the court, Judge Reavley was in regular 
active service. He participated in both the oral argument and the en banc 
conference.

In United States v. American-Foreign Steamship Co. , 363 
U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960), the Supreme Court, 
interpreting 28 U.S.C. § 371(b), decided which senior judges are eligible 
to participate in an en banc court. Compare United States v. Cocke, 399 
F.2d 433, 435 n.4 (5th Cir. 1968) (en banc). As Judge Reavley reads 
the American-Foreign Steamship Co. opinion, he considers himself 
ineligible now to participate in the decision of this case, and he has not 
therefore done so.

‘ 412 U.S. 755 (1973).



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need not be elected at all — we conclude that it did not.

In summary, these are that Congress was at great pains 

to phrase the new Section 2 in such language as to make 

clear that its results test applies to voting in elections of 

representatives only; that as of the amendment’s time judicial 

offices had never been viewed by any court as representative 

ones; that characterizing the functions of the judicial office 

as representative ones is factually false — public opinion 

being irrelevant to the judge’s role, and the judge’s task 

being, as often as not, to disregard or even to defy that 

opinion, rather than to represent or carry it out; that, 

because of the highly intrusive nature of federal regulation 

of the means by which states select their own officials, 

legislation doing so should not be pushed beyond its clear 

language; and that, in view of these considerations, we 

should place such a construction on the 1982 enactment 

reluctantly and only if Congress has clearly mandated such 

a singlar result.



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We have carefully weighed the text and provenance of 

the statutory language against the opposing factors urged 

upon us as interpretive guides. Having done so, we 

conclude that the language of the 1982 amendment is clear 

and that it extends the Congressional non-Constitutional 

"results" test for vote dilution claims no further than the 

legislative and executive branches, leaving the underlying, 

Constitutional "intent" test in place as to all three. 

Especially telling, we conclude, is the circumstance that in 

borrowing language from the Court’s White opinion 

Congress focused upon its reference to electing "legislators," 

broadening it so far, but only so far, as to electing 

"representatives," a term inclusive of elective members of 

the executive branch as well as of the legislature but not - 

- as, say, "state officials" would have been — of members 

of the judiciary. That Congress did exactly as we have 

described is as undeniable as it is inexplicable on any basis 

other than that of a legislative purpose to include all elected



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legislative and executive state officials but to exclude elected 

judges.

Finally, and bearing in mind the well-settled principle 

of statutory construction that the enacting Legislator is 

presumed to have been aware of the judicial construction of 

existing law,2 we note that, as of the time of the addition of 

Section 2(b) and of the explicit results test to the Voting 

Rights Act, every federal court which had considered the 

question had concluded that state judges were not 

"representatives" and did not fall within the definition of that 

term. Had Congress, then, meant to exclude votes in 

judicial elections from the ambit of its new results test, it 

could scarcely have done so more plainly than by adopting 

the term "representative" to describe that ambit.

Facts and Procedural History 

The underlying facts of this appeal are carefully and

2 See, e.g., Shapiro v. United States, 335 U.S. 1, 16 (1948); United 
States v. PATCO, 653 F.2d 1134, 1138 (7th Cir.), cert, denied, 454 
U.S. 1083 (1981).



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correctly set out in the panel opinion, 902 F.2d 293 (5th Cir. 

1990); we recapitulate them here no further than is necessary 

to an understanding of what we write today.

Plaintiffs attacked the Texas laws providing for 

county wide, at-large election of judges of the trial court of 

general jurisdiction, asserting that the imposition of a single­

member system was necessary to prevent dilution of black 

and Hispanic voting strength. In a bench trial, the federal 

court rejected their constitutional arguments grounded in the 

Fourteenth and Fifteenth Amendments, finding a failure to 

prove the requisite discriminatory intent for relief under 

those provisions. The court determined, however, that the 

Texas law produced an unintended dilution of minority 

voting strength, a circumstance sufficient to call for relief 

under the Voting Rights Act, as amended in 1982 to 

incorporate a "results" test dispensing with the necessity of 

proof of discriminatory intent. In consequence, and after 

pausing to allow for possible remedial action by the state,



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the court enjoined further use of the at-large system, 

confected and imposed a system of single-member elections, 

and directed that these be held last Spring.

On appeal, we stayed the court’s order, expedited the 

appeal, held a panel hearing on April 30, and handed down 

an opinion on May 11. Four days later, pursuant to a 

majority vote of active judges, we ordered rehearing of the 

appeal en banc; and we now render our opinion.

Analysis

The Panel Opinion

At the time of its decision, our panel was constrained by 

an earlier decision of the Circuit holding that Section 2 of 

the Act applied to elections held to fill positions on the 

Louisiana Supreme Court, a seven-member body.3 Chisom 

v. Edwards, 839 F.2d 1056 (5th Cir. 1988). Constraint was 

superfluous, however; for the panel embraced and agreed 

with the holding and reasoning of Chisom applying the Act

3 It is the settled law of our Circuit that one panel of the Court does 
not overrule another. Ryals v. Estelle, 661 F.2d 904 (5th Cir. 1981).



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to judicial elections. It went on, however, to conclude that 

although in its view judges were indeed "representatives of 

the people," and although as their representatives the judges’ 

elections were controlled by Section 2(b) of the Act, the 

elections of trial judges were not subject to voter-strength 

dilution concerns because their offices are single-member 

ones; and there is no such thing as a "share" of a single­

member office. LTJLAC v. Clements, 902 F.2d 293, 305 

(5th Cir. 1990). See Butts v. City of New York, 779 F.2d 

141 (2d Cir. 1985), cert, denied, 478 U.S. 1021 (1986) 

(offices of mayor, council president, comptroller are single­

member ones) and United States v. Dallas County, Ala., 850 

F.2d 1433 (11th Cir. 1988) (county probate judge). A 

vigorous dissent by Judge Johnson, author of the panel 

opinion in Chisom, disputed the panel majority’s 

characterization of judges from multi-judge districts as 

holders of single-member offices. We need not resolve this 

disagreement within the panel, however, as we do not reach



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the issue.

Statutory Background

Originally enacted in 1965 as an anti-test, anti-device

provision to relieve blacks of state-law strictures imposed

upon their Fifteenth Amendment voting rights, Section 2 of

the Voting Rights Act was construed by the Supreme Court

in Mobile v. Bolden, 446 U.S. 55 (1980), as adding nothing

to the Fourteenth and Fifteenth Amendment claims there

made and as requiring, for its enforcement, proof of racially-

discriminatory intent. At the time of Bolden, Section 2 read:

No voting qualification or prerequisite to voting, 
or standard, practice, or procedure shall be 
imposed or applied by any State or political 
subdivision to deny or abridge the right of any 
citizen of the United States to vote on account of 
race or color, or in contravention of the 
guarantees set forth in section 1973b (f)(2) of this 
title.

Congress reacted to Bolden by amending Section 2 to 

add to the statute a limited "results" test, to be applied and 

administered "as provided in subsection (b) of this section." 

As amended, Section 2 was cast in two subsections:



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(a) No voting qualification or prerequisite to voting 
or standard, practice, or procedure shall be 
imposed or applied by any State or political 
subdivision in a manner which results in a denial 
or abridgement of the right of any citizen of the 
United States to vote on account of race or color, 
or in contravention of the guarantees set forth in 
section 1973b(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 
circumstances, it is shown that the political 
processes leading 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 subsection (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 
circumstance 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.

Earlier, in the course of deciding White, a 1973 voting 

rights case invoking constitutional grounds, the Court had 

described the required standard of proof in felicitous terms:



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The plaintiffs’ burden is to 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 political processes and to elect 
legislators o f their choice.

412 U.S. at 766 (emphasis added). Casting about for 

appropriate language in which to couch its new subsection, 

and having inserted the reference to results in old Section 2, 

Congress settled upon the italicized portion of Justice 

White’s opinion quoted above, adopting it with only one 

significant alteration.

New subsection (b), then, is patterned on the White 

court’s language and provides with great specificity how 

violations of the newly incorporated results test must be 

established: a violation is shown on a demonstration, by the 

totality of the circumstances, that state (or political 

subdivision) nomination and election processes for 

representatives of the people’s choice are not as open to 

minority voters as to others. The precise language of the



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section is significant; a violation is shown, it declares, if it

is established that members of the protected classes

have less opportunity than other members of the 
electorate to participate in the political process 
and to elect representatives of their choice.4

Both the broad and general opportunity to participate in 

the political process and the specific one to elect 

representatives are thus treated in the new section.5 As for 

the former, protecting it appears to involve all of the primal 

anti-test, anti-device concerns and prohibitions of original 

Section 2; and its provisions may well extend to all elections 

whatever, as did they.6 These broader considerations center

4 As we note in text, the section goes on to specify that election 
success of class members is a circumstance to be considered and to 
disavow specifically any intent to mandate proportionate representation 
by race.

3 Not all aspects of that process pertain to elections, e.g. , the 
celebrated New England town meeting.

6 That scope is not at issue today, the trial court having found an 
absence of discriminatory intent; and we do not decide it. We point out, 
however, that there can be no doubt whatever that the provisions of the 
Fourteenth and Fifteenth Amendments, enforceable by means of Section 
1983 actions, apply to judicial elections to forbid intentional 
discrimination in any aspect of them. City o f Mobile v. Bolden, 446 
U.S. 55 (1980); Voter Information Project v. City o f Baton Rouge, 612 
F.2d 208 (5th Cir. 1980).



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on the voter and on his freedom to engage fully and freely 

in the political process, untrammeled by such devices as 

literacy tests and poll-taxes. Where judges are selected by 

means of the ballot, these safeguards may apply as in any 

other election, a matter not presented for decision today. 

The second consideration — opportunity to elect 

representatives of one’s choice — is also couched in the 

language borrowed from White v. Regester, 412 U.S. 755, 

766 (1973); and, as we have noted, the Congress was at 

some pains to adapt and broaden the Court’s phrases so as 

to convey its precise meaning. Before pursuing this aspect 

of our inquiry further, however, we turn aside to consider 

briefly the nature of the judicial office and two other closely 

related topics: judicial selection and the state of authority on 

judges’ status as representatives.



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The Judicial Office

Senators and members of the House of Representatives 

hold clearly political offices. Today, both are directly 

elected by the people; and it is their function as 

representatives to synthesize the opinions of their constituents 

and reflect them in the debate and deliberation of public 

issues.7 The executive branch of the government, headed by 

our highest officer elected at large in the nation, is also 

expected to bring the views and opinions which he offered

James Madison, discussing the unquire relationship of the 
representative to his const!tutents, for example, referred to 
a relationship of "intimate sympathy" between the elected 
and his electors, and argued that a legislator should fee an 
"immediate dependence" upon the will of his constituents. 
Frequent elections, according to Madison, are the only way 
to ensure this sort of relationship. Only by requiring 
legislators to return periodically to their constituents to seek 
their ongoing support and input, can the communication 
between the voters and their representatives that is essential 
to the maintenance of democratic government take place. 
Congress is a "popular" institution; it is, therefore 
inherently political.

Hickok, Judicial Selection: The Political Roots o f Advice and Consent 
in Judicial Selection: Merit, Ideology, and Politics 4 (National Legal 
Center for the Public Interest 1990).



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the electorate in seeking the Presidency to bear on the job of 

running the federal machinery.

By contrast, the judiciary serves no representative

function whatever: the judge represents no one.8 As

Professor Eugene Hickok has recently observed, in terms

upon which we cannot improve:

The judiciary occupies a unique position in our 
system of separation of powers, and that is why 
the job of a judge differs in a fundamental way 
from that of a legislator or executive. The 
purpose of the judiciary is not to reflect public 
opinion in its deliberations or to satisfy public 
opinion with its decisions. Rather, it is to ensure 
that the ordinary laws do not run contrary to the 
more fundamental law of the Constitution, to 
resolve disputes and controversies surrounding 
the law, and to resolve disputes among contesting 
parties over the meaning of the law and the 
Constitution. If a member of congress serves to

8 That this is the case is strongly implied in the Constitution, which 
provides for an appointive federal judiciary and was adopted by thirteen 
states, none of which had an elective one. Yet the Framers believed they 
were confecting a federal republic, and Article 4, Section 4, of the 
Constitution guarantees "to every State in this Union a Republican Form 
of Government . . . "  But if judges hold representative offices, or 
represent any constituency, appointing them is scarcely consistent with 
a republican system, defined by the Third Edition of Webster’s 
Unabridged as "[A] government in which supreme power resides in a 
body of citizens entitled to vote and is exercised by elected officers and 
representatives . . . ."



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make the law and a president to enforce it, the 
judge serves to understand it and interpret it. In 
this process, it is quite possible for a judge to 
render a decision which is directly at odds with 
the majority sentiment of the citizens at any 
particular time. A judge might find, for 
example, a very popular law to be 
unconstitutional. Indeed, it can be argued that 
the quality most needed in a judge is the ability 
to withstand the pressures of public opinion in 
order to ensure the primacy of the rule of law 
over the fluctuating politics of the hour.

Hickok, op. cit. supra n.7, at 5.

Thus the scholar, and with one voice the case authority 

of the time agreed. In 1982, as of the time of Congress’s 

adoption of the Court’s language from White, at least fifteen 

published opinions by federal courts -- opinions which we 

list in the margin -  had held or observed that the judicial 

office is not a representative one, most often in the context 

of deciding whether the one-man, one-vote rubric applied to 

judicial elections.9 Not one had held the contrary.

9 Sagan v. Commonwealth o f Pennsylvania, 542 F. Supp. 880 (W.D. 
Pa. 1982), appeal dismissed, 714 F.2d 124 (3rd Cir. 1983)

(cross filing permitted by candidates for judicial office, prohibited 
for legislative and executive candidates)



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Concerned Citizens o f Southern Ohio, Inc. v. Pine Creek 
Conservancy Dist., 473 F. Supp. 334 (S.D. Ohio 1977)

The Ripon Society, Inc. v. National Republican Party, 525 F.2d 567 
(D.C. D.C. 1975), cert, denied, 424 U.S. 933, 47 L.Ed.2d 341 
(1976)

Fahey v. Darigan, 405 F. Supp. 1386 (D.C.R. I. 1975)

Gilday v. Board o f Elections o f Hamilton County, Ohio, 472 F.2d 
214 (6th Cir. 1972)

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff’dmem., 
409 U.S. 1095, 34 L.Ed.2d 679 (1973)

Buchanan v. Gilligan, 349 F. Supp. 569 (N.D. Ohio 1972)

Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971), ajf'd 
mem., 409 U.S. 807, 34 L.Ed.2d 68 (1972)

Sullivan v. Alabama State Bar, 295 F. Supp. 1216 (M.D. Ala.), 
ajf’d per curiam, 394 U.S. 812, 22 L.Ed.2d 749 (1969) (involving 
Board of Commissioners of Alabama State Bar)

Irish v. Democratic-Farmer-Labor Party o f Minnesota, 287 F. 
Supp. 794 (D.C. Minn.), ajf’d, 399 F.2d 119 (8th Cir. 1968)

Buchanan v. Rhodes, 249 F. Supp. 860 (N.D. Ohio 1966), appeal 
dismissed, 385 U.S. 3, 17 L.Ed.2d 3 (1966), and vacated, 400 
F.2d 882 (6th Cir. 1968), cert, denied, 393 U.S. 839, 21 L.Ed.2d 
110 (1968)

N.Y. State Assn, o f Trial Lawyers v. Rockefeller, 267 F. Supp. 148 
(S.D.N.Y. 1967)

Kail v. Rockefeller, 275 F. Supp. 937 (E.D.N.Y. 1967)

Romiti v. Kerner, 256 F. Supp. 35 (N.D. 111. 1966)

Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964)



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Typical of these is the opinion in Wells v. Edwards, a 

decision by a three-judge district court from our own circuit 

which was affirmed on appeal by the Supreme Court.10 

There, after reviewing various authorities, the district court 

expressed the entire rationale of its view as follows:

"Judges do not represent people, they 
serve people." Thus, the rationale behind the 
one-man, one-vote principle, which evolved out 
of efforts to preserve a truly representative form 
of government, is simply not relevant to the 
makeup of the judiciary.

"The State judiciary, unlike the legislature, is not 
the organ responsible for achieving representative 
government."

347 F. Supp., at 455-56 (quoting from Buchanan v. Rhodes,

Since 1982 a few courts have held that the use of the term 
"representatives" in Section 2 does not necessarily exclude judges. See 
Southern Christian Leadership Conference o f Alabama v. Siegelman, 714 
F. Supp. 511 (M.D. Ala. 1989); Clark v. Edwards, 725 F. Supp. 285 
(M.D. La. 1988); Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988); 
Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987). (All 
recognizing that the "one-man, one-vote" principle does not apply to 
judicial elections and that, unlike legislators, judges do not "represent" 
those who elect them, but, nevertheless, refusing to apply its established 
meaning to Congress’ use of the term "representatives" in Section 2 of 
the Voting Rights Act).

10 347 F. Supp. 453 (M.D. La. 1972), affd  mem.. 409 U.S.
1095 (1973) (Justice White, joined by Justices Douglas and Marshall, 
dissenting).



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249 F. Supp. 860 and New York State Association o f Trial 

Lawyers v. Rockefeller, 267 F. Supp. 148). It is impossible, 

given the single point at issue and the simple reasoning 

stated, to believe that the majority of the Supreme Court, in 

affirming Wells, did not concur in that reasoning. If there 

were doubt, however, it would be laid to rest by the terms 

of the dissent, which attacks the district court opinion in 

stem, egalitarian terms for having, like other opinions cited 

by it, held "that the one-person, one-vote principle does not 

apply to the judiciary." 409 U.S. 1095, 1096 n.2. Nor is 

it likely, we think, that the Supreme Court would hold, as it 

necessarily did in affirming Wells v. Edwards, that although 

for purposes of the Equal Protection Clause of the 

Fourteenth Amendment judges "do not represent people," all 

the same, for purposes of Section 2(b) of the Voting Rights 

Act, judges are "representatives of [the people’s] choice."



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Both must be true, or neither one.11

Wells is not only instructive as to the meaning of 

"representatives" and thus as to the scope of Section 2, it is 

dispositive of the precise issue of the scope of Section 2’s 

applicability raised in this case. The Wells holding -  that 

the one-person, one-vote rule does not apply to the judiciary 

— leads inexorably to the conclusion that judicial elections 

cannot be attacked along lines that their processes result in 

unintentional dilution of the voting strength of minority 

members. Absent the one-person, one-vote rule -  that the 

vote of each individual voter must be roughly equal in

11 I t  i s  interestig to note that the dissent from the panel
opinion, in the very course of complaining of the majority’s refusal to 
apply Section2 to trial judges, candidadly recognizes that judges, unlike 
legislative and executive officers, "represent" no one:

When weighing a state’s claim that it has a compelling 
interest in retaining the existing at-large system, courts 
should keep in mind the common sense notion that the role 
of judges differs from that of legislative and executive 
officials. Since it is not the role of judges to "represent" 
their constituents an examination of the "responsiveness" 
of the elected official to minority concerns is clearly 
irrelevant.

902 F.2d at 317 n.17.



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weight to the vote of every other individual voters, 

regardless of race, religion, age, sex, or even the truly 

subjective and uniquely individual choice of where to reside 

-  there is no requirement that any individual’s vote weigh 

equally with that of anyone else. This being so, and no such 

right existing, we can fashion no remedy to redress the 

nonexistent wrong complained of here.

The notion of individual vote dilution, first developed by 

the Supreme Court in Reynolds v. Sims, 377 U.S. 533 

(1964), was the foundation for the concept of minority vote 

dilution to be later elaborated in Whitcomb v. Chavis, 403 

U.S. 124 (1971)12, White v. Regester, supra, and Zimmer v. 

McKeithen, 485 F.2d 1297 (5th Cir. 1973). Individual vote 

dilution was remedied by the Court through the concept of 

one-person, one-vote — the guarantee of substantial equality

In Whitcomb v. Chavis the Supreme Court directly 
considered a racial dilution challenge and rejected the claim that the 
Indiana legislative reapportionment plan operated to minimize or cancel 
out minority voting strength. The Court held that the mere fact that 
ghetto residents were not proportionately represented did not prove a 
consitutional violation unless they were denied equal access to the 
political process.



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among individual voters. With that guarantee in mind, 

remedial schemes to combat minority vote dilution were 

devised on a case by case basis.

Almost twenty years ago, we articulated the conceptual

link between individual vote dilution and minority vote

dilution, making clear the latter’s dependence on the former:

Inherent in the concept of fair representation are 
two propositions: first, that in apportionment
schemes, one man’s vote should equal another 
man’s vote as nearly as practicable; and second, 
that assuming substantial equality, the scheme 
must not operate to minimize or cancel out the 
voting strength of racial elements of the voting 
population.

Zimmer, 485 F.2d at 1303 (emphasis added).

For it is the assumption of substantial equality (achieved 

through the guarantee of one-person, one-vote) that underlies 

the concept of minority vote dilution. This assumption, the 

Court held in Wells, does not obtain in judicial elections; 

and without that assumption there exists no yardstick by 

which to measure either the "correct" magnitude of minority 

voting strength or the degree of minority vote dilution.



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Thus, on a conceptual level, and to paraphrase Justice 

Harlan, we are asked to undertake the ineffable task of 

equalizing that which we cannot measure. Whitcomb, 403 

U.S. at 169 (Harlan, J., separate opinion).

We are therefore unable to take the crucial step from 

individual vote dilution to minority vote dilution in this case, 

not only because the holding in Wells forbids us to assume 

the existence of "substantial equality," but because it 

compels us to recognize that no such equality need exist in 

the arena of judicial elections. The bridge between the two 

concepts, fashioned by the Court in Reynolds v. Sims and 

applied there to state legislatures, is of limited length and, as 

the Court made clear by affirming Wells v. Edwards, does 

not extend to the judiciary.

Finally, as the district court stated in Wells:

The primary purpose of one-man, one-vote 
apportionment is to make sure that each official 
member of an elected body speaks for 
approximately the same number of constituents.

Wells, 347 F. Supp. at 455.



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We reiterate that judges do not represent people and, thus, 

have no constituents. Judges speak the voice of the law. In 

doing so they speak for and to the entire community, never 

for segments of it and still less for particular individuals. To 

describe the judge’s office merely as "not a representative 

one" is a gross understatement; in truth, it is rather the 

precise antithesis of such an office. Just insofar as a judge 

does represent anyone, he is not a judge but a partisan.

New Subsection 2(b)

So the land lay when Congress enacted Section 2(b) in 

1982, choosing to replace the term "legislator" in the White 

phraseology with the term "representative" -  a term which 

is employed only at this spot and appears nowhere else in the 

entire Voting Rights Act. By the settled canon of 

construction, we must presume that Congress was aware of 

the uniform construction which had been placed by the 

courts on the term that it selected, a construction by which 

the judicial office was not deemed a "representative" one.



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Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988); 

Sutton v. United States, 819 F.2d 1289 (5th Cir. 1987). 

Against this background, then, the Congress deliberately 

picked a term of art for use in amending Section 2 that up 

to that time had been universally held, and which it knew 

had been universally held by every federal court that had 

considered it as of that date, neither to include judges nor to 

comprise judicial offices. In view of these circumstances, 

we find it all but impossible to avoid the conclusion that 

Congress intended to apply its newly imposed results test to 

elections for representative, political offices but not to vote 

dilution claims in judicial contests, leaving the latter to be 

regulated and controlled by state law, by the Constitution, or 

by other provisions of the Voting Rights Act.13 Given the

Indeed, as the panel opinion correctly notes, many states 
of the Union over the course of their history have maintained an 
appointive judiciary, and some do so today. 902 F.2d, at 296. Given 
the fact, also noted there, that none of the original thirteen states elected 
its judiciary, an appointive system must be viewed as consistent with the 
"Republican Form of Government" guaranteed the States by Article 4, 
Section 4, of the Constitution.

In view of this, and while it is certainly possible to imagine



- 26a -

mutual exclusiveness of the two terms, to suggest that 

Congress chose "representatives" with the intent of including 

judges is roughly on a par with suggesting that the term 

night may, in a given circumstance, properly be read to 

include day.

We are further persuaded by the knowledge that in 

amending Section 2 Congress was well aware of the genesis 

of the concept of minority vote dilution. The legislative 

history makes clear that Congress knew that "[t]he principle 

that the right to vote is denied or abridged by dilution of 

voting strength derives from the one-person, one-vote 

reapportionment case of Reynolds v. Sims." S. Rep. No. 

417, 97th Cong., 2d Sess., reprinted in 1982 U.S. Code 

Cong. & Admin. News at 196. Given its awareness of the

Congress’s taking the position that, while states need not elect judges, if 
they do so they must do so on exactly the same terms as they elect 
representatives, the view which it adopted seems at least equally cogent: 
that since the office of the judge is not to represent the popular will, and 
since judges are not expected to initiate significant departures in law or 
policy, the states need not be subjected in their selection or election to 
so severe and intrusive a provision as one applying a "results" test to 
claims of minority vote dilution.



- 27a -

Wells v. Edwards holding — that the one-person, one vote 

rule does not apply to the judiciary — we must conclude that 

Congress, aware of the combined effect of Reynolds and 

Wells, limited the scope of amended Section 2 so as to rule 

out the judicial branch, an area within which the issue of the 

viability of minority vote dilution claims had been well 

settled.

Countervailing Arguments

Thus we find on one side of the argument whether 

Section 2(b)’s results test for elections applies to judicial 

ones the Congress’s carefully chosen term of art — 

"representatives" -  deliberately selected by Congress and 

placed in the section itself, with a settled legal meaning 

excluding judges. One the other side are ranged contentions 

of a more attenuated and derivative nature, which we now 

consider briefly.

First we are told that the definition of "voting," 

included in the original act as Section 14(c(l) and now



- 28a -

codified as 42 U.S.C. 1973(l)(c)(l), refers to "candidates 

for public or party office" and that, since judicial hopefuls 

are included within the generality of such a reference to 

candidates, the results test which applies to all others must 

be applied to them as well. The specific controls the general 

here, however, as in any other instance of statutory 

construction; and we see little force in the claim that an 

inference from a general term buried in a definitional section 

far from Section 2 should' control the specific and 

supervening language inserted by Congress in the section 

itself. Nor is there any necessary conflict between the two 

provisions: as we have noted, it is only the application of 

the results test portion of amended Section 2 to vote dilution 

claims in judicial elections that is at issue today. Other 

portions of the section may well apply to such elections, as 

may the results test to claims other than those of vote 

dilution, along with the indubitably applicable Constitutional 

prohibitions against any intentional act of discrimination in



- 29a -

any electoral aspect.

The same answer also refutes the next argument: that 

because, as was held in Haith v. Martin, 618 F. Supp. 410 

(E.D.N.C. 1985), aff’d mem., 477 U.S. 901 (1986), Section 

5 of the Act applies to state judicial elections, Section 2 must 

apply as well. As we have explained, portions of Section 2 

may well apply — except for the results test introduced in 

response to the holding in Bolden to govern vote dilution in 

the election of "representatives," which by its own terms 

does not.

Next we are told, in yet another general argument 

similar to those we have just rejected, that we must apply the 

dilution results test to judicial elections because the 1982 

amendments to Section 2 were intended to expand, rather 

than to restrict, the section’s coverage. Doubtless they were 

generally so intended; doubtless they did so; but the presence 

of a general intent to expand coverage requires neither an 

expansion at all points nor the maximum imaginable



- 30a -

expansion at any and is not even necessarily at odds with a 

specific intent to restrict coverage at one or another of them. 

Section 2 was greatly expanded, expanded to add a results 

test to the intent test of the Fourteenth and Fifteenth 

Amendments — expanded in most respects, but not in all.

Finally, in a scatter of birdshot contentions, counsel 

point to the broad construction that the Attorney General has 

historically accorded the Voting Rights Act, to the absence 

in the Act’s legislative history of any explicit statement that 

judicial elections are not covered, to the presence in that 

history of references to statistics on minority performance in 

various elections (including judicial ones), and to a single 

reference to "judicial districts" in a cautionary parade of 

horribles to be found in a subcommittee report hostile to the 

proposed 1982 amendments. None of these seems to us to 

weigh very heavily in the scales against the specific



- 31a

terminology of Section 2 itself.14 In the words of Justice 

Frankfurter, writing for a unanimous court in Greenwood v. 

United States, it appears to us that "this is a care for 

applying the canon of construction of the wag who said, 

when the legislative history is doubtful, go to the statute." 

350 U.S. 366, 374 (1955).

It is, and we do so.

Conclusion

In no area should federal courts tread more cautiously 

than where it is contended that Congress has imposed 

incremental Federal power on the States; and the nearer to

Thus, as Justice Scalia has very recently suggested, we 
"appl[y] to the text of the statute the standard tools of legal reasoning, 
instead of scouring the legislative history for some scrap that is on point
. . . ." Begier v. United States,___U .S .____ , ____; 110 L.Ed.2d 46,
63 (1990) (concurrence in judgment).

And these small matters are indeed scourings. The panel opinion 
avers, 902 F.2d at 299, and we do not doubt, that the reference to 
"judicial districts" is the sole ference to the judiciary in all the legislative 
history of the 1982 amendments of the Act. It will be noted that even 
this reference is one to judicial districts, not to judicial candidates; and 
in our Circuit many officials such as sheriffs, highway commissioners, 
district attorneys and clerks of court, who are "representatives" and not 
judges, are elected from judicial districts, e.g., Miss. Code Ann. (1972) 
65-1-3.



- 32a -

the core of traditional state authority and concern we are 

asked to venture, the more warily we should tread. The 

point is elegantly made by the panel opinion in this very 

case:

Few would quarrel with the assertion that Section 
2(b) as interpreted has worked a fundamental 
change in the Act, highly intrusive to the states. 
We have insisted in other contexts that Congress 
clearly state its intent to supplant traditional state 
prerogatives. Judicial insistence upon clear 
statement is an important interpretative tool 
vindicating concern for separation of powers and 
federalism. See Atascadero State Hospital v. 
Scanlon, 473 U.S. 234, 105 S.Ct. 3142 (1985); 
Pennhurst State School and Hospital v. 
Halderman, 465 U.S. 89, 104 S.Ct. 900 (1984) 
(.Pennhurst II). This insistence upon an 
"unequivocal expression of congressional intent," 
Pennhurst II, 465 U.S. at 99, 104 S.Ct. at 907, 
is based upon the fundamental nature of the 
interests at stake. "The ’constitutionally 
mandated balance of power’ between the states 
and the Federal Government was adopted by the 
Framers to ensure the protection of ’our 
fundamental liberties. ’" Atascadero, 105 S.Ct. at 
3147 (quoting Garcia v. San Antonio 
Metropolitan Transport Authority, 469 U.S. 528, 
572, 105 S.Ct. 1005, 1028 (1985) (Powell, J., 
dissenting)).

LULAC, 902 F.2d at 301.



- 33a -

It is hard to envision any area lying closer to the core 

of state concerns than the process by which it selects its own 

officers and functionaries. Any federal trenching here 

strikes at federalism’s jugular; and such a radical federal 

trenching as is contended for today should therefore demand 

a very clear statement indeed. Instead, as regards the issue 

in this case, our investigation reveals an all but total absence 

of relevant legislative history and a statutory text that 

unambiguously excludes elections of non-representative state 

officers from Section 2’s highly intrusive results test. If this 

was not the intended effect of Congress’s substitution of 

representatives for legislators in Justice White’s language, no 

other suggests itself; and we must reject any notion that 

Congress went to all the trouble of selecting that language 

and carefully modifying it, just so far and no further, 

randomly and with nothing particular in mind.16 It is never

Both the dissent and, more obliquely, the special 
concurrence take our writing to task as resting on the narrow foundation 
of one word. In main, this is true; for the substitution of the term 
"representative" is all but the sole clue to be found — in either the



- 34a -

proper for us to extend a statute’s force by construction into 

areas where Congress has not seen fit or has been unable to 

agree to go, and never less proper than in such supremely 

sensitive territory as this.

Judicial offices and judicial selection processes are sui 

generis in our nation’s political system; they determine the 

referees in our majoritarian political game. These offices 

are not "representative" ones, and their occupants are not 

representatives. Indeed, the state processes for filling them 

need not even be elective, as those for all representative 

offices presumably must be. See U.S. Const., Art. 4, Sec. 

4. In 1982, when Congress determined to expand Section 2 

of the Act to incorporate a results test for vote dilution, it

statutory text or the legislative history -- to guide the interpreter in 
unraveling the legislative intent behind this enigmatic statute. Dim or no, 
it is the only light available to guide our footsteps, and we have followed 
it as best we could.

By contrast, our specially concurring and dissenting brethren 
proceed by ignoring the sole guide available, first declaring that the only 
light that shines is of no help, then proceeding in total darkness and, so 
proceeding, to declare that the statute means, not what it says, but what 
they think Congress should said -  pausing briefly in passing to accuse 
our majority of doing what they in fact have done themselves.



- 35a -

stopped short of imposing such a test for judicial offices on 

the States by limiting it to their election of "representatives." 

Should Congress seek to install such a test for judicial 

elections, it must say so plainly. Instead, it has thus far 

plainly said the contrary. Chisom v. Edwards, 839 F.2d 

1056 (5th Cir. 1988) is overruled.

REVERSED.



- 36a -

CLARK, Chief Judge, concurring specially: This brief

soliloquy is necessarily said, in my respectful view, because 

every other opinion goes farther than the Voting Rights Act 

intends. My brothers Gee and Higginbotham are at odds 

about the way the court should take to reach the same result. 

While their disagreement centers on the representative nature 

of the judicial office, the essence of their analyses of the 

impact of racial vote dilution in this judicial election process 

based on the nature of the office is similar-so similar that, 

if their opinions were expressly limited to the facts of the 

present case, I agree with both.

There is no disagreement that Section 2 of the Voting 

Rights Act, before its amendment, forbade any practice or 

procedure that abridged the right to vote because of race or 

color. All also agree that the legislative intent of the 

amendment was only to broaden the test for vote dilution

from "intent" to "result.



- 37a -

The elements of Judge Gee’s analysis are that, since 

section 2(b) defines vote dilution in terms of representatives, 

no vote dilution claim can be made in any election of a 

judicial officer because a judge can never be a 

representative—a conclusion he finds confirmed by the 

Supreme Court’s refusal in Wells v. Edwards, to apply one- 

man, one-vote standards to judicial election districts.

Judge Higginbotham rejects this analysis. He would 

base reversal on the premise that none of several elected trial 

judges who all function singularly in their work can be 

subject to the single-member redistricting claim made here. 

My concern is that the court’s opinion, as now written, puts 

vote dilution attacks on (1) judicial elections which cannot be 

resolved by examining the nature of the office, and (2) 

"issue" elections (such as referenda on constitutional 

amendments and bond issue elections) beyond the reach of 

amended section 2.

Judge Gee starts with the observation that the words of



- 38a -

section 2 expressly limit vote dilution to elections of 

representatives. I can readily agree section 2 does not apply 

to the elections challenged here. It involves only the election 

of persons and voter impact turns entirely on the nature of 

the judicial office. This brings section 2(b) into play. The 

inherent nature of the judicial function and, indeed, the 

constitutional limits of due process require that every judge 

be impartial between litigants and neutral as to claims 

presented. In the discharge of official duties, no judge can 

ever "represent" the electors in the jurisdiction served by the 

court. A vote for a judge differs from a vote for other types 

of officers. Whether the choice be for councilman, sheriff 

or governor, and whether it be based on whim or party or 

nonpartisan analysis of the individual candidate, votes for 

these types of officials are cast for those who will best 

express the wishes and views of their constituents. This 

cannot be so when a voter picks a judge. Legislators and 

executives are expected to represent. Voters must know



- 39a -

judges cannot. The same principles control when a state 

provides for election rather than appointment of its judiciary. 

The choice seeks to assure the public that the judicial 

function will be kept accountable to the common sense of the 

electorate. It is expected that candidates who lack training 

or a reputation for honesty or sound intellect will not be 

elected. In like manner, those who are indolent, will not 

decide cases or decide erratically will not be reelected. 

Overarching any considerations of voter motivation is the 

due process neutrality required in the conduct of the office. 

It does not permit the judge’s responsiveness to the 

electorate’s concept of common sense to become 

representation of the electorate. The State of Texas has a 

strong interest, and, indeed, a fundamental right to choose 

to have these judges elected in the manner provided here. 

Its choice does not violate amended section 2.

The difficulty I have with Judge Gee’s analysis is that 

it has no limit. There are many types of elections which



- 40a -

involve issues, not candidates, which surely ought to be 

subject to the vote dilution stricture of section 2 despite the 

absence of any question of representation. But merely 

noting the applicability to "issue" elections would not 

adequately define the reach of section 2. It is imperative, in 

my view, that a bright circle be drawn around judicial 

elections as well. Judge Gee’s reasoning would expressly 

deny section 2(a) coverage to judicial elections in situations 

beyond today’s facts, as he makes clear by overruling 

Chisom v. Edwards. Section 2(a) is an integral part of a 

remedial statute. It deserves to be interpreted so as to 

prevent racial vote abridgment even when it occurs in a 

judicial election. The phrase "as provided in subsection (b) 

of this section" which appears at the end of subsection (a) 

should be read as giving an example of proscribed vote 

dilution. It does not provide that section 2(b) establishes the 

only way the section can be violated.

It is clear to me that when a state continues to apply a



- 41a -

voting procedure in a manner which now results in an 

abridgement of the right of a citizen to vote on account of 

race, that procedure is still condemned by amended section 

2(a), just as it was before the amendment.

Nothing we say today should be taken as passing on a 

claim that a judicial election process in which judges are 

elected by fewer than all of the eligible voters within the 

jurisdictional area of the court on which the judge will serve 

has become a violation of section 2. Such elections involve 

districting of voters in a manner entirely unrelated to the 

representative nature of the judge’s office.

Gingles tells me that whether the political process 

chosen by Texas for selecting its judges is equally open 

depends upon evaluation of past and present reality under a 

functional view of the process. There is nothing wrong with 

the state’s choice to elect any number of a county’s district 

judges county-wide. However, if the state has chosen to 

divide a single judicial jurisdiction into separate groups of



- 42a -

electors, that choice could, with changes in demographics or 

other conditions come to raise real issues of racial 

gerrymander, gross diminution of voting strength, candidate 

slating ability or other violations of equal protection which 

have nothing to do with the due process concerns which 

control the execution of judicial duties, or with the manner 

in which the office of judge is carried out. Of course, I 

agree that Wells v. Edwards establishes that approximate 

numeric equality of voters between judicial districts is not 

required. However, we need not and should not decide now 

that judicial subdistricts which grow to have gross numeric 

or racial disparities in their make-up will always be free of 

possible section 2 problems. For this reason, I respectfully, 

but expressly, disagree with the majority’s flat-out overruling 

of Chisom v. Edwards.

We are not confronted here with any claim of vote 

dilution resulting from long-established subdistricts alleged 

to have become racially invidious on a basis of intra­



- 43a -

jurisdictional voter distribution. This was the claim that was 

before this court in Chisom. The holding in Chisom 

reversed a dismissal on the pleadings. I agree that such a 

reversal was proper, even though I cannot agree with all said 

in Part I of Judge Higginbotham’s concurrence or Judge 

Johnson’s dissent because both deny vitality to section 2(b). 

Since we are writing en banc, I am free to disagree with the 

reason given for the result in Chisom—that section 2 applies 

to all judicial elections. I am of the opinion that it is equally 

wrong to say that section 2 covers all judicial elections as it 

is to say it covers none. However, if today’s facts were the 

same as Chisom’s, I would hold a claim that judicial 

subdistricts, once having no invidious purpose, but alleged, 

over time, to have come to abridge section 2 rights, must be 

factually developed and cannot be dismissed on pleadings 

alone.

If the issue were reached in today’s case, I would also 

agree with Judge Higginbotham that the presence of multiple



- 44a -

judicial posts on the ballots of plaintiffs here gives them no 

section 2 right to have single-judge subdistricts drawn. I 

would do so because I am not required to agree that the 

principle applies on any broader scale then the facts before 

us present. His function-of-the-office analysis is, to me, 

identical in concept to the majority view. The caveat I think 

must be added to both is that only when the area of 

jurisdiction of each of several jurist to be elected is 

coextensive with the area of residence of those that elect 

them, is each vote for a judge bound to be equal to every 

other vote that may be cast.

I would not agree with Judge Higginbotham that the 

single-judge, trial-court function of the judicial office is a 

critical factor. The analysis ought to be the same regardless 

of how the judge judges. When an appellate judge-who 

must function with other appellate judges to accomplish the 

judicial task-serves the same jurisdictional area as that which 

defines the electorate, section 2 does not allow a single



- 45a -

member subdistricting remedy to be applied. This is so 

because no intradistrict or intrastate violation of section 2 is 

possible. The collegial nature of the appellate office in no 

way alters the compulsion for due process neutrality. When 

this neutrality is coupled with congruence of jurisdiction and 

electorate, they jointly assure equality in voting practices and 

procedures, negate representation and eliminate the 

possibility of vote dilution.

However, as with my partial agreement with Judge 

Gee’s analysis, agreement with Judge Higginbotham should 

not be taken as controlling fact situations not before us here. 

The single-judge, trial-court functional analysis proceeds 

solely on what the judge does and the way he does it. These 

analyses change no basic principles. If the coincidence of 

voter residence and jurisdiction does not exist, the same 

possible vote dilution violations mentioned above, which 

have nothing to do with the function of the office being 

voted on, could occur. The importance of the policy



- 46a -

embodied in section 2 compels me to say that these limits 

must be placed on what we write so that future courts will 

not cut short the intended reach of section 2. In my view, 

the majority view should be limited to the facts before us.

With the reservations expressed, I respectfully concur in 

reversing the judgment appealed from.



- 47a -

HIGGINBOTHAM, Circuit Judge, with whom, POLITZ, 

KING and DAVIS, join, concurring in the judgment.* 

JOHNSON, Circuit Judge, concurs in Part 1. WIENER, 

Circuit Judge, concurs in Part 2.

This is a voting rights suit challenging the election of 

district judges on a county-wide basis in Texas. The suit 

was filed in a United States District Court by the League of 

United Latin American Citizens against the Attorney General 

of Texas, the Secretary of State, and other state officials, 

seeking a declaratory judgment that the at-large election of 

state district judges in nine targeted counties is illegal under 

Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, and 

violative of the fourteenth and fifteenth amendments of the

’ When this case was orally argued before and considered by the 
court, Judge Reavley was in active service. He participated in both the 
oral argument and the en banc conference. He took senior status, 
however, on August 1, 1990. Based on his understanding of the 
Supreme Court decision in United States v. American-Foreign Steams ip 
Corp., 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1490 (1960), he 
considers himself ineligible to participate in the decision of this case, but 
he adheres to the views in this opinion. See Sawyer v. Butler, 881 F.2d 
1273 (5th cir. 1989) and Court Policy 21.C.



- 48a -

United States Constitution. Plaintiffs requested the district 

court to enjoin further elections and to impose a districting 

scheme that included single-member districts. Texas has 254 

counties, but the suit attacked only Harris, Dallas, Tarrant, 

Bexar, Travis, Jefferson, Lubbock, Ector, and Midland 

Counties2 These nine counties have more than one district 

judge elected county-wide, and elected 172 of the state’s 390 

district judges. As we will explain, the suit targets Texas 

law requiring election of a state district judge from a district 

no smaller than the county, the geographical area of its 

jurisdiction.

After a bench trial, the district court found violations of 

the Voting Rights Act in each of the nine counties, but 

rejected the constitutional arguments, finding that plaintiffs 

had failed to prove that the electoral system was instituted or 

maintained with discriminatory intent. On January 2, 1990,

2 Ten counties actually are targeted. The challenged 72nd Judicial 
District encompasses two counties, Lubbock and Crosby. We will refer 
to the nine targeted Judicial Districts as nine counties.



49a -

the district court enjoined defendants from:

Calling, holding, supervising and certifying elections for 
state district judges in Harris, Dallas, Tarrant, Bexar, 
Travis, Jefferson, Lubbock, Hector and Midland 
Counties under the current at-large system with an order 
for interim relief.

The district court divided the nine counties into electoral 

subdistricts, tracing the districts of state representatives and 

the precinct lines of County Commissioners or Justices of the 

Peace. The district court’s order affected 115 of the 172 

district courts. The district court also ordered a non-partisan 

election for May 5, 1990, with any run-off to be held on 

June 2, 1990. We stayed the district court’s order pending 

this appeal.

Defendants first argue that the Voting Rights Act as 

amended in 1982 has no application to the election of judges. 

This argument rests on the assertion that the use by Congress 

of the word "representatives" in Section 2(b), added by 

amendment in 1982 and popularly known as the Dole 

compromise, unambiguously excluded elected judges because



- 50a -

elected judges are not representatives. This argument in its 

broadest form-Section 2 of the Act has no application to any 

judicial elections—was rejected by this court in Chisom v. 

Edwards, 839 F.2d 1056 (5th Cir.), cert, denied sub nom. 

Roemer v. Chisom, 109 S.Ct. 390 (1988). The panel 

opinion was unanimous. The petition for rehearing en banc 

was denied without a single member of the court requesting 

a poll. Relatedly, but with less sweep, defendants argue 

that Section 2(b) has no application to state district judges 

because such judges do their judging singly and not as part 

of a collegial body. Finally, defendants attack the findings 

below as well as the ordered remedy. In addition to quarrels 

with the sufficiency of proof that the votes of minorities 

were diluted, defendants argue that the findings are flawed 

by the erroneous legal conclusion that the contribution of 

partisan voting to election outcomes is not relevant.
v

We are unpersuaded that Chisom’s decision regarding 

the election of appellate judges was incorrect, but are



- 51a -

persuaded that Section 2(b) will not support this attack upon 

the county wide election of trial judges. Because we would 

decide the case on this ground we do not reach defendants’ 

other contentions.

I.

A.

We are pointed to no evidence of how the Framers’ 

viewed elected judges. This is not surprising; judges were 

not elected at the time the Constitution was written and 

ratified. The thirteen original states employed various 

methods of judicial selection, seven using appointment by the 

legislature, five by governor and council, and one by 

governor and legislature. See Winters, Selection o f Judges- 

-an Historical Introduction, 44 Tex. L. Rev. 1081, 1082 

(1966). Electing judges was a Jacksonian reform aimed at 

making judicial selection more democratic:

Popular sovereignty and popular control of public 
affairs through the elective system were hallmarks of the 
Jacksonian era, and, not surprisingly, the movement for 
popular election of judges dates from this period.



- 52a -

Dissatisfaction with the judiciary was widespread among 
Jacksonians. It arose from several factors including a 
general disaffection with the legal profession, abuses in 
the judicial appointment systems, and a feeling, carried 
over from the Jeffersonian period, that the courts were 
basically undemocratic. Consequently, the abolition of 
tenure during good behavior and the adoption of the 
elective system were advocated as reform measures and 
were hailed as in accord with the egalitarian spirit of the 
times.

Note, The Equal Population Principle: Does It Apply to 

Elected Judges?, 47 Notre Dame L. Rev. 316, 317 (1971).

The first judicial elections took place as early as 1812 

for Georgia lower court judges, Ga. Const, art. Ill, § 4 

(1812), and in 1832 Mississippi adopted a completely 

elective judiciary. Miss. Const, art. IV, §§ 2, 11, 16 

(1832). When it joined the Union, Texas ironically became 

the first new state to adopt the federal method of selecting 

judges, by executive appointment with confirmation by the 

state senate. Id.; Tex. Const, art. IV., Section 5 (1845). 

The wholesale change from appointed to elected judges can 

be marked by New York’s adoption of judicial elections in 

1846. N.Y. Const, art. VI, §§ 2, 4, 12, 14 (1846). All



- 53a -

new states entering the union after that date, until the 

entrance of Alaska in 1958, used elections as their method 

of judicial selection, and Georgia, Maryland, Virginia, and 

Pennsylvania switched from appointment to election. 

Winters, Selection o f Judges, 44 Tex. L. Rev. at 1082. In 

short, it is fair to conclude that electing judges was viewed 

as being more democratic and as a way of ensuring that 

judges remained sensitive to the concerns of the people.

It is vigorously argued that Section 2 of the Voting 

Rights Act has no application to judicial elections because 

judges are not representatives. The argument in its strongest 

form is that the word "representatives," found in Section 

2(b), unambiguously excludes judges because judges have no 

constituents. The argument continues that there is no 

occasion for exploring legislative history because the inquiry 

ends with the plain words of the statute. While drawing the 

language of Section 2(b) from White v. Regester, 412 U.S. 

755 (1973) Congress substituted the word "representatives"



- 54a -

for "legislators," at the least to insure it reached elected 

executive officials. This much defendants do not deny. 

Rather, they argue that although "representatives" may 

encompass executive officials, Congress intended that the 

term not encompass judges.

To be unambiguously inapplicable to judges, the word 

"representatives" must be certain of only one relevant 

meaning and that meaning must exclude judges. Defendants 

must concede, however, that at one level of generality judges 

are representatives. The history of electing judges and the 

political impulses behind that choice are powerful evidence 

of considered decisions to keep judges sensitive to the 

concerns of the people and responsive to their changing will. 

This reality belies the bold assertion that judges are in no 

sense representatives. The assertion that judges are not 

representatives actually masks a concern that judges should 

not be representatives. This is a choice left to the states, 

and Texas has chosen to elect judges convinced that direct



- 55a -

accountability insures that judges represent the people in 

their judicial tasks.

Judges are oath bound to obey the law and to make 

decisions in an impartial manner but that does not mean that 

they are in no practical sense representatives of the people. 

Yet, executive officials, who are considered representatives, 

are bound by the same oath. While judges are indeed far 

removed from the logrolling give and take of the legislative 

and even executive processes, the effort to assure 

"sensitivity" and "accountability" through elections is no 

more than an insistence that the judges represent the people 

in their task of deciding cases and expounding the law. State 

judges, wearing their common law hats, face decisions such 

as whether to adopt a comparative fault standard, and in 

doing so represent the people in a very real sense. At least 

at this level of generality judges are indisputably 

representatives of voters. Saying so in no way steps on the 

equally indisputable difference between judges and other



- 56a -

representatives-that judges do not represent a specific 

constituency.

It is true that judges do not carry the views of a certain 

group of people into a larger governmental body, attempting 

to sway that body toward decisions favorable to their 

constituency.3 That is not the necessary role of a 

representative. We extol the virtues of the jury in criminal 

cases—the jury is said to be the representatives of the people. 

Both judicial opinions and academic writings describe 

members of juries as representatives. See Spaziano v. 

Florida, 104 S.Ct. 3154, 3176 (1984); Gillers, Deciding 

Who Dies, 129 U. Pa. L. Rev. 1, 63-65 (1980); H. Kalven 

& H. Zeisel, The American Jury 436 (1966). The examples 

can be multiplied, but the point is plain. The conclusion that 

the word "representative" has the singular meaning of 

legislator is nothing more than an effort to substitute judicial 

will for that of Congress. It is an undisguised effort by

3 The same may be said for county surveyors, treasurers, court clerks 
and a myriad of office holders.



- 57a -

judges to claim for judges an exemption from the Voting 

Rights Act. This exercise of raw judicial power claims for 

federal courts, power belonging to Congress and to the 

states. Texas has decided to elect its judges and Congress 

has decided to protect the rights of voters in those elections.4

In sum, we cannot determine whether Section 2(b) of 

the Voting Rights Act applies to judicial elections by looking 

only to the word "representative." Rather, we must look to 

the context in which the word is used and legislative history, 

cautious as we must be over that enterprise. Exploration of 

this context requires that we determine whether in using the 

word representative in the 1982 amendments, Congress 

intended to withdraw the Act’s existing coverage of judicial 

elections. That is, the freight the majority’s use of 

representative must bear becomes enormous if, before the

4 It is argued that, whether or not the unamended Section 2 reached 
judicial elections is irrelevant, because Section 2(b) represents not just an 
amendment to but a fundamental shift in the operation of the Act. As 
such, the amended Section 2 should not be read to reach judicial elections 
unless Congress explicitly so provided. See Atascadero State Hospital v. 
Scanlon, 473 U.S. 234, 105 S.Ct. 3142 (1985). We refute this argument 
in the text below.



- 58a -

1982 amendments, the Voting Rights Act reached judicial 

elections.5

We therefore turn first to whether the Voting Rights Act 

covered judicial elections before 1982. We consider the 

1982 amendments to the Act and review the legislative 

history of the amendments. We then turn to the question 

whether Congress was required to mention specifically the 

election of judges in the statute. The resolution of this 

question is informed by application of settled principles of 

federalism; we determine that the election of judges has no 

claim to the protections of federalism not shared by other 

institutions of state government. We next reject the 

argument that because the one-person, one-vote principle is 

inapplicable to the judiciary, racial vote-dilution claims under 

Section 2 must be inapplicable as well. Finally, we look at

s It is argued that, whether or not the unamended Section 2 reached 
judicial elections is irrelevant, because Section 2(b) represents not just an 
amendment to but a fundamental shift in the operation of the Act. As 
such, the amdned Section 2 should not be read to reach judicial elections 
unless Congress explicitly so provided. See Atascadero State Hospital 
v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142 (1985). We refute this 
argument in the text below.



- 59a -

the interplay of Sections 2 and 5 to determine whether 

differences between the two sections preclude the application 

of Section 2 to judicial elections despite Section 5’s coverage 

of those same elections, and conclude that they do not.

B.

Section 2, before the 1982 amendments, provided as follows:

§ 1973. Denial or abridgement of right to vote on 
account of race or color through voting 
qualifications or prerequisites.

No voting qualification or prerequisite to voting, 
or standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision to deny or 
abridge the right of any citizen of the United States to 
vote on account of race or color, or in contravention of 
the guarantees set forth in section 1973b(f)(2) of this 
title.

42 U.S.C. § 1973 (1975).

Section 2 by its express terms reached state judicial 

elections. "Vote" or "voting" was defined as including "all 

action necessary to make a vote effective in any primary, 

special or general election . . . with respect to candidates 

for public or party office and propositions for which votes



- 60a -

are received in an election." 42 U.S.C. § 19732(c)(1). 

There was no mention of judges or the judiciary. There also 

was no mention of any other specific office. Judges are 

"candidates for public or party office" elected in a "primary, 

special, or general election." Congress intended to reach all 

types of elections, rather than to pick and choose. Indeed, 

even votes on propositions are within the purview of the Act. 

Section 14(c)(1), 42 U.S.C. § 19732(c)(1).

Defendants argue that the Act is silent as to judges, so 

it must be construed as not including judicial elections. 

They argue that, while judges in Texas are "candidates for 

public office," it is uncertain whether Congress, by 

providing a broad definition of "vote," also intended to 

create a private remedial cause of action of similar scope in 

Section 2. Congress expressly defined the term "vote" or 

"voting," however, and nothing suggests that Congress did 

not intend that definition to apply throughout the Act, 

including Section 2.



- 61a -

Congress intended that its 1965 Act provide protection 

coextensive with the Constitution. Justice Stewart reiterated 

this in Mobile v. Bolden:

[I]t is apparent that the language of section 2 no more 
than elaborates upon that of the Fifteenth Amendment, 
and the sparse legislative history of section 2 makes 
clear that it was intended to have an effect no different 
from that of the Fifteenth Amendment itself . . . .

446 U.S. 55, 60-61 (1980). We reject the implicit

suggestion that the protections of the Fifteenth Amendment

do not extend to minorities whose right to vote in judicial

elections is abridged. The Fifteenth Amendment applies to

all elections, and Congress intended the Voting Rights Act

of 1965 to apply to all elections.

By its terms the 1965 Act included judicial elections.

Under defendants’ argument then the word representative in

Section 2(b) must bear the burden of being the sole means

by which Congress in the 1982 amendments exempted

judicial elections from the Act’s coverage. The record is

barren of any hint that Congress’s effort in 1982 to expand



- 62a -

the Voting Rights Act carried a sub rosa withdrawal of 

coverage for state judicial elections.

C.

Congress amended Section 2 in 1982 in partial response 

to the Supreme Court’s decision in City o f Mobile v. Bolden, 

446 U.S. 55 (1980). Thornburgh v. Gingles, 478 U.S. 30, 

106 S.Ct. 2752, 2758 (1986). Bolden held that in order to 

establish a violation under Section 2 of the Act a plaintiff 

must prove purposeful racial discrimination. Bolden, 446 

U.S. at 66. Congress incorporated a "results test" into 

Section 2(a) to diminish the burden of proof necessary to 

prove a violation. Congress also added Section 2(b), which 

codified the legal standards enunciated in White v. Regester, 

412 U.S. 755 (1973).3

5 In White v. Regester the Supreme Court interpreted the 
requirements of the Voting Rights Act and the U.S. Constitution with 
respect to claims of vote dilution:

The plaintiffs’ burden is to 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 political processes and to elect legislators of 
their choice.



- 63a -

As amended in 1982, Section 2 now provides:

(a) No voting qualification or prerequisite to 
voting or standard, practice, or procedure shall be 
imposed or applied by any State or political subdivision 
in a manner which results in a denial or abridgement of 
the right of any citizen of the United States to vote on 
account of race or color, or in contravention of the 
guarantees set forth in section 1973b(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 circumstances, 
it is shown that the political processes leading 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 subsection 
(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 circumstance 
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.

42 U.S.C. § 1973 (1982).

The plain language of Section 2(a) reaches judicial 

elections, using the same broad language as the 1965 Act,

412 U.S. at 766.



- 64a -

referring generally to "voting" and "vote," the definitions of 

which continued unchanged under the 1982 amendments. 

The legislative history of the 1982 amendments does not 

indicate that the terms "vote" or "voting" do not include 

judicial elections, or that "candidates for public office" does 

not include judges. While retaining the identical statutory 

reach, Congress added the word "results" as the measure of 

violation. The word representative does not appear in 

subsection (a).

Section 2(b) is a new section added in the 1982 

amendments. Section 2(a) refers to "denial or abridgement 

of the right . . .  to vote on account of race or color . . ., as 

provided in subsection (b) of this section." Section 2(a) 

anticipates that subsection (b) will define how a violation of 

subsection (a) can be established. Other than the previously 

discussed vague use of the word "representative," there is no 

reason to suppose that subsection (b), defining a type of 

proof sufficient under Section 2, was meant to withdraw all



- 65a -

coverage from judicial elections. Before we turn to the 

legislative history of the 1982 amendments for evidence of 

intent to exclude judicial elections from coverage, we pause 

to emphasize that the exercise is itself not necessary. A 

straightforward reading of both Section 2(a) and 2(b) leaves 

little doubt but that 2(a)’s broad reach was never intended to 

be limited by use of the word representative in the 

explanation in Section 2(b) of how a violation might be 

shown.

Congress used the word "candidates" interchangeably 

with "representatives" in the legislative history. There was 

no indication that "representatives" was intended to have a 

limited meaning, applying only to legislative and executive 

officials, but not to elected members of the judiciary. Even 

Senator Dole, who proposed the language of compromise in 

Section 2, stated:

Citizens of all races are entitled to have an equal chance 
of electing candidates of their choice, but if they are 
fairly afforded that opportunity, and lose, the law should 
offer no redress.



- 66a -

S. Rep. No. 417, 97th Cong., 2d Sess. 193 (Additional

Views of Senator Robert Dole), reprinted in 1982 U.S. Code

Cong. & Admin. News 177, 364 (emphasis added), and

[T]he standard is whether the political processes are 
equally "open" in that members of a protected class 
have the same opportunity as others to participate in the 
political process and to elect candidates of their choice.

Id. (emphasis added).

In the one place where the judiciary is specifically 

mentioned in the legislative history of the 1982 amendments, 

the report of the subcommittee on the Constitution states that 

the term "’political subdivision’ encompasses all 

governmental units, including city and county councils, 

school boards, judicial districts, utility districts, as well as 

state legislatures." Report of the Subcommittee on the 

Constitution of the Committee of the Judiciary, S. Rep. 417, 

97th Cong., 2d Sess., reprinted in 1982 U.S. Code Cong. & 

Admin. News 177, 323 (emphasis added). Of course, a 

brief statement in a subcommittee report opposing the 

amendments is not much. Nonetheless, the proponents of



- 67a

the changes to the Act did not contest this description, 

although they would have had incentive to do so to alleviate 

any fears of such extended coverage if such a broad scope of 

applicability were not intended.

The Senate and House hearings regarding the 1982 

amendments contain various references to judicial elections, 

primarily in the context of statistics presented to Congress 

indicating the progress made by minorities under the Act up 

to that date. The charts indicated when minorities were 

elected to office, and included judicial election results. See 

Extension of the Voting Rights Act: Hearings on H.R.

1407, H.R. 1731, H.R. 3112, H.R. 3198, H.R. 3473 and 

H.R. 3498 Before the Subcomm. on Civil and Constitutional 

Rights of the House Comm, on the Judiciary, 97th Cong. 1st 

Sess. 38, 193, 239, 280, 502, 574, 804, 937, 1182, 1188, 

1515, 1528, 1535, 1745, 1839, 2647 (1981); Voting Rights 

Act: Hearings on S. 53, S. 1761, S. 1975, S. 1992, and 

H.R. 3112 Before the Subcomm. on the Constitution of the



- 68a -

Senate Comm, on the Judiciary, 97th Cong. 2d Sess. 669, 

748, 788-89 (1982).

To summarize, the relevant legislative history 

concerning the 1982 amendments suggests that Section 2(b) 

was intended to reach all elections, including judicial 

elections. There is no hint that Congress intended to 

withdraw coverage.

But, it is argued, even if other aspects of Voting Rights 

law do apply to judicial elections, nonetheless, vote-dilution 

claims should not, because these claims are a new and 

fundamentally different ground for relief under amended 

Section 2 and because anti-dilution remedies are particularly 

intrusive on the judiciary. Therefore, the argument 

continues, had Congress intended the Act to apply to judicial 

elections, it should have said so explicitly, which it did not. 

We reject this argument that Congress singled out both 

judicial elections and dilution claims for distinct treatment. 

In plain language it argues that Congress affirmatively turned



- 69a -

its head away from the dilution of minority votes in judicial 

elections.

The first flaw in this argument is that vote-dilution 

claims were not newly authorized by amended Section 2. 

There were many vote dilution cases before 1982. The 

statutory prohibition of vote dilution by the Voting Rights 

Act is as old as the Act itself. It was first raised as early as 

1965, the year of the Act’s inception, when the Supreme 

Court observed

It might well be that, designedly or otherwise, a multi­
member constituency apportionment scheme, under the 
circumstances of a particular case, would operate to 
minimize or cancel out the voting strength of racial or 
political elements of the voting population. When this 
is demonstrated it will be time enough to consider 
whether the system still passes constitutional muster.

Fortson v, Dorsey, 379 U.S. 433, 439 (1965). Vote-

dilution claims were considered in Bums v. Richardson, 384

U.S. 73 (1966), and Whitcomb v. Chavis, 403 U.S. 124

(1972), where the plaintiffs were unsuccessful, and in White

v. Regester, 412 U.S. 755 (1973), and Zimmer v.



- 70a -

McKeithen, 485 F.2d 1297 (5th Cir. 1973)(en banc), a ff d 

sub nom. East Carroll. Parish School Board v. Marshall, 

424 U.S. 636 (1976), where the plaintiffs prevailed. These 

cases were decided under the results test. Finally Mobile v. 

Bolden, 446 U.S. 55 (1980), where the Supreme Court 

articulated the intent standard, was a dilution case. The 

1965 Act, therefore, was considered to prohibit vote dilution 

as well as more straightforward denials of the right to vote. 

By its terms the act covered judicial elections. The 1982 

amendments simply made it clear that results and not intent 

were the basis for finding a violation. However difficult in 

application the results test may have proved to be, the 

amendments to Section 2 did not themselves create a vote- 

dilution claim. To the contrary, the dilution of the voting 

strength of minorities was the accepted premise of the 

debate. Indeed Zimmer v. McKeithen, 485 F.2d 1297 (5th 

Cir. 1973) (en banc), the source of the "senate factors" that 

became part of the congressionally required inquiry, was a



- 71a -

dilution case.

Much of the legislative history of the 1982 amendments 

indicates that Congress intended to return to pre-Bolden 

standards, and was not otherwise reaching for a new and 

more intrusive private cause of action. As we will explain, 

at least Senator Hatch feared the language of the 1982 

amendment would be much more intrusive, expressing 

concern that its uncertainty would lead to proportional 

representation. His fear was fueled by the restoration of the 

results test, however, not dilution theory, which had been 

part of the voting rights law for at least seventeen years.

The principal focus of the House debates centered on 

Section 5, but the Senate debates were centered on the 

meaning of the Section 2 amendments. Nonetheless, there 

was some discussion in the House, and at least some 

witnesses argued that "the amended Section 2 . . . would 

restore to black Southerners the right to challenge alleged 

discriminatory election schemes which were developing



- 72a -

before Mobile, [and that] notwithstanding the Court’s claim 

to the contrary in Mobile, the intent test first became a 

constitutional standard in 1976 with Washington v. Davis, an 

employment case." Boyd & Markman, The 1982 

Amendments to the Voting Rights Act: A Legislative

History, 40 Wash. & Lee L. Rev. 1347, 1366 (citing 

comments by James Blacksher and David Walbert). 

Congressman Sensenbrenner argued that the Rodino 

amendment to Section 2 was necessary in order to clarify 

the standard of proof required in order to establish violations 

of the Act. 127 Cong. Rec. H6850 (daily ed. Oct, 1981) at 

H6983.

In the Senate Report on the Amendments the purpose of 

the bill was stated as

designed to make clear that proof of discriminatory 
intent is not required to establish a violation of Section
2. It thereby restores the legal standards based upon 
the controlling Supreme Court precedents, which applied 
in voting discrimination claims prior to the litigation 
involved in Mobile v. Bolden. The amendment also 
adds a new subsection to Section 2 which delineates the 
legal standards under the results test by codifying the



- 73a -

leading pre-Bolden vote dilution case, White v. Regester.

S. Rep. 417, 97th Cong., 2d Sess., reprinted in 1982 U.S.

Code Cong. & Admin. News at 179 (emphasis added).

Senator Hatch opposed the change, arguing that it

"would redefine the concept of ’discrimination5 and would

’transform the Fifteenth Amendment and the Voting Rights

Act from provisions designed to ensure equal access and

equal opportunity in the electoral process to those designed

to ensure equal outcome and equal success.’" Boyd, Voting

Rights Act Amendments, 40 Wash. & Lee L. Rev. at 1389

(quoting Hearings on the Voting Rights Act Before the

Senate Subcommittee on the Constitution of the Committee

on the Judiciary, 97th Cong., 2d Sess. 3 (1982)). But,

Senator Mathias, a proponent of the bill, argued

The House amendment is needed to clarify the burden 
of proof in voting discrimination cases and to remove 
the uncertainty caused by the failure of the Supreme 
Court to articulate a clear standard in the City of Mobile 
v. Bolden. . . . We are not trying to overrule the 
Court. The Court seems to be in some error about what 
the legislative intent was . . . .  Prior to Bolden , a 
violation in voting discrimination cases [could] be shown



- 74a -

by reference to a variety of factors that, when taken 
together, added up to a finding of illegal discrimination. 
But in Bolden, the plurality appears to have abandoned 
this totality of circumstances approach and to have 
replaced it with a requirement of specific evidence of 
intent . . . this is a requirement of a smoking gun, and 
I think it becomes a crippling blow to the overall 
effectiveness of the Act.

Hearings on the Voting Rights Act Before the Senate 

Subcommittee on the Constitution of the Committee on the 

Judiciary, 97th Cong., 2d Sess. 3, 199 (1982).

Senator Hatch persisted that the results test represented 

a new test, but supporters of the bill took issue with this 

view. Laughlin McDonald of the ACLU argued that "[p]rior 

to Mobile, it was understood by lawyers trying these cases 

and by the judges who were hearing them that a violation of 

voting rights could be made out upon proof of a bad purpose 

or effect . . . Mobile had a dramatic effect on our cases." 

Id. at 369. Defenders of the amendment assumed that the 

results test represented a restatement of the law prior to 

Bolden.

Critics of the results test argued that even if the lower



- 75a -

federal courts had adopted a results test in their pre-Bolden 

interpretation of Section 2, the original intent of Congress 

had been the establishment of a test in Section 2 using the 

traditional standard of intent or purpose. Boyd. Voting 

Rights Act Amendments, 40 Wash. & Lee L. Rev. at 1405 

(citing Appendix to Additional Views by Senator Hatch, S. 

Rep. NO. 417, 97th Cong., 2d Sess. 36 (1982)). 

Proponents responded by arguing that there was no evidence 

that Congress meant an intent test to apply. The Senate 

Report of the Committee on the Judiciary adopted this view, 

citing Attorney General Katzenbach’s testimony during the 

hearings on the Voting Rights Act of 1965 to the effect that 

"Section 2 would ban ’any kind of practice . . .  if its 

purpose or effect was to deny or abridge the right to vote on 

account of race or color." S. Rep. 417, 97th Cong., 2d 

Sess., reprinted in 1982 U.S. Code Cong. & Admin. News 

at 194 (citing Hearings on S. 1564 before the Committee on 

the Judiciary, 89th Cong., 1st Sess., 191 (1965)).



- 76a -

This legislative history generally indicates an intent to 

retain pre-Bolden standards rather than create a more 

intrusive new cause of action.6 We have insisted in other 

contexts that Congress clearly state its intent to supplant 

traditional state prerogatives. Judicial insistence upon clear 

statement is an important interpretative tool vindicating 

concern for separation of powers and federalism. See 

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105

S.Ct. 3142 (1985); Pennhurst State School and Hospital v. 

Halderman, 465 U.S. 89, 104 S.Ct. 900 (1984) (Pennhurst 

II). This insistence upon "an unequivocal expression of 

congressional intent," Pennhurst II, 465 U.S. at 99, 104 

S.Ct. at 907, is based upon the fundamental nature of the 

interests at stake, Atascadero, 105 S.Ct. at 3147 ("The 

‘constitutionally mandated balance of power’ between the

6 Of course, when the 1982 amendments are considered in light of 
the Supreme Court’s interpretation in Gingles, we cannot conclude that 
the 1982 amendments to Section 2 worked no changes from the pre- 
Bolden interpretation of the Act. But this is what it became, not 
necessarily what it was when voted upon.



- 77a -

states and the Federal Government was adopted by the 

Framers to ensure the protection of ’our fundamental 

liberties.’") (quoting Garcia v. San Antonio Metropolitan 

Transport Authority, 469 U.S. 528, 572, 105 S.Ct. 1005, 

1028 (Powell, J., dissenting)). These mighty principles do 

not carry us very far here. Congress has clearly expressed 

the Act’s application to the states, and has clearly expressed 

its intent that violations of the Act be determined by a results 

test rather than an intent standard. By these actions, the 

Act, with all of its intrusive effect, has been made to apply 

to the states. Significantly, the "results tests" did apply to 

all elections including judicial elections until the 1980 

decision of Mobile v. Bolden, supra. Thus, intrusive as it 

is, the Act, including the anti-dilution provisions, applied to 

judges before the 1982 amendment. The suggestion that 

anti-dilution and results tests were introduced by the 1982 

amendments is wrong.

The majority’s argument is by necessity a demand for



- 78a -

the exemption of judicial elections from the Act as a whole. 

We cannot recognize this broad exemption.7 Section 5, 

commonly seen as the most far reaching of the Voting Act 

provisions, see South Carolina v. Katzenbach, 383 U.S. 301, 

358-62 (1966) (Black, J., dissenting), has allowed no escape 

for elected state judiciaries. Haith v. Martin, 618 F. Supp. 

410 (E.D.N.C. 1985), affd  mem., 477 U.S. 901, 106 S.Ct.

7 Congress dispensed with proof of purposeful violation for any 
voting qualifications or prerequisites to voting or standard, practice or 
procedure "which results in a denial or abridgement. . . . ” It did so by 
using the word results in both 2(a) and 2(b). The word representative, 
so critical to defendants’ argument, does not appear in the broad 
prohibition of Section 2(a). The Senate Report explained that the results 
test apply to a variety of violations.

For example, a violation could be proved by showing that the 
election officials made absentee ballots available to white citizens 
without a corresponding opportunity being given to minority 
citizens. See Brown v. Post, 279 F. Supp. 60, 63-64 (W.D. La. 
1968). Likewise, purging of voters could produce a discriminatory 
result if fair procedures were not followed. Toney v. White, 488 
F.2d 310 (5th Cir. 1973), or if the need for a purge were not 
shown or if opporunities for re-registration were unduly limited. 
Administration of an election could likewise have a discriminatory 
result if, for example, the information provided to voters 
substantially misled them in a discriminatory way. United States 
v. Post, 297 F. Supp. 46, 50-51 (W.D. La. 1969), 412 U.S. at 
769-770.

S. Rep. 97-417 n. 119 p. 208.

We decline to say that Congress intended to exempt state judicial 
elections from statutory regulation of these practices.



- 79a -

3268 (1986). As an inferior court we are bound by the 

holding of the Supreme Court that judicial elections are 

covered by Section 5 of the Act, a result explicitly urged by 

then Solicitor General Charles Fried and by then head of the 

Civil Rights Division, Assistant Attorney General William 

Bradford Reynolds. The same officials argued in Chisom 

that amended Section 2 of the Act is equally applicable, as 

does the present administration.

D.

Finally, it is argued that an elected state judiciary is 

somehow free of the anti-dilution prohibitions of the Voting 

Rights Act but remains subject to its other strictures. The 

argument has two premises: First, because the pre-Bolden 

anti-dilution cases did not involve judicial elections, Section 

2’s prohibition against vote dilution does not extend to 

judicial elections; second, because the one-person, one-vote 

principle has been held not to apply to judicial elections, 

vote-dilution claims under Section 2 do not apply either.



- 80a -

The first premise is obviously flawed. Nothing in the 

pre-Bolden cases suggests that the prohibition against vote 

dilution does not apply to judicial elections. That those 

cases involved elections of officials other than judges was 

happenstance; cases involving judicial elections simply had 

not yet come up. Furthermore, the statutory language 

cannot be parsed to read that judicial elections are not 

subject to dilution claims, but are subject to the remaining 

strictures of Section 2. This is so even if representative is 

found to mean elected members of the legislative and 

executive branches but not the judicial branches of state 

government. Further, concluding that Section 2 does not 

apply would create the anomaly that Section 5, conceded to 

reach elected judges, and Section 2 use identical language to 

define their reach. Section 2 either applies in its entirety or 

not at all and defendants’ efforts to soften the full force of 

their extraordinary contention must fail.

The second premise-that because the one-person, one



- 81a -

vote principle does not apply to judicial elections, the vote- 

dilution prohibition does not either—must also fail. The 

prohibition of geographical discrimination in voting 

expressed in Baker v. Carr, 369 U.S. 186 (1962) and 

Reynolds v. Sims, 377 U.S. 533 (1964), commonly referred 

to as the one-person, one-vote principle, was held not to 

apply to the apportionment of state judiciaries in Wells v. 

Edwards, 347 F. Supp. 453 (N.D. La. 1972) (3-judge 

court), aff’d mem., 409 U.S. 1095 (1973) (three justices, 

dissenting). It is argued that vote dilution principles cannot 

be applied to an elected judiciary because the one-man, one- 

vote principle does not apply, and without requiring equal 

apportionment there is no benchmark for concluding that 

there is vote dilution. This argument rests upon the equating 

of racial and non-racial acts by the state that deny voting 

strength. Yet they measure equality on quite different 

planes. One is facially neutral in the matter of race; indeed 

compliance may adversely affect black voting power. The



- 82a -

other rests on core concerns of the Civil War amendments- 

-submerging of minority voting strength by the combined 

force of election methods and bigotry. In the more concrete 

terms of this case, that the state has chosen to allot thirty- 

some judges to Dallas County and only one to another 

county is not relevant. Submerging votes of protected 

minorities by a cohesive white majority is relevant.

It is perverse now to reason that because the elections 

of state judges are free of the Reynolds’ command of 

numerical equality, an elected judiciary is a fortiori free 

from the racial equality commands of the Civil War 

Amendments and the Voting Rights Act. It is perverse 

because even the defenders of the "political thicket" doctrine 

at all times maintained that the courts must hold to the core 

values of the Civil War Amendments. For example, Justice 

Frankfurter, in his famous dissent to the Court’s entry into 

the political thicket in Baker v. Carr admitted, joined by 

Justice Harlan, that "explicit and clear constitutional



- 83a -

imperatives guided judicial intervention in state government 

on the issue of black disenfranchisement." Baker v. Carr, 

369 U.S. 186, 285-86 (1962) (Frankfurter, J., dissenting).

The courts have struggled to develop a measure of 

dilution stemming from the combination of racial voting 

patterns and state election practices. Gingles itself was the 

first detailing of that enterprise by the Supreme Court. At 

earlier times, various justices have referred to our efforts to 

do so in Zimmer v. McKeithen as amorphous. But, this 

difficulty has nothing to do with the inapplicability of the 

command of numerical equality, nor is its difficulty peculiar 

to judicial elections. We remind that the effort in this case 

to measure the submerging of black and Hispanic voting 

power begins with a system that is numerically perfect- 

county-wide elections.

We are pointed to several lower court opinions stating



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that judges are not "representative."8 These cases held that 

the prohibition against geographical discrimination does not 

reach judicial elections. The argument is that because many 

of these courts held that judges are not "representatives," 

Congress must have meant a similar exclusion in its use of 

the word. We disagree. Words come to their full meaning 

in context. This argument of incorporated definition is 

unsupported by a trace of legislative history and is no more

8 See, e.g., Concerned Citizens o f Southern Ohio, Inc. v. Pine Creek 
Conservancy Dist., 473 F. Supp. 334 (S.D. Ohio 1977); The Ripon 
Society, Inc. v. National Republican Party, 525 F.2d 567 (D.C. D.C. 
1975), cert, denied, 424 U.S. 933 (1976); Fahey v. Darigan, 405 F. 
Supp. 1386 (D.C.R.I. 1975); Gilday v. Board o f Elections o f Hamilton 
County, Ohio, 472 F.2d 214 (6th Cir. 1972); Wells v. Edwards, 347 F. 
Supp. 453 (M.D. La.), affd, 409 U.S. 1095 (1972); Buchanan v. 
Gilligan, 349 F. Supp. 569 (N.D. Ohio 1972); Holshouser v. Scott, 335 
F. Supp. 928 (M.D.N.C. 1971), affd, 409 U.S. 807 (1972); Irish v. 
Democratic-Farmer-Labor Party o f Minnesota, 287 F. Supp. 794 (D.C. 
Mum.), affd, 399 F.2d 119 (8th Cir. 1968). But cf. cases dealing with 
the Voting Rights Act, Southern Christian Leadership Conference of 
Alabama v. Siegelman, 714 F. Supp. 511 (M.D. Ala. 1989); Clark v. 
Edwards, 725 F. Supp. 285 (M.D. La. 1988); Mallory v. Eyrich, 839 
F.2d 275 (6th Cir. 1988); Martin v. Allain, 658 F. Supp. 1183 (S.D. 
Miss. 1987); Lefkovits v. State Board o f Elections, 400 F. Supp. 1005 
(N.D. 111. 1975), affd, 424 U.S. 901 (1976). To the extent that any 
cases from the Sixth Circuit are used to support the proposition that 
Section 2 of the Voting Rights Act does not encompass judicial elections, 
they are no longer good law, for the Sixth Circuit specifically held in 
Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988), that Section 2 of the 
Voting Rights Act applies to judicial elections.



- 85a -

than an assertion. Indeed we showed above that Congress

meant "representative" to include judges for the purposes of

the Voting Rights Act. The Reynolds principle is race

neutral, different, as we observed, from the race-based focus

of the Voting Rights Act. However problematic locating the

principle of one-person, one-vote in the fourteenth

amendment may be, race-based concerns are at its core.

Nothing in policy or logic suggests that declining to extend

the Reynolds principle to judicial elections carries any sway

in freeing judicial elections from race-focused concerns.

Wells was distinguished from cases challenging election

practices in Lefkovits v. State Board o f Elections, 400 F.

Supp. 1005 (N.D. 111. 1975) (3-judge court), affd  mem.,

424 U.S. 901 (1976), where the court stated:

[Wjhen a judge is to be elected or retained, regardless 
of the scheme of apportionment, the equal protection 
clause requires that every qualified elector be given an 
equal opportunity to vote and have his vote counted.

Id. at 1012. This was the precise point made by Solicitor

General Fried in his successful argument to the Supreme



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Court that it should summarily affirm Haith v. Martin.

In Haith the district court held that judicial elections are 

covered by Section 5 and the preclearance requirements of 

the Act. The district court found, using an analysis similar 

to that used by this circuit in Voter Information Project v. 

Baton Rouge, 612 F.2d 208 (5th Cir. 1980), that although 

the one-person, one-vote principle may not apply to judicial 

elections, claims with respect to the Voting Rights Act do 

not deal with numerical apportionment, but with 

discrimination. The court held that "the Act applies to all 

voting without any limitation as to who, or what, is the 

object of the vote." 618 F. Supp. at 413.9 In short, Haith 

rejects the suggestion that inapplicability of the Reynolds 

principle is any barrier to the application of the Voting

9 The changes required to be precleared in Haith had to do with the 
elections of trial judges. The district court did not reach the merits of 
any vote-dilution claims, for it had no jurisdiction to do so. New voting 
practices must be submitted to either the Attorney General or the United 
States District Court for the District of Columbia for preclearance. Other 
district courts only have jurisdiction to decide whether a practice is a 
change requiring preclearance. Consequently, the merits of a vote- 
dilution claim with respect to trial judges was not before the Supreme 
Court.



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Rights Act. We are bound by Haith, and the relevance of 

that bind turns on whether Section 5, dealt with in Haith, 

and Section 2 are coextensive in their application to the 

judicial elections. We turn now to that question.

E.

Defendants have raised no compelling reason to 

distinguish between Section 5 and Section 2 with respect to 

their applicability to judicial elections. To distinguish the 

Sections would lead to the incongruous result that if a 

jurisdiction had a discriminatory voting procedure in place 

with respect to judicial elections it could not be challenged, 

but if the state sought to introduce that very procedure as a 

change from existing procedures, it would be subject to 

Section 5 preclearance and could not be implemented. 

Sections 2 and 5 operate in tandem, with Section 2 

prohibiting the continued use of discriminatory practices, and 

Section 5 preventing the imposition of new discriminatory 

practices to replace those condemned in those areas subject



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to preclearance. Section 5 contains language defining its 

scope that is almost identical to the language in Section 2: 

"any voting qualification or prerequisite to voting, or 

standard, practice, or procedure with respect to 

voting . . .

There are important differences in the two sections, 

however. Section 5 requires preclearance of any new voting 

practices and procedures, and, in determining whether or not 

a new practice is entitled to preclearance, only the effect of 

the new practice is considered. City o f Lockhart v. United- 

States, 460 U.S. 125, 103 S.Ct. 998 (1983); Beer v. United 

States, 425 U.S. 130 (1976). This has been described as a 

retrogression test, with preclearance denied only if the new 

practice has a retrogressive effect, rather than a results test, 

for the effects of the existing system on minorities are not 

considered. Thus in Section 2 the entire scheme of voting 

practices and procedures is considered to see whether it 

results in less than an equal opportunity to participate in the



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political process, whereas under Section 5 only the effects of 

new practices and procedures are considered. Section 2 is, 

therefore, arguably more intrusive than Section 5,10 for 

Section 5 only regulates whether or not changes may be 

implemented, whereas Section 2, if a violation is found, can 

lead to the dismantling of an entire system of voting 

practices that may have been in place for many years. This 

is a distinction between the two sections, but our question 

must be whether the difference means that Section 5 applies 

to judicial elections, but Section 2 does not. There appears 

to be no relevant reason why judicial elections are so 

different from legislative or executive elections that both

Some see Section 5 as being the most intrusive aspect ot 
the Voting Rights Act:

This so-called "preclearance'' requirement is one of the most 
extraordinary remedial provisions in an Act noted for its broad 
remedies. Even the Department of Justice has described it as a 
"substantial departure . . . from ordinary concepts of our federal 
system"; its encroachment on state sovereignty is significant and 
undeniable. The section must, therefore, be read and interpreted 
with care.

United States v. Sheffield Board o f Comm’rs, 435 U.S. 110, 141 (1978) 
(Stevens, J., dissenting) (footnote omitted). See also Katzenbach, 383 
U.S. at 358-62 (Black, J., dissenting).



- 90a -

sections should apply to one and not the other.

The Voting Rights Act plainly covered judicial elections 

before the 1982 amendments. It is equally plain that there 

is little evidence that Congress intended any retrenchment by 

its 1982 amendments. In sum, defendants are left with the 

unconvincing argument that the changes of the 1982 

amendments were fundamental in ways unique to judicial 

elections. Certainly, the Voting Rights Act intrudes heavily 

into state matters but it is no more specifically intrusive in 

judicial elections than in any others. We would hold that 

Section 2 of the Voting Rights Act applies to judicial 

elections.

II.

We now turn to the quarrel with the county-wide 

election of Texas trial judges. The Voting Rights Act does 

not purport to change the choices by a state of the duties and 

means for their discharge it gives to a particular office it 

chooses to create. Rather, the Act accepts these state



- 91a -

creatures but patrols for impermissible vote dilution of 

minority voting power caused by the features of the election 

process in combination with racially molded voting patterns 

in any election of such officials. The statute, however, gives 

no right to choose how the combination will be broken. It 

is important, then, that we keep in mind that the analysis of 

Thornburg v. Gingles is relevant only to an inquiry into 

whether an at-large election impermissibly dilutes minority 

voting strength; it is not a way of assessing every claimed 

vote dilution.

Texas has structure its government such that it wields 

judicial power at the trial level through trial judges acting 

separately, with a coterminous or linked electoral and 

jurisdictional base, each exercising the sum of judicial power 

at that level, and all with review by courts acting collegially. 

We are persuaded that, for purposes of the Voting Rights 

Act, because the fact and appearance of independence and 

fairness are so central to the judicial task, a state may



- 92a -

structure its judicial offices to assure their presence when the 

means chosen are undeniably directly tailored to the 

objective. The choice of means by Texas here—tying 

elective base and jurisdiction—defines the very manner by 

which Texas’ judicial services are delivered at the trial court 

level. These means define the office. Nothing in the Voting 

Rights Act grants federal courts the power to tamper with 

these choices. It requires no narrow reading to conclude that 

the statute does not by its terms purport to do more. Stated 

in traditional fourteenth amendment terms, there is 

compelling necessity sufficient to overcome the strict 

scrutiny of state acts impinging upon a fundamental interest. 

We would not lightly suppose that the Voting Rights Act 

reached further than the Civil Rights Amendments except for 

dispensing with the requirement of purposeful violation.

It follows that inquiry into the Section 2 claims proceeds 

by accepting that trial judges are officials exercising the full 

authority of their positions alone whose full authority has its



- 93a -

source in the electors from a district coterminous with their 

jurisdiction. There can be no dilution of votes for a single 

judge because each judge holds a complete judicial office. 

This feature of the trial judge will alone decide this case but, 

as we will explain, we need not rest only on this proposition. 

Rather, that the trial judges act singly is also integral to the 

linking of jurisdiction and elective base.

A.

The district courts are the primary trial courts in Texas.

Indeed, the constitution of the Republic of Texas provided:

The Republic of Texas shall be divided into convenient 
judicial districts, not less than three, nor more than 
eight. There shall be appointed for each district a 
judge, who shall reside in the same, and hold the courts 
at such times and places as Congress may be law direct.

Guittard, Court Reform, Texas Style, 21 Sw. L.J. 451, 456

(1967). The first state constitution, adopted in 1845,

contained essentially the same provision in article IV, section

6. This provision was amended in 1850 to allow for the

election of district judges by the people, but the subsequent



- 94a -

constitution of 1861 provided that district judges were to be 

appointed. Tex. Const, art. V, § 7, interpretive commentary 

(1876, amended 1985). Texas constitutions adopted since 

1861, including the current constitution, which was adopted 

in 1876, have provided for elected district judges.

All the constitutions have provided that the district 

courts are to be held by district judges chosen from defined 

districts, following the pattern of the Constitution of the 

Republic of Texas. Although in the Constitution of the 

Republic of Texas the number of district courts was limited 

to not more than eight, subsequent constitutions have left the 

number of courts to the legislature. All Texas constitutions, 

including the current one, before it was amended in 1985, 

suggested that each district would be served by only one 

judge. See Tex. Const, art V, § 7 (1876, amended 1985) 

("[fjor each district there shall be elected . . .  a Judge 

. . . ."). A one judge per district system, however, 

presupposes districts of substantially equal population.



- 95a -

Guittard, supra at 456. Thus, with the growth of the 

population in certain counties it became necessary for the 

legislature to make adjustments.

The system challenged in this case was set up according 

to this pattern. See Tex. Gov’t Code §§ 24.001-.954 

(Vernon 1988 & Supp. 1990). With the exception of the 

72nd district, each challenged judicial district in the nine 

targeted counties is coextensive with one county. The 72nd 

district is composed of two counties. Id. § 24.174 (Vernon 

1988). Since 1907 district judges have been elected county­

wide. In 1985, however, a section was added to article V 

of the 1876 Constitution which specifically allows the 

creation of judicial districts smaller than a county. Tex. 

Const, art. V, § 7a(i) (1985). A majority of the voters in 

the county must authorize the division. Id. This power has 

yet to be exercised.11

The only time a district has been drawn smaller than a 
county was when the legislature divided both Dallas and Bexar counties 
into two districts, each district having jurisdiction throughout the whole 
county. The judge for each district was elected by the voters in the



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The district courts in multi-district counties were unified 

for certain administrative purposes in 1939 through the 

passage of the Special Practice Act, which is now, for the 

most part, found in Tex. R. Civ. P. 330 (e)-(i). Guittard, 

supra at 457-58. The relevant parts of the Special Practice 

Act essentially provide that cases can be freely transferred 

between judges and that any judge can work on any part of 

a case including preliminary matters. Also, "[a]ny judgment 

rendered or action taken by any judge in any of said courts 

in the county shall be valid and binding." Tex. R. Civ. P. 

330 (h).

The Administrative Judicial Act, originally passed in 

1927 and subsequently amended on several occasions, 

divides Texas into nine administrative regions, each with a 

presiding judge appointed by the governor with the advice

district in accordance with the constitution’s command, Tex. Const, art. 
V, § 7 (1876, amended 1985), as opposed to being elected by county­
wide vote as now. Thus, we cannot say that there is no precedent for 
dividing counties into geographically distinct districts. We can say that 
the state experimented with 2 of its 25 counties but abandoned the idea 
nearly a century ago. The statutes dividing Bexar and Dallas Counties 
into two districts were repealed in 1895 and 1907, respectively.



- 97a -

and consent of the senate. See Tex. Gov’t Code §§ 74.005, 

.042 (Vernon 1988). The "presiding administrative judge is 

the key administrative officer in the Texas judicial system." 

Guittard, supra at 459. He is empowered to assign judges 

as necessary within his region. Id. §§ 74.052-056 (Vernon 

1988 & Supp. 1990); see also Judicial Administration Rule 

8 (Vernon 1988 & Supp. 1990). He is required to call two 

meetings of all judges in his administrative region each year 

and any other meetings as necessary. Tex. Gov’t Code § 

74.048(a) (Vernon 1988); Judicial Administration Rule 4 

(Vernon 1988 & Supp. 1990). This conference is for 

"consultation and counseling concerning the state of the civil 

and criminal business" and is empowered to promulgate 

administrative rules, rules governing the order of trials and 

county-wide recordkeeping, and other rules deemed 

necessary. Tex. Gov’t Code § 74.048(b)-(c) (Vernon 1988).

The local administrative judge is elected by a majority 

vote of all the judges in the county, including both district



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and statutory judges. Id. § 74.091 (Vernon 1988 & Supp. 

1990). His duties on the county level are similar to those 

of the presiding administrative judge. See id. § 74.092. 

The local administrative judge has the power to assign judges 

within his county. Id. § 74.094. Under the leadership of 

the local administrative judge, the district and statutory 

judges in each county are directed to adopt local rules of 

administration. Id. § 74.093. These rules must provide for, 

among other things, the "assignment, docketing, transfer, 

and hearing of all cases" and "fair and equitable division of 

caseloads." Id. § 74.094(b)); see also Judicial

Administration Rule 9(b) (Vernon 1988 & Supp. 1990). All 

local rules, .of course, must be consistent with state and 

regional rules. Judicial Administration rule 10 (Vernon 

1988). In this regard, the present Chief Justice of Texas 

testified at trial that the only collegial decision-making by 

district judges in a county is in the handling of some

administrative matters.



- 99a -

B.

A distinction was drawn between multi-member and 

single-member structures in Butts v. City o f New York, 779 

F.2d 141 (2d Cir. 1985), cert, denied, 478 U.S. 1021 

(1986). In that case the plaintiffs contested a primary run­

off law, contending that it violated the Equal Protection 

Clause and the Voting Rights Act. The Second Circuit noted 

that one of the ways that a class of citizens may have less 

opportunity to participate is when there are electoral 

arrangements that diminish a class’s opportunity to elect 

representatives in proportion to its numbers. The court 

distinguished, however, between multi-member bodies, 

where at-large elections may produce this result, and 

elections for single-member offices. Butts, 779 F.2d at 148. 

The court found that the Supreme Court had made this 

distinction implicit in City o f Port Arthur v. United States, 

459 U.S. 159 (1982), where the Supreme Court struck down 

a run-off requirement for seats on a multi-member city



- 100a -

council, but did not mention the run-off requirement for 

mayor. The Eleventh Circuit followed Butts in United States 

v. Dallas County, Ala., 850 F.2d 1430 (11th Cir. 1988), in 

holding that "the at-large election of the probate judge is 

permissible under the Voting Rights Act with respect to the 

judicial aspects of that office." Id. at 1432 n .l.

The positions at issue in Butts and Dallas County, and 

the position not considered in Port Arthur, were what can be 

viewed as traditional single member offices, i.e., mayor, city 

council president, single probate judge, or comptroller. 

There was only one of each office in a given geographical 

area, and no problem with overlapping jurisdictions. Here, 

there are many judges with overlapping jurisdictions. 

Nonetheless, each acts alone in wielding judicial power, and 

once cases are assigned there is no overlap in decision­

making.

Indeed there are special courts created within some 

judicial districts that emphasize the single-member nature of



- 101a -

the offices, for not all of the judges handle the same type of 

work. Some are courts of general jurisdiction, but some 

judges are elected specifically to handle juvenile cases, or 

family law cases, or criminal cases. To that extent they are 

separate office, just as county treasurer and sheriff are 

different positions. Of course, many of the judges do handle 

the same type of cases and the cases are assigned to any of 

these judges within a given geographical jurisdiction. There 

are many of them within a geographical area, and the 

plaintiffs would find this dispositive. A United States district 

court in Alabama has held that Alabama trial courts similar 

to the Texas courts are multi-member positions.12 Southern 

Christian Leadership Conf. v. Siegelman, 714 F. Supp. 511

The district court in Clark v. Edwards, 725 F. Supp. 285 
(M.D. La. 1988), also held that the at-large system of electing trial 
judges in Louisiana impermissibly diluted black voting strength, assuming 
that districts with more than one judicial position were multi-member 
districts. In Haith v. Martin, 618 F. Supp. 410 (D.C.N.C. 1985), affd 
mem., 106 S.Ct. 3268 (1986), the district court referred to the superior 
court judges in North Carolina, also trial judges, as "designated seats in 
multi-member districts." Id. at 414. The issue there was not a violation 
of Section 2, however, but whether Section 5 of the Act applied to such 
judicial elections, requiring preclearance of changes.



- 102a -

(M.D. Ala. 1989). The court considered Dallas County and 

Butts, but concluded that

Although neither court expressly defined the term 
"single-member office," it is clear to this court that the 
phrase, as used in those cases, refers to a situation 
where under no circumstances will there ever be more 
than one such position in a particular geographic voting 
area.

Siegelman, 714 F. Supp. at 518.

The Court found that exclusive authority alone does not

define single-member official. Id. We disagree with this

view of multi-member versus single-member office and agree

with the argument made by defendants in Siegelman that

the hallmark of a single member office, as [the Butts 
and Dillard] courts use the term, is not the fact that the 
office is traditionally held by only one individual but, 
more importantly, the fact that the full authority of that 
office is exercised exclusively by one individual.

714 F. Supp. at 518.

Viewing district judges as members of a multi-member 

body is flawed in concept. Before any suits are filed, before 

any cases are assigned, there is a group of judges with 

concurrent jurisdiction, and plaintiffs maintain that this group



- 103a -

should have minority members, so that minorities’ views and 

concerns are considered by the judges who decide important 

issues in their lives. The problem is that once a case is 

assigned, it is decided by only one judge. The other judges 

have absolutely no say over the disposition of that case, and 

no influence over the deciding judge. One commentator has 

described the Texas system as a "one-judge, one court 

organization at the trial level, with rigid jurisdictional lines 

and with each judge largely independent of any supervisory 

control, except by way of appellate review." Guittard, 

Court Reform Texas Style, 21 Sw. L.J. at 455.

C.

It is implicit in Gingles that the effect of election 

practices must be considered after taking the underlying 

definition of the offices of state government as given. Even 

the sharply divided Gingles Court agreed that its inquiries 

were only into the legality of at-large methods of electing 

representatives to a larger governing body. Section 2 does



- 104a -

not grant federal courts the authority to disregard the states’

basic arrangements. We would not rest on inference to

support such a grant of authority. It would run counter to

fundamental concepts of federalism:

As broad as the congressional enforcement power is 
[under the fifteenth amendment], it is not unlimited. 
Specifically, . . .  the power granted to Congress was 
not intended to strip the States of their power to govern 
themselves or to convert our national government of 
enumerated powers into a central government of 
unrestrained authority over every inch of the whole 
Nation.

Oregon v. Mitchell, 400 U.S. 112, 128 (1970).

The State of Texas has chosen to have trial judges who

wield full judicial authority alone, a structure we must

accept. Subdistricting would not create an equal opportunity

for representation in decision-making, for

[t]here can be no equal opportunity for representation 
within an office filled by one person. Whereas, in an 
election to a multi-member body, a minority class has 
an opportunity to secure a share of representation equal 
to that of other classes by electing its members from 
districts in which it is dominant, there is no such thing 
as a "share" of a single-member office.

Butts, 779 F.2d at 148. What subdistricting does, rather



- 105a -

than provide minorities with representation in all decisions, 

is to simply allocate judges, and thus judicial decisions, 

among various population groups. The Voting Rights Act 

does not authorize such allocation. It cannot be made to 

authorize allocating judges by simply restating the office of 

district judge as a shared office or by asserting that the 

"function" of an office is not relevant. Saying that district 

judges in fact share a common office that can be 

subdistricted does not make it so. Nor does the assertion 

that function is not relevant make sense. Function is 

relevant to the threshold question of what features of the 

state arrangement define the office.

These judges all hear and decide their own docket of 

cases, and their character as single-office holders instead of 

members of a multi-member body is emphasized by the 

problems inherent in attempting to break the linkage of 

jurisdiction and elective base. To do so may well lessen 

minority influence instead of increase it, surely not what



- 106a -

Congress intended when it enacted the Voting Rights Act or 

its amendments. The current system of electing district 

judges at least permits voters to vote for each and every 

judicial position within a given district, generally a county. 

It is more likely, therefore, that minority voters will have 

some influence on the election of each judge. Under the 

district court’s order, each voter would have the opportunity 

to vote for only one judge in each district, the judge whose 

position was assigned to the subdivision. At the same time, 

a minority litigant will be assigned at random to appear 

before any district judge in the county. Under the district 

court’s orders it is much more likely than not that a minority 

litigant will be assigned to appear before a judge who is not 

elected from a voting district with greater than 50% minority 

population. Instead, the great majority of district judges 

will be elected from new voting subdistricts with negligible 

minority populations and, consequently, negligible minority 

political influence on the outcome of those elections. Under



- 107a -

the new order requiring election of judges from subdistricts, 

9 of the 59 judicial positions in Harris county would be 

elected from minority-dominated subdivisions. Minority 

voters would have very little influence over the election of 

the other 50 judges, for the minority population is 

concentrated in those 9 subdivisions. When minority 

members are litigants, however, they would not necessarily 

appear before one of the judges elected from a minority- 

dominated subdivision. Instead, a minority member would 

have an 84.75% chance of appearing before a judge who has 

little direct political interest in being responsive to minority 

concerns.13 The minority member would have a 98.3% 

chance of appearing before a judge in whose election he had 

not been able to vote. This is not like the situation in 

Chisom, where the judges were all part of one body, and 

every case that went to the Louisiana Supreme Court was

Moreover, cases without minority parties, but nonetheless 
concerning issues important to minority groups, would have an 84.75% 
chance of being assigned to a judge with no accountability to minorities 
living in the county.



- 108a -

heard by all of the judges, so every individual litigant from 

the state of Louisiana was assured that a judge for whom he 

had an opportunity to vote would hear his case.

Requiring subdistricting for purposes of electing district 

judges, unlike other offices, would change the structure of 

the government because it would change the nature of the 

decision-making body and diminish the appearance if not fact 

of its judicial independence—a core element of a judicial 

office. Trial judges would still exercise their full authority 

alone, but that authority would no longer come from the 

entire electorate within their jurisdictional area.

Subdistricting would result in decisions being made for the 

county as a whole by judges representing only a small 

fraction of the electorate. This does not occur when

members of larger bodies are elected from subdistricts, for 

when the body makes a decision, the interests of all electors 

are still represented in each decision. When the decisions 

are not made by a group, the nature of the decision-making



- 109a -

body as representative of all of the electors is fundamentally 

changed through subdistricting. The State of Texas has 

struck for the essential and defining quality of independence 

by defining the office of trial judge as a person who judges 

singly and whose power is derived from an electoral base 

equal to jurisdictional base. Trial judges are not members 

of a multi-member body, although there are many district 

judges, for the district judges do not decide cases as a body. 

Disregarding the state’s insisted linkage of elective base and 

jurisdiction for single office holders by subdistricting or 

ignoring their discrete activity, causes a fundamental change 

in the very office of district judge, a result not contemplated 

by the Voting Rights Act. These elements define the office; 

they are far more than the "manner" of election.

One can view the single-official doctrine as being no 

more than a statement of the mechanical impossibility of 

gaining greater representation for minorities. This approach 

is simply a resignation to the reality that if there is only one



- 110a -

official, there can only be an at-large election. A second 

view is that the single official exception expresses far more. 

This view recognizes that we must accept the state’s 

definition of the office, and that where functions are singly 

exercised, providing single-member districts is no more than 

proportional representation in its most superficial form.

Some district courts have proceeded with the first view, 

concluding that the single official doctrine is inapplicable 

where more than one official was elected at-large by the 

same electorate. It is plain that this entire suit rests upon the 

premise that the single official exception reflects no more 

than the reality that there is nothing to divide unless there is 

more than one judge in a single county. It is no accident 

that this suit attacks only the nine counties with multiple 

district judges and minority populations. But, the right 

secured to minorities under Section 2 of the Voting Rights 

Act to not have their vote diluted is expressed in the 

assertion that their interests are to be represented in



- 111a -

governmental decisions. Where judges make their decisions 

alone, electing judges from single member districts only 

increases the likelihood that a small number of governmental 

decisions will be influenced by minority interests, while 

minority interests will not be represented at all in the 

majority of judicial decisions. In this way subdistricting 

would work a fundamental change in the scheme of self 

governance chosen by the state of Texas, for it would change 

the authority behind the decisionmaking body of the Texas 

courts—and in doing so it would retard, not advance the 

goals of the Voting Rights Act.

In sum, the single-official concept as we apply it here, 

whatever its full import in other contexts, is no more than a 

specific application of the basic principle that analysis under 

the Voting Rights Act proceeds without changing the state’s 

definition of the office. With the judges acting alone, each 

judge the decision-making body, a coterminous electoral and 

jurisdictional base is a core component of the office.



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Subdistricting would change that office in ways wholly 

different from changing the selection of members of a 

governing body as distinguished from the body itself.

D.

Plaintiffs argue that the state’s interest in linking 

jurisdiction and elective base is weakened because in 1985 

Texas granted authority to counties to provide for the 

election of district judges from smaller geographical units. 

There are two difficulties with this argument. First, no 

county has elected to do so, and, second, the change only 

allows the creation of districts smaller than a county. It does 

not purport to authorize the election of district judges with 

county wide jurisdiction from districts smaller than the 

county.

It is also suggested that there is no unacceptable 

appearance of bias (translate, you still have a court of law) 

in the prosecution of claims where one litigant is a 

constituent of a district judge and the other is not. The



- 113a -

argument continues that such a circumstance is presented 

where one of the parties is from another county. This 

suggestion ignores the fact that the state recognized that 

elimination of this risk and appearance of bias was essential 

to the office it was creating by an elaborate set of rules 

controlling venue. Indeed, Texas has perhaps the most 

developed venue practice of any of the states, doubtlessly 

attributable to its diversity and size, allowing a mini-trial of 

venue facts. Whether a trial proceeds in the plaintiff’s home 

county in El Paso or a defendant’s home county in Dallas is 

of great moment. In sum, the intercounty bias argument 

proves, rather than defeats, the point. Avoiding the fact and 

appearance of bias is a powerful state interest. There is no 

corresponding system of venue rules for a subdistricted 

county. Rather, as we explained, the state insists on linking 

the elective and jurisdictional base. Texas wants a trial 

judge, not a partisan. We are persuaded that Texas has a 

compelling interest in linking jurisdiction and elective base



- 114a -

for judges acting alone. By definition there can be no 

dilution from the county-wide election of such single 

officials.



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JOHNSON, Circuit Judge, dissenting:

Introduction

Let it be clear at the outset: this case presents

compelling allegations of racial discrimination brought under 

the United States Voting Rights Act by black and Hispanic 

minorities. Congress intended the Voting Rights Act to be 

a key measure in its efforts to erase a haunting legacy of 

racial discrimination in the United States. The majority and 

concurring opinions in this case, in reasoning inconsistent 

with this Court’s long history of progressive and enlightened 

interpretation of civil rights legislation,1 seriously cripple this 

congressional intent. Despite unmistakable congressional 

statements concerning the broad scope of the Voting Rights

1 This Court’s history of courageous efforts to end racial 
discrimination in the South are well know. See J. Bass, Unlikely Heroes 
(1981). For instance, in 1973 this Court handed down a landmark 
Voting Rights Act decision, Zimmer v. McKeilhen, 485 F.2d 1297 (5th 
Cir. 1973) (en banc), aff’d sub nom. East Carroll Parish School Board 
v. Marshall, 424 U.S. 636 (1976) (per curiam), which established an 
enlightened set of standards to be applied under the Voting Rights Act’s 
"totality of the circumstances" test. The Supreme Court later cited 
Zimmer as the authoritative exposition of these standards. See Thornburg 
v. Gingles, 478 U.S. 30, 36 n.4 (1986).



- 116a -

Act, the majority and concurring opinions have taken 

different directions to achieve the same result: they deny 

minority groups the right to challenge discriminatory 

practices in judicial elections.

The majority opinion is completely isolated. No 

previous court has ever even suggested that judicial elections 

might be exempt from the reach of Section 2 of the Voting 

Rights Act. To the contrary, this Court, the United States 

Court of Appeals for the Fifth Circuit, had earlier concluded 

that Section 2 applied to all elections, including judicial 

elections. Not only does the majority opinion reverse this 

two year old precedent, but it also demonstrates a shocking 

lack of concern for the urgently argued position of the 

Attorney General, who has consistently maintained that the 

Voting Rights Act reaches all elections. The majority’s 

isolated opinion stands as a burning scar on the flesh of the 

Voting Rights Act; the majority opinion is not simply wrong, 

it is dangerous.



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Judge Higginbotham’s concurring opinion ("the 

concurrence") is scarcely removed from the majority 

opinion. Like the majority opinion, the concurrence is 

wholly inconsistent with the reasoned decisions of numerous 

courts and the established position of the Attorney General. 

The concurrence purports to rely upon compelling precedent 

from another federal court. But in truth, the concurrence is 

entirely premised upon a single case that is not authority for 

the concurring opinion’s eccentric holding. The scar the 

concurrence would leave on the Voting Rights Act is no less 

injurious than that the majority inflicts; the concurrence is 

not only wrong, it too is dangerous.

Several truths are self-evident from the clear language 

of the statute that had heretofore opened the electoral process 

to people of all colors. The Voting Rights Act focuses on 

the voter, not the elected official. The Act was intended to 

prohibit racial discrimination in all voting, the sole inquiry 

being whether the political processes are equally open to all



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persons, no matter their race or color. The Act is concerned 

only with the intent of persons of "race or color" in casting 

a ballot; it has no interest in the function of the person 

holding the office. Yet, the majority and concurring judges 

carve out a sweeping exception to the Act’s intended scope, 

concluding that the Voting Rights Act does not apply to 

judicial elections (or at least some judicial elections). I 

refuse to join my fellow judges’ purposeful and calculated 

deprivation of the Voting Rights Act’s ability to eliminate 

racial discrimination in the electoral process.

I .

THE MAJORITY OPINION 

In 1988 this Court handed down its decision in Chisom 

v. Edwards, 839 F.2d 1056 (5th Cir.), cert, denied sub nom. 

Roemer v. Chisom, 109 S. Ct. 390 (1988), which held that 

Section 2 of the Voting Rights Act applies to judicial 

elections. Today, in an opinion that mutilates familiar



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precepts of statutory construction,2 the majority rudely 

abandons the Chisom precedent.3 The majority, concluding

2 Purporting to apply the text o f the statute, Majority Opinion at 23 
n.14, the majority essentially concludes that the term "representative" in 
Section 2 of the Voting Rights Act is synonymous with the term 
"legislator." To the contrary, the majority is not applying the text of the 
statute, but rather it is applying its own novel definition of an isolated 
term appearing on one single occasion in the statute. Be that as it may, 
the majority still should never have reached the point of literally applying 
the text o f the statute. In this Circuit, it is established law that "literal 
statutory construction is inappropriate if it would produce a result in 
conflict with the legislative purpose clearly manifested in an entire statute 
or statutory scheme or with clear legislative history." Almendariz v. 
Barrett-Fisher Co., 762 F.2d 1275, 1278 (5th Cir. 1985). Conveniently, 
the majority opinion ignored this established law, probably because it 
knew that its "literal" definition of "representative" was inconsistent with 
other language in the Voting Rights Act and the legislative history of the 
Act.

3 On May 27, 1988, a panel of this Court denied a Petition for 
Rehearing and for Rehearing En Banc in Chisom v. Edwards because 
"no member of this panel nor Judge in regular active service on the 
Court ... requested that the Court be polled on rehearing en banc." 
(emphasis added). Despite the denial of rehearing in Chisom concerning 
the applicability of Section 2 of the Voting Rights Act to judicial 
elections, the majority now utilizes the grant of en banc consideration in 
the instant case to reconsider Chisom. Such action, while certainly not 
prohibited, offends the familiar principle of stare decisis. It cannot be 
stated too adamantly: the majority of this Court is reconsidering a
decision on which, just barely two years go, no member of the Court 
even suggested holding the mandate in order to explore the possibility of 
a need to reconsider the case en banc.

The capricious path the instant case was forced to take to 
accomplish the rejection of Chisom v. Edwards is revealing. As late as 
January 11, 1990, just as a special session of the Texas legislature was 
convened, a panel of this Court, two members of which are now aligned 
with the majority position, entered an order staying the judgment of the 
district court in the instant case. The express intent of this order was to 
afford the legislature a reasonable time to address the issues presented in



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that the Act does not apply to any judicial election, delivers 

a devastating blow to the Act’s continuing ability to eliminate 

racial discrimination in voting. At this stage, there is little 

reason to revisit in detail Judge Higginbotham’s refutation of

the federal district court’s decision. In part, it recited:
IT IS ORDERED that appellants’ motion for stay pending appeal 

are [sic] GRANTED. We do so in order that the State of Texas may be 
allowed a reasonable opportunity to address the problem presented by the 
holding of the district court [in the instant case] entered November 8,
1989, that the state system of selecting judges is invalid as violating 
Section 2 of the Voting Rights Act. ...

That holding, if sustained on appeal, will require an organic and 
wholesale review and reconstitution of the Texas judicial selection 
system, a task which should be addressed and carried out by the state’s 
elected representatives, rather than by the federal courts. Only if it 
becomes apparent that the state is unwilling to act with measured and 
appropriate speed in this regard should our courts intervene. When the 
State has had a reasonable period within which to address the problem 
presented in a special session of the Legislature, the Court will entertain 
a motion to dissolve. That has not yet occurred; when it does, we will 
be amenable to a motion to dissolve the stay which we enter today.

League o f United Latin American Citizens v. Clements, No. 90-8014 (5th 
Cir. Jan. 11, 1990) (unpublished). The stay order, which cited Chisom 
and presumed the validity of Chisom, remained in effect until March 28,
1990, when it was dissolved by the panel which originally heard the 
instant case. That same day, the members of this Court voted to hear the 
case en banc on an expedited schedule. The panel opinion here was 
rendered on May 11, 1990, and the en banc Court heard oral arguments 
on June 19, 1990.

The presumption of this Court as late as January 11, 1990, 
concerning the validity of Chisom and its inescapable holding that the 
Voting Rights Act applies to all judicial elections was obliterated like 
parched grass in the face of a late summer prairie fire. The fire is 
beyond reason or control as it races across the prairie~yet its cause is 
unknown.



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the majority’s attack on Chisom v. Edwards. It is sufficient 

simply to reiterate a few essential-and well established- 

points.

Congress enacted the Voting Rights Act in 1965 "to rid 

the country of racial discrimination in voting." South 

Carolina v. Katzenbach, 383 U.S. 301, 315 (1966). Since 

the inception of the Act, the Supreme Court has consistently 

interpreted the Act in a manner which affords it "the 

broadest possible scope" in combatting racial discrimination. 

Allen v. State Board o f Elections, 393 U.S. 544, 567 (1969). 

Other courts, including this Court, have followed the 

Supreme Court’s lead. See, e.g. , Zimmer v. McKeithen, 485 

F.2d 1297 (5th Cir. 1973) (en banc), aff’d sub nom. East 

Carroll Parish School Board v. Marshall, 424 U.S. 636 

(1976) (per curiam). As a consequence, the Voting Rights 

Act regulates a wide range of voting practices and 

procedures. See United States v. Board o f Commissioners, 

435 U.S. 110, 122-23 (1978).



- 122a -

For a resolution of the instant case, it is unnecessary to 

look beyond Section 14(c)(1) of the Voting Rights Act, 

which defines the salient word "voting" and describes the 

range of election practices that are encompassed within the 

regulatory sphere of the Act:

The terms "vote" or "voting" shall include all action 
necessary to make a vote effective in any primary, special, 
or general election, including, but not limited to, 
registration, listing pursuant to this subchapter or other 
action required by law prerequisite to voting, casting a 
ballot, and having such ballot counted properly and included 
in the appropriate totals of votes cast with respect to 
candidates for public or party office and propositions for 
which votes are received in an election.

42 U.S.C. § 19731 (1982) (emphasis added). Can this

language in the Act itself be ignored? It is indisputable that

Texas’ elected judges are "candidates for public or party

office." Thus, by its express terms, the Voting Rights Act

applies to state judicial elections. Indeed, this is the only

result consistent with the plain language of the Act.

Nonetheless, relying on a restrictive definition of the 

single word "representative" in Section 2 of the Act, the



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majority determines that the Voting Rights Act does not 

necessarily apply to all "candidates for public or party 

office." Such a conclusion breaches several established 

canons of statutory construction. The majority’s restrictive 

definition of "representative" violates the requirement that 

remedial legislation such as the Voting Rights Act be broadly 

construed. See Allen, 393 U.S. at 565. The majority’s 

reliance on an isolated term violates the requirement that a 

reviewing court examine a statute in its entirety. See Duke 

v. University o f Texas at El Paso, 663 F.2d 522, 525 (1981), 

cert, denied, 469 U.S. 922 (1984).

Moreover, the majority’s awkward decision violates the 

requirement that a reviewing court avoid statutory 

interpretations that lead to an absurd or inconsistent result. 

See United States v. Turkette, 452 U.S. 576, 580 (1981). 

As just one example of the majority opinion’s troubled logic, 

consider the majority’s crude attempt to distinguish judges 

from other elected officials. The majority repeatedly urges



- 124a -

that judges are not "representatives" within the 

comprehension of the Voting Rights Act because judges are 

not advocates; that is, judges "speak for and to the entire 

community, never for segments of it and still less for 

particular individuals." Majority Opinion at 19 (emphasis 

in original). Yet, at the same time, the majority recognizes 

that this Court has already found that many other elected 

officials are "representatives," officials who also cannot 

fairly be described as advocates for segments of the 

community or particular individuals. Majority Opinion at 23 

n.14. A county sheriff or court clerk, for example, speaks 

for and to the entire community—is responsible for and to the 

entire community. If a county sheriff or court clerk, as with 

a judge, attempted to act in a partisan manner, that person 

would be grossly deficient in his or her duties.

It should be clear by this point that the majority’s 

decision is less an attempt to interpret congressional intent 

concerning the reach of the Voting Rights Act, and more an



- 125a -

attempt to effectuate the majority’s policy determination that 

state judicial elections should be immune from federal 

congressional interference. Perhaps the strongest evidence 

of the majority’s desire to supplant the stated aims of 

Congress with its own policy preferences is its conspicuously 

casual treatment of the position of the United States Attorney 

General. In United States v. Board o f Commissioners, 435 

U.S. at 131, the Supreme Court concluded that the Attorney 

General’s interpretation of the Voting Rights Act is 

persuasive evidence of the original congressional 

understanding of the Act, "especially in light of the extensive 

role the Attorney General played in drafting the statute and 

explaining its operation to Congress." Ich In the present 

case, the Attorney General has filed an amicus curiae brief 

which maintains that the scope of Section 2 of the Voting 

Rights Act reaches all elections, including judicial elections. 

But remarkably, the majority dismisses the Attorney 

General’s position, noting simply that it does not seem to



- 126a -

"weigh very heavily in the scales." Majority Opinion at 23.

The application of Section 2 should depend solely on the 

fact of nomination or election. As the Eleventh Circuit has- 

-a Circuit which shares this Court’s long tradition of 

enlightened enforcement of federal civil rights legislation- 

has noted, "[njowhere in the language of Section 2 nor in the 

legislative history does Congress condition the applicability 

of Section 2 on the function performed by an elected 

official." Dillard v. Crenshaw County, 831 F.2d 246, 250 

51 (11th Cir. 1987) (emphasis added). By exempting an 

entire class of elected officials from Section 2 simply on the 

basis of their judicial function, the majority has not only 

inextricably placed this Court at odds with the conclusions of 

other circuits, but also has struck a devastating blow to the 

Voting Rights Act’s ability to alleviate racial discrimination 

in the voting process.

II.

THE CONCURRENCE



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Judge Higginbotham’s concurring opinion concludes, 

and I agree, that the Voting Rights Act applies to judicial 

elections. The concurrence, however, is itself seriously 

flawed. Critical examination of the concurring opinion’s 

construction of the single office holder exception reveals the 

error:4 the concurrence’s creative interpretation of the 

Voting Rights Act would result in the per se exclusion from 

the reach of the Voting Rights Act of elections for the 

greatest part of the judiciary—state district court judges. In 

a troubling display of judicial intervention, the concurrence’s 

result-oriented opinion fails even to acknowledge the clear 

purpose of the Act evidenced in its language and legislative 

history.

In adopting the Civil War amendments, Congress was 

propelled by a concern for the emasculation of minority 

voting strength through the puissant coupling of bigotry with

4 The concurrence asserts that there can be no dilution of minority 
voting strength where the elected official acts independently, regardless 
of whether there are one or one hundred such official posts in the 
relevant district.



- 128a -

state supported election practices.5 Similarly, a century 

later, Congress enacted the Voting Rights Act for the broad 

purpose of eradicating racial discrimination in voting across 

the length and breadth of this nation.6 In 1982 amendments 

to the Act, Congress strengthened the Act’s promise to 

ensure minorities equal access to the political process. The 

Senate Report accompanying the 1982 amendments indicates 

that the Voting Rights Act was designed not only to correct 

active discrimination, but to "deal with the accumulation of 

discrimination." Senate Report Accompanying the 1982 

Amendments to the Voting Rights Act at 5. Especially in 

light of the history and language of the Act, it is axiomatic 

that the relevant inquiry centers on the voter--specifically, 

the minority voter—not on the elected official. The Act is, 

after all, the Voting Rights Act.

5 See Concurring Opinion at 24.

6 President Ford’s poignant words are as powerful today, fifteen
years later: "the right to vote is the very foundation of our American
system, and nothing must mterfere with this very precious right." 
President Gerald Ford, Remarks Upon Signing A Bill Extending the 
Voting Rights Act of 1965 (August 6, 1975).



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Section 2 and the Judiciary

The majority opinion concludes that state district court 

judges are not "representatives" within the comprehension of 

Section 2 of the Voting Rights Act. However, as the 

concurrence aptly notes, the term "representatives" in 

Section 2 is not synonymous with "legislator." Congress 

intended the Voting Rights Act to prohibit and alleviate 

discrimination in all voting, a term which Congress defined 

to include any action necessary to make a vote effective in 

any election with respect to any candidate for public or party 

office.7 From the language of the Act as a whole, it is clear * 5

7 The United States Attorneys General, in an unbroken chain, have 
consistently interpreted the Voting Rights Act broadly, and, more 
recently, have interpreted Section 2 to reach elected judges. At the time 
the original Voting Rights Act was passed in 1965, the Attorney General 
stated that "every election in which registered voters are permitted to vote 
would be covered." Voting Rights: Hearing Before Subcommittee No.
5 of the House Judiciary Committee, 89th Cong. 1st Sess. 21 (1965) 
(emphasis added). In both Chisom v. Edwards, 839 F.2d 1056 (5th 
Cir.), cert, denied sub nom. Roemer v. Chisom, 109 S. Ct. 390 (1988), 
and in the instant case, the Attorney General filed an amicus brief in 
which he maintains that the scope of Section 2 reaches all elections, 
including judicial elections.
Additionally, in a recent Section 5 preclearance review, the Assistant 
Attorney General denied preclearance of a proposed majority vote, 
designated post, at-large method of judicial elections in Georgia similar 
to that under attack in the instant case, concluding in part:



- 130a -

that the term "representative" corresponds with the term 

"candidate." It is also clear that a contestant in a judicial 

election is a candidate for public office. Thus, the language 

and reasoning of the concurring opinion is sound to the 

limited extent it urges that neither the words nor the 

legislative history of the Act indicate any intention on the 

part of Congress to exempt judicial elections from coverage.

This Court has previously addressed the question of the 

Act’s application to judicial elections. In Chisom v. 

Edwards, a case which examined the application of Section 

2 in the context of a challenge to Louisiana’s system of 

electing state supreme court justices, a panel of this Court

Our review of a broad range of evidence in this regard indicates that 
polarized voting generally prevails in all of the superior court circuits 
now under review and there is a consistent lack of minority electoral 
success in at-large elections. Thus, it appears that, in the totality of the 
circumstances, black voters in these circuits have a limited opportunity 
to elect their preferred candidates....

In addition, the state has not shown how its interests are served by 
circuitwide elections in many of the circuits now at issue where the 
at-large election feature is in apparent violation of Section 2 of the 
Voting Rights Act.

Letter from Assistant Attorney General John R. Dunne to Georgia 
Attorney General Michael J. Bowers (Apr. 25, 1990).



- 131a -

held that Section 2 applies with equal force to judicial 

elections. As in the concurring opinion in the instant case, 

the outcome in Chisom hinged upon an examination of both 

the plain language and the legislative history of the Act.

Despite a basic agreement with this Court’s earlier 

analysis in Chisom, the concurrence here attempts to shift the 

focus of the Voting Rights Act from the minority voter to 

the elected official. This Court recognized in Chisom that 

the term "representative" for purposes of the Voting Rights 

Act may be defined as anyone selected by popular election 

from a field of candidates to fill an office.8 The definition 

of "representative" in Chisom intertwines with the statute’s 

definitions of "vote" and "voting" and assures the Act’s 

application to all elections. The concurrence in the present 

case, however, subtly constricts this definition. While 

acknowledging that Congress used the terms "candidate" and 

"representative" interchangeably when drafting the Act, the

Chisom, 839 F.2d at 1060.



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concurrence defines "representative," at least within the 

narrow confines of Texas elections for district judges, as 

"one who is chosen to be responsive to the people and to 

represent their interests in decisions." Concurring Opinion 

at 7. The concurrence’s definition attempts to precipitously 

limit the scope of the Act’s remedial provisions, emphasizing 

the position of the office-holder over the status of the voter. 

The anticipated responsive nature of a particular office (or 

office holder) is of absolutely no consequence to the initial 

and dispositive question of whether the office is filled 

through the use of an electoral process.9 Nonetheless, the

9 It is true that one of the Senate Report factors that may be probative 
in a vote dilution case to establish a Section 2(b) violation is "whether 
there is a significant lack of responsiveness on the part of elected officials 
to the particularized needs of the members of the minority group." S. 
Rep. at 29. However, the Senate Report emphasizes that 
"[u]nresponsiveness is not an essential part of plaintiffs case." Id. at 
n. 116. In fact, in Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 
1988)-, a case involving a vote dilution challenge to the use of multi­
member districts and at-large voting to elect Louisiana district court, 
family court, and court of appeals judges, the district court remarked that 
the element of responsive representation simply is not a consideration in 
a judicial election case:

The Senate Report... also suggested that lack of 
responsiveness on the part of elected officials to the particularized 
need of the members of the minority group might be factor in some



- 133a -

concurrence’s definition is necessary to its "single official" 

argument-which is based in part on an examination of the 

duties and functions performed by a trial judge once he or 

she is in office-and the argument that the State has a 

compelling interest in retaining the current system.

The Minority Voter

Despite Congress’ clear statement that the Voting Rights 

Act applies to all voting, the concurrence, through rhetoric 

surrounding the term "representative," attempts to shift 

attention from the one casting a vote to the one for whom 

the vote is cast. Not one word or thought contained in 

Section 2(a) or (b) supports, or is suggested by the 

concurrence in support, of this effort. The Voting Rights

cases. ... That obviously is not a factor in this case since the only 
response which a member of the judiciary may make is to rule on 
all matters fairly and impartially, without favoring or being 
prejudiced against any group.

Id. at 301. Consequently, while a state’s interest in retaining a system 
which exudes an appearance of impartiality may be considered among the 
totality of the circumstances, the converse, actual responsiveness, should 
not be relevant to a claim of vote dilution in the context of a judicial 
election.



- 134a -

Act was designed to eradicate discrimination in voting, and 

the essential inquiry is whether the political processes leading 

to the casting of the ballot are equally open to all persons, 

no matter what their race or color.

Nothing in the language of Section 2 suggests that a 

reviewing court should concentrate on the type of election 

under dispute--whether it is for a mayor, an alderman, a 

legislator, a constable, a judge or any other kind of elected 

official.10 Rather, the sole focus of Section 2 is the minority

Section 2, as amended in 1982, now provides:
(a) No voting qualification or prerequisite to voting or standard 

practice, or procedure shall be imposed or applied by any State or 
political subdivision in a manner which results in a denial or abridgement 
of the right of any citizen of the United States to vote on account of race 
or color, or in contravention of the guarantees set forth in section 
1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) is established if, based on the 
totality of circumstances, it is shown that the political processes leading 
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 subsection (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 circumstance 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.

42 U.S.C. § 1973 (1982).



- 135a -

voter—specifically, whether the minority voter has been 

allowed the opportunity to participate fully in the democratic 

process.

Nowhere in the language of Section 2 nor in the 
legislative history does Congress condition the 
applicability of Section 2 on the function performed by 
an elected official. ... Once a post is open to the 
electorate, ... if it is shown that the context of that 
election creates a discriminatory but corrigible election 
practice, it must be open in a way that allows racial 
groups to participate equally.

Dillard v. Crenshaw County, 831 F.2d 246, 250-51 (11th 

Cir. 1987).11

The instant case reveals an electoral scheme which is 

"discriminatory but corrigible." Whenever a number of 

officials with similar functions are elected from within a 

discrete geographic area, there exists the inherent potential 

for vote dilution. The concurrence, however, ignores this 

verifiable fact, and concludes that, because the full authority 

of the elected position is exercised exclusively by one

This Court, in Chisom, stressed the soundness of the 
Dillard court’s reasoning. Chisom, 839 F.2d at 1060.



- 136a -

individual, there can be no impermissible dilution of the 

minority vote.

The Voting Rights Act is not concerned with the power 

and authority vested in the elected office. It is the value and 

efficacy of the political process accorded the voter, not the 

office holder, which is secured by statute. The Supreme 

Court’s decision in Thornburg v. Gingles12 stressed 

Congressional concern over the submergence of minority 

votes as a result of significant white bloc voting. The 

express language of Section 2(b), which looks only to the 

"political processes leading to nomination or election" and to 

whether minority members "have less opportunity than other 

members of the electorate to participate in the political 

process and to elect representatives of their choice," 

emphasizes this Congressional concern on the voter and not 

the elected official. Congress focused in Section 2 on the 

elimination of discrimination in voting (thus the title of the

12 478 U.S. 30 (1986).



- 137a -

Act), and on the creation of minority opportunities for 

electoral success. See Gingles, 478 U.S. 30, 48 (1986); 

Haith v. Martin, 618 F. Supp. 410, 413 (E.D.N.C. 1985), 

aff’d, 477 U.S. 901 (1986) (the Act applies "to all voting 

without any limitation as to who, or what, is the object of 

the vote") (emphasis in original).

The concurrence asserts that the essential right secured 

to minorities under Section 2 is the right to have "their 

interests... represen ted in governmental decisions." 

Concurring Opinion at 45. In this way, the concurrence 

bolsters its argument that creating smaller districts in multi­

seat counties would create a perverse result by lessening 

"minority influence" over the decisions reached in lawsuits. 

Going further afield, the concurrence expresses concerned 

that under a system such as that authorized in the district 

court’s interim plan, there is a high probability that a 

minority voter appearing in court will have his or her case 

heard by a judge whom he or she had no hand in electing.



- 138a -

The concurrence’s discussion approaches the perceived 

problem from the wrong end;13 again, quite simply, the focus 

should be on the rights of the voter, not the litigant. The 

essential inquiry is whether the minority vote is diluted- 

whether minority citizens have an equal chance of electing 

candidates of their choice. As the concurrence 

acknowledges, the standard is whether the political processes 

are equally open to participation. The focus of the 1982 

legislative history of the Act, the 1985 amendment, and 

Gingles is on electoral opportunities and success.

Congress has acknowledged that, depending on whether the 
right or the wrong question is posed, courts may reach a conclusion 
which is totally anathema to the intent of the legislature. See, e.g., S. 
Rep. at 28 (discussing the "wrong test" imposed by the mtent test). The 
concurring opinion’s rear-ended approach can best be illustrated through 
the use of another question: Does the Act guarantee that minority
interests are represented or that minorities have access to the political 
process? While it is undoubtedly presumed that an elected official will 
represent the desires of the voters, the Voting Rights Act does not speak 
to such a presumption. While it may seem that the two questions are 
simply different sides of the same coin, the distinction is one which the 
legislature has contemplated. If the concurrence’s statement that the 
"right secured to minorities under Section 2 of the Voting Rights Act to 
not have their vote diluted is expressed in the assertion that their interests 
are to be represented in governmental decisions" were correct, this would 
lead to the absurd conclusion that a plaintiff could, pursuant to the Voting 
Rights Act, bring to task an elected official who has not, during his 
tenure in office, given proper deference to minority interests.



- 139a -

The concurrence refuses to acknowledge the 

preeminence, within the context of the Voting Rights Act, of 

the efficacy of the minority vote. The concurrence notes 

that, because all registered voters in the county vote for all 

the judges, "minority voters have some influence on the 

election of each judge." Concurring Opinion at 42. This 

statement entirely avoids the issue: the instant case is before 

this Court because minority voters have asserted and proven 

that any influence they may potentially have as a cohesive 

voice-whether as to the election of one judge or several- 

is submerged at the ballot box by white bloc voting.

Even more disturbing, however, is the concurrence’s 

confusion of the minority as voter and the minority as 

litigant. This confusion is best illustrated by the 

concurrence’s concern that, under a single member 

districting scheme such as that imposed by the federal district 

court’s interim plan, "a minority member would have an 

84.75% chance of appearing before a judge who has no



- 140a -

direct political interest in being responsive to minority 

concerns." Id. at 43. The right of minorities to an equal 

opportunity to elect the candidates of their choice 

encompasses more far-reaching effects than the statistical 

probability that a minority litigant will appear before a judge 

of like race or color.14 Despite the progress achieved under 

federal and state civil rights statutes, minorities in this 

country are far from free of the lingering legacy of racial 

discrimination, even at the ballot box.

The Function o f Function

When juxtaposed against the express language of the 

Act, a test which requires an examination of the function of 

the elected official is inherently suspect by virtue of its

Black and Hispanic judges serve as role models for other 
minority group members, who may not have envisioned a legal or 
judicial career as a real possibility in the past. In addition, minority 
electoral victories encourage other minority members to participate in the 
political process by voting and by running for office. Persistent minority 
defeat, on the other hand, leads to apathy among minority voters and a 
feeling of exclusion from the opportunity to join in the process of self- 
government. To assert that these interests are any less tangible because 
of the nature of the elected office is to pervert the very core of the 
Voting Rights Act.



- 141a -

obvious judicial invention. As one court has emphatically 

noted,

[n]owhere in the 239 pages of the [Senate] Report is 
there any indication whatsoever that Congress intended 
the Voting Rights Act to apply to only particular types 
of elections. Rather, the entire Report indicates ... that 
the 1982 amendment was intended to effect an expansive 
application of the Act to state and local elections.

Southern Christian Leadership Conference v. Siegelman, 714

F. Supp. 511 (M.D. Ala. 1989). The title or duties of an

elected office are inconsequential to the fundamental question

of whether, due to significant white bloc voting, the votes of

a cohesive minority group are consistently submerged and

rendered ineffectual to elect the minority’s preferred

candidate.

The concurrence opines that " [f]unction is relevant to 

the threshold question of what features of the state 

arrangement define the office." Concurring Opinion at 41. 

This statement in its broadest sense is undoubtedly true. In 

the context of the Voting Rights Act, however, the 

compelling question is at what point that function will be



- 142a -

examined. The Act’s focus on the minority voter reinforces 

the proposition that the function of the elected official is only 

relevant to an examination of whether, under the totality of 

the circumstances, a Section 2 violation has been established, 

not whether Section 2 is applicable.

To focus primarily on the function of the official during 

the initial analysis of a Voting Rights Act claim is to ignore 

the essential inquiry of the Act: "whether, as a result of the 

challenged, practice or structure, the fundamental right of 

minorities to elect candidates of their choice and to 

participate equally in the political process has been violated." 

Senate Report at 28 (emphasis added). The quoted language 

indicates that, contrary to the concurring opinion’s 

assertions, a reviewing court is not bound to accept a state’s 

governmental plan if that plan in fact results in the illegal 

submergence of minority votes.15 If deference to the

In fact, the concurrence concedes that "section 2, if a 
violation is found, can lead to the dismantling of an entire system of 
voting practices that may have been in place for many years.” 
Concurring Opinion at 30.



- 143a

function of an official were in fact required, courts would 

have been acting contrary to the law since the very origin of 

voting rights litigation. Surely the imposition of single 

member districts in a judicial context treads no more upon 

a state’s electoral scheme than the now familiar court- 

ordered displacement of well-entrenched at-large election 

schemes for legislative bodies.16

Vote Dilution and Single-Member Offices 

The concurrence, characterizing Texas district court 

judges as single officeholders,17 concludes that no violation

16 The concurrence repeatedly argues that affording the
minority plaintiffs relief in the instant case would totally dismantle the 
trial-level judicial system which Texas has chosen to implement. The 
torch has already destroyed this straw man; as the concurrence has 
pointed out, Texas has structured its government such that elected trial 
judges often wield their power independently. Even if single member 
districting should be the remedy ultimately imposed in the instant case, 
this fundamental characterization would not be altered.

A court reviewing a claim of vote dilution must look to the 
plaintiffs and whether their votes, although cast, are impotent. The 
plaintiffs’ success depends on an adequate demonstration of vote dilution. 
This task may be impossible where there is only one office at issue in the 
relevant jurisdiction because the election of an official to such an office, 
with unique responsibilities over a discrete geographical area, is unlikely 
to have dilutive potential. In short, no divisible alternative can be made. 
In the instant case, however, several similar, if not identical, positions 
are sprinkled throughout a relevant geographic area, presenting the likely 
potential for vote dilution.



- 144a -

of Section 2(b) can be shown because "each judge holds a 

complete judicial office," and there can be no share of such 

a single-member office. Concurring Opinion at 33. This 

application of the so-called "single officeholder exception" is 

entirely without support.

The concurrence relies primarily on the Second Circuit’s 

opinion in Butts v. City o f New York, 779 F.2d 141 (2d Cir. 

1985), which examined New York’s primary run-off election 

law. The contested New York law provided that if no 

candidate for mayor, city council president, or comptroller 

received more than forty percent of the vote in a party 

primary, then a run-off election is held between the two 

candidates receiving the most votes. The district court, 

concluding that the totality of the circumstances demonstrated

The concurring opinion reaches the tenuous conclusion that Congress 
intended Section 2 to prohibit the discriminatory dilution of minority 
voting strength when minorities are attempting to elect appellate court 
judges, but that Section 2(b) can never reach the at-large elections of 
trial judges—regardless of whether one or one hundred judges are elected 
from the same district—because the latter officials decide controversies 
mdependently. There is no support for this contention in the words of 
the Act, in the legislative history of Section 2, nor in logic for this result- 
oriented contrivance.



- 145a -

a Section 2 violation, found in favor of the minority 

plaintiffs. The Second Circuit reversed, noting that

[t]he concept of a class’s impaired opportunity 
for equal representation [cannot be]...uncritically 
transferred] from the context of elections for multi­
member bodies to that of elections for single-member 
offices....[T]here is no such thing as a "share" of a 
single-member office.

Butts, 779 F.2d at 148. The concurring opinion rests 

squarely—and solely—on this brief passage from Butts; 

examination of the particular facts in Butts, however, reveals 

that this passage provides absolutely no support for the 

concurrence.

In Butts, the voting district consisted of a municipality. 

From this voting district, three positions were filled by 

election. The three positions were the offices of (1) mayor, 

(2) city council president, and (3) comptroller. Concluding 

that it is impossible to capture a "share" of a single member 

office, the Second Circuit held that the contested electoral 

law did not trigger a vote dilution analysis and therefore



- 146a -

could not violate Section 2(b).18 The instant case, on the 

other hand, involves the election of multiple judges to 

virtually identical positions in one geographic area, with 

each judge exercising autonomy over his or her particular 

office. The concurrence incorrectly extends Butts' reasoning 

to conclude that if minority groups are unable to elect their 

preferred candidate to these autonomous positions, the result 

is simply a consequence of the political process and not the

The Butts rule that a single-member office is not physically 
divisible has been implicitly rejected in Carrollton Branch o f NAACP v. 
Stallings, 829 F.2d 1547 (11th Cir. 1987), cert, denied sub nom. Duncan 
v. Carrollton, 485 U.S. 936 (1988). In Stallings, plaintiffs challenged 
the one-person form of county commission government in Carroll 
County, Georgia, because it diluted minority voting strength and lessened 
the opportunity of black persons in the county to participate in the 
electoral process. This one-person system had been in effect since 1953. 
The Eleventh Circuit reversed the judgment in favor of the defendants, 
holding that the district court had applied the incorrect legal standard (in 
light of Gingles) by failing to give the proper weight to the two most 
important factors in a Section 2 vote dilution claim: (1) the extent to 
which minorities had been elected, and (2) the existence of racially 
polarized voting. Id. at 1555.
In its brief discussion of Stallings, the concurrence mischaracterizes the 
Eleventh Circuit’s analysis, implying that the reversal turned only on the 
presence of evidence indicating a discriminatory intent. In fact, the 
Eleventh Circuit devoted most of its discussion to an analysis of the 
"effects" test of Section 2 and Gingles, and to the district court’s findings 
as to whether the single-member scheme resulted in discriminatory vote 
dilution. The Eleventh Circuit reversed the district court’s judgment 
based both on its treatment of the plaintiffs’ constitutional challenge, and 
on its treatment of the Section 2 challenge as well.



- 147a -

result of vote dilution.

Butts stands for nothing more than the unremarkable 

proposition that in certain electoral situations, there exists 

only one relevant office for the whole electorate. In Butts, 

one of the offices at issue was the position of mayor. The 

Second Circuit reasoned that unlike the electorate which 

selects candidates to fill the legislature, the electorate which 

selects a candidate to fill the mayoralty cannot be subdivided 

into districts. In holding that a mayoral election cannot be 

the basis of a vote dilution claim, Butts thus focuses on the 

electorate and whether the electorate can be subdivided; it 

does not focus on the official and whether the official or his 

office can be subdivided.

On a cursory examination of the concurring opinion, its 

attempted expansion of the Butts rationale might seem 

plausible. This superficial plausibility, however, is what 

makes the concurring opinion so dangerous; it has the 

potential to seduce the unwary into an interpretation of the



- 148a -

Voting Rights Act that would frighteningly limit the 

applicability of the Act. The concurrence’s understanding of 

the "single officeholder exception" is seriously flawed, and 

must not be allowed to do further damage.

In its broadest sense, the concurrence’s conception of 

the "single officeholder exception" states absolutely nothing. 

Every officeholder is a single officeholder; no position is 

shared by more than one person. Every officeholder 

exercises complete authority over the duties of his or her 

office. To say that a district judge in Texas exercises full 

responsibility over his office simply does not advance the 

analysis. Every state legislator exercises full responsibility 

over his or her office; in that respect the legislator is no 

different from a judge. Every county sheriff exercises full 

responsibility over his or her office; in that respect the 

county sheriff is no different from a judge.

The problem with the concurrence’s single officeholder 

analysis is that it misdirects the focus of the inquiry. The



- 149a -

question is not whether a judge can be subdivided, as the 

concurrence posits, but rather whether the judiciary can be 

subdivided, or more precisely, whether the electorate that 

selects the members of the judiciary can be fairly subdivided 

such that the votes of minority voters within the electorate 

are not submerged in a bloc of white votes. The focus must 

be on the electorate, and not on the individuals who are 

chosen by those voters.

Nonetheless, in an unprecedented example of judicial 

creativity, the concurrence attempts to expand the Butts rule 

by authorizing an examination of a trial court judge’s role as 

a sole decisionmaker.19 Such an expansion flies in the face

19 The concurrence heavily relies on its conclusion that the
full authority of a trial judge’s office is exercised exclusively by one 
individual. This conclusion is at odds with the true structure of the 
judicial system in Texas. For example, administrative matters are 
handled through a collegial decision-maldng process by the distnct judges 
within the county. Such matters include the election of a local 
administrative judge, the appointment of staff and support personnel, the 
adoption of local rules of administration, the adoption of local rules and 
the exercise of supervisory authority over the clerk’s office. See Tex. 
Govt. Code Ann. § 74.091 et seq. (Vernon 1988). Furthermore, the 
judges, functioning together as a collegial body, are charged with the 
responsibility of selecting by majority vote a county auditor. Id. § 
84.001 et seq. Moreover, the judges share authority over administration 
of the caseload. In Harris County, for example, fifty-nine district judges



- 150a -

of congressional intent that the Act liberally apply to all 

forms of voting. The concurrence does not do justice to the 

spirit of the Voting Rights Act by attempting to expand Bum 

to a situation in which several virtually identical positions are 

elected by the same electorate to serve the same geographic 

area.

Whether an office-holder wields his power in an 

individual or collegial manner is simply not the relevant 

inquiry. Butts, the case on which the concurrence hinges, 

was not based on a "collegial decisionmaking" rationale, nor 

was this concept even discussed. The Butts exception is 

premised simply on the number of officials being elected 

(one), the unique responsibilities of that office, and the

have overlapping authority to handle the heavy caseload of the district. 
Similarly, jury selection, case assignment, and record retention are 
handled on a county-wide basis. Furthermore, cases can be freely 
transferred between judges and any judge can work on any part of a case 
including preliminary matters. One district judge may, therefore, find his 
or her hands tied -- or greatly assisted -- by an earlier order imposed by 
another court located in the county. Tex. R. Civ. P. 330(h). In light of 
this overlapping authority and responsibility, it is incongruous to suggest 
that district court judges do in fact exercise ''full" authority over the 
office.



- 151a -

impediment to subdividing that single position so that 

minority voters have the opportunity to elect a "share." In 

the instant case, however, this Court is not concerned with 

the election of one single member position; rather, this Court 

is concerned with the election, within discrete geographic 

areas, of as many as fifty-nine judges with virtually identical 

functions. The instant case is unlike Butts; there is no 

physical impediment to elections from smaller representative 

areas.

One court has already specifically addressed the problem 

with which we are faced. In Southern Christian Leadership 

Conference v. Siegelman, 714 F. Supp. 511 (M.D. Ala. 

1989), the court rejected the application of Butts to the 

election of several trial judges from a single county.20

In effect, the at-large boundaries [in Butts]

The Siegelman court concluded, and I agree, that the courts 
in bothttway and United States v. Dallas County Comm’n, 850 F.2d 1433 
(11th Cir. 1988) implicitly utilized the term "single-member office' to 
refer "to a situation where under no circumstances will there ever be 
more than one such position in a particular geographic voting area." 
Siegelman, 714 F. Supp at 518.



- 152a -

coincide with the only "district" boundaries possible; 
because there is only one position to be filled, it 
becomes impossible to split up the jurisdiction any 
smaller. The concept of vote dilution is effectively 
rendered meaningless and such offices are inappropriate 
for section 2 vote dilution challenges. There is no such 
rationale, however, for not applying section 2 to elected 
positions merely because "the full authority of that 
office is exercised exclusively by one individual," as the 
defendants would have this court do.

Siegelman, 714 F. Supp. at 519-20 (footnotes omitted).

The approach in Siegelman is consistent with the 

Supreme Court’s analysis in Thornburg v. Gingles, 478 U.S. 

30 (1986). In Gingles, the Supreme Court stated that a 

threshold inquiry in a claim that an at-large election system 

dilutes minority voting strength is whether there is evidence 

that the minority group is sufficiently large and 

geographically compact to constitute a majority in a single­

member district. "The single-member district is generally 

the appropriate standard against which to measure minority 

group potential to elect because it is the smallest political 

unit from which representatives are elected." Gingles, 478 

U.S. at 40 n.17. Proof of this geographically compact



- 153a -

minority population essentially isolates the at-large electoral 

structure as the feature which has the potential to deny the 

minority fair electoral access. The maintenance of an at- 

large election scheme is not dilutive, however, where the 

electoral scheme in the relevant jurisdiction is indivisible 

because there is only one position to be for the particular 

jurisdiction.

Applying this reasoning, I continue to urge the adoption 

of the Siegelman court’s definition of single member office:

The true hallmark of a single-member office is 
that only one position is being filled for an entire 
geographic area, and the jurisdiction can therefore, be 
divided no smaller. While mayors and sheriffs do 
indeed "hold single-person offices in Alabama," they do 
so because there is only one such position for the entire 
geographic area in which they run for election. ... It 
is irrelevant, in ascertaining the potential existence of 
vote-dilution, that these officials happen to exercise the 
full authority of their offices alone.

Siegelman, 714 F. Supp. at 518 n. 19 (emphasis original).

The Siegelman court is not alone in its approach to a

claim of vote dilution. Several courts have found Section 2

violations in cases arising from similar factual situations.



- 154a -

For example, in Clark v. Edwards, 725 F. Supp. 285 (M.D. 

La. 1988), the district court assumed that districts with more 

than one judicial position were properly characterized as 

multi-member districts. Similarly, in Haith v. Martin, the 

district court concluded that because North Carolina Superior 

Court judgeships are "designated seats in multi-member 

districts, ... they are subject to section 5 preclearance 

requirements." 618 F. Supp. 410. Quoting the language of 

Section 2, the Haith court stated that "the Act applies to all 

voting without any limitation as to who, or what, is the 

object of the vote." Id, at 413. See also Martin v. Attain, 

658 F. Supp. 1183 (S.D. Miss. 1987); Williams v. State 

Board o f Elections, 696 F. Supp. 1563 (N.D. 111. 1988).

The concurrence, noting that Haith’s focus was 

preclearance under Section 5 and not the merits of a vote 

dilution claim under Section 2, discounts this reference to the 

designation of trial judges as part of a multi-member body. 

Yet, even while urging that Haith is irrelevant to the instant



- 155a -

case because it involves Section 5 preclearance, the 

concurrence notes that there is no reason to distinguish 

between Section 5 and Section 2 with "respect to their 

applicability to judicial elections." Concurring Opinion at 

28. The concurrence’s conclusion is based on the realization 

that

[t]o hold otherwise would lead to the incongruous result 
that if a jurisdiction had a discriminatory voting 
procedure in place with respect to judicial elections it 
could not be challenged, but if the state sought to 
introduce that very procedure as a change from existing 
procedures, it would be subject to Section 5 
preclearance and could not be implemented.

Id. The concurrence, while clearly acknowledging the

interlocking nature of Section 2 and Section 5, simply

exempts from its reasoning those judges who are said not to

act collegially; the concurrence’s logic is strained and

internally inconsistent.

A violation of the Voting Rights Act occurs where the 

challenged system effectively discourages equal participation 

in the electoral process and lessens the opportunity of



- 156a -

minority voters to elect representatives of their choice. 

Where several officials, performing essentially the same job, 

are elected at-large from one geographic area, the potential 

for vote dilution is no less tangible simply because each 

official acts independently of the others. As the court in 

Siegelman stated, there exists "no rational reason why the 

concept of vote dilution cannot, or should not, apply to 

elected members of the judiciary simply because judges 

exercise their authority in solitude." 714 F. Supp. at 520.

The concurrence attempts to shore up its argument that 

there can be no dilution of votes for the district judge 

positions in the instant case by asserting that the independent 

nature of the trial judge is integral to the linking of 

jurisdiction and elective base. The concurrence argues that

Texas has structured its government such that it 
wields judicial power at the trial level through trial 
judges acting separately, with a coterminous or linked 
electoral and jurisdictional base, each exercising the sum 
of judicial power at that level, and all with review by 
courts acting collegially. We are persuaded that, 
because the fact and appearance of independence and 
fairness are so central to the judicial task, a state may



- 157a -

structure its judicial offices to assure their presence 
when the means chosen are undeniably directly tailored 
to the objective. The choice of means by Texas here - 
- tying elective base and jurisdiction — define the very 
manner by which Texas’ judicial services are delivered 
at the trial court level. They define the office. Nothing 
in the Voting Rights Act grants federal courts the power 
to tamper with these choices.

Concurring Opinion at 31-32. Essentially, the concurrence 

argues that the union of elective base and jurisdiction defines 

the very nature of the Texas district judge position. Having 

posited the Texas office of district judge, the concurrence 

concludes that there is "compelling necessity sufficient to 

overcome the strict scrutiny of state acts impinging upon a 

fundamental interest." Id. at 32. The concurrence’s 

assertions, however, are contrary to the realities of the Texas 

system. Any modification in the elective base of a judicial 

district will not destroy the essence of the district judge 

position any more than have the persistent modifications in 

the jurisdiction of Texas district courts. It is inconceivable 

that the remedial imposition of a non-dilutive electoral 

scheme would have a more than negligible effect on the



- 158a -

method by which judges exercise their authority. The 

concurrence cites no evidence—because there is none—that the 

very nature of the judicial office will be irreparably damaged 

by a modification in the elective base. In the absence of 

such evidence, it can hardly be said that the continued 

unmodified union of elective base and jurisdiction is a 

"compelling" state interest which militates against the 

application of the Voting Rights Act.

Undeterred by the obvious irrelevance of the acclaimed 

union between elective base and jurisdiction, the concurrence 

urges an additional state interest against the application of 

the Voting Rights Act—the appearance of judicial 

impartiality. The concurrence argues that the appearance of 

impartiality is a defining element of Texas’ district 

judgeships. Again, the concurrence’s attempts to 

manufacture a "compelling" state interest belie its 

desperation to achieve a result that would not require the 

displacement of the present electoral scheme. The fact that



- 159a -

Texas currently elects judges from county-wide areas in 

order to promote the appearance of impartiality speaks to the 

state’s interest in retaining the current system; it does not 

speak to the very definition of the official post. The interest 

in retaining an appearance of impartiality is a factor which 

may be considered when, pursuant to Gingles, the totality of 

the circumstances are examined to determine if a Section 2 

violation exists. However, this factor—the appearance of 

impartiality—is absolutely irrelevant to the preliminary 

question o f the applicability o f Section 2.

The instant case reveals an electoral scheme which is 

"discriminatory but corrigible."21 Each county elects three 

to fifty-nine district court judges. In each county, all judges 

have the same authority and exercise the same responsibility. 

With the exception of specialty courts, all judgeships are 

essentially fungible; within each specialty, the judgeships are

While creating smaller districts exists as a potential means 
to remedy impermissible vote dilution, it is not an exclusive remedy. A 
legislature is at liberty to implement any electoral system which will 
alleviate vote dilution.



- 160a -

also fungible. Section 2 requires that once correctable vote 

dilution has been established, it must be eradicated by the 

implementation of a plan which will "completely remedy"22 

the violation by "fully provid[ing an] equal opportunity for 

minority citizens to participate and to elect candidates of 

their choice." S. Rep. at 31.

The State’s Interest in Retaining 
the Current System

The defendants argue that elections for trial judges 

present strong state interests in retaining an at-large election 

system. Even if this contention has merit, the State’s 

asserted interests are relevant only to the inquiries of 

whether plaintiffs have proven a Section 2 violation under 

the totality of the circumstances and, if so, what remedy 

would be most appropriate to alleviate the dilution of 

minority voting strength, while intruding on state interests 

only to the extent necessary to accomplish the task.

In Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)

22 Dillard, 831 F.2d at 252.



- 161a -

(en banc), aff’d sub nom. East Carroll Parish School Board 

v. Marshall, 424 U.S. 636 (1976) (per curiam), this Court 

set forth a non-exclusive list of factors to be examined when 

applying the totality of the circumstances test.23 In Gingles, 

the Supreme Court reaffirmed the totality of the 

circumstances approach to a vote dilution claim. In doing 

so, the Supreme Court noted that the "factors were derived 

from the analytical framework of White v. Regester ... as 

refined and developed by the lower courts, in particular by 

the Fifth Circuit in Zimmer...." Gingles, 478U.S. at36n.4 

(citations omitted). The Supreme Court went further than 

the mere application of the totality test, however, and 

established a three-part foundation for the proof of a Section

23 The factors include (1) the history of discrimination in the
state; (2) the extent to which voting is polarized by race; (3) the 
existence of practices or procedures which enhance the opportunity for 
discrimination; (4) whether minority groups have been denied access to 
a candidate slating process; (5) the existence and extent of any socio­
political vestiges of discrimination; (6) whether political races are 
characterized by overt or covert racial appeals; and (7) the extent to 
which minority groups have been elected in the jurisdiction. In addition, 
the legislative history of the Act instructs that an inquiry into the 
responsiveness of the elected officials to minority needs and the 
legitimacy of the state’s asserted reasons for maintaining the existing 
system may provide additional insight.



- 162a -

2 vote dilution claim. The minority group must demonstrate 

first that it is sufficiently large and geographically compact 

to constitute a majority in a single-member district; second, 

that the minority is politically cohesive; third, that the 

majority votes sufficiently as a bloc to usually defeat the 

minority’s preferred candidate. Id. at 50-51.24 Once the 

plaintiffs have satisfied these three threshold requirements, 

as they did here, the district court proceeds to the totality of 

the circumstances inquiry.

The concurrence in the instant case, however, totally 

ignores the plaintiffs’ successful compliance with the Gingles 

three-part foundation showing. It is by this ruse that the 

concurrence never reaches the federal district court’s 

treatment of the vote dilution factors based on its per se 

exclusion of at-large elections for trial judges from the scope

Unless these threshold Gingles factors are established, "the 
use of multimember districts generally will not impede the ability of 
minority voters to elect representatives of their choice." Gingles, 478 
U.S. at 48.



- 163a -

of Section 2(b).25 It must now be apparent that the 

concurrence’s fundamental basis for denying minority groups 

the opportunity to challenge their exclusion from the process 

of judicial self-government is simply that the concurrence 

finds the concept of subdistricting unappealing as a proposed 

remedy. The only legitimate point at which to weigh this 

factor, however, is at the proof and remedy stages, when the 

countervailing factors of voting discrimination, as initially

In holding that the current at-large scheme for electing 
Texas district court judges violates Section 2, the federal district court 
made numerous specific factual findings regarding the Gingles threshold 
factors as well as the Senate Report, or Zimmer, factors. For purposes 
of this dissent, it need not be decided whether the district court correctly 
determined these factual issues. It should be noted and flagged at this 
point, however, that the trial record is replete with evidence of an 
inescapable reality: minorities in the challenged Texas districts are
seldom ever—indeed, are only with great rarity-able to elect minority 
candidates to any of the at-large district court judge positions available 
in the districts.
It is necessary to indicate that this writer would not affirm the interim 
remedial portion of the district court’s order in toto. Specifically, I am 
constrained to conclude that the district court acted beyond the scope of 
its remedial powers by ordering that judicial elections be nonpartisan. 
The district court’s order fails to defer to a political choice of the State 
of Texas, a choice which was not even challenged by the plaintiffs in the 
instant case. The district court gave no explanation for rejecting the 
system of partisan elections. No evidentiary hearing was held on the 
issue, and no factual findings were made. The equity powers of the 
district court neither encompass nor justify the federal district court’s 
actions; the district court should have deferred to the State’s policy 
choice for partisan elections as expressed in its statutory scheme.



- 164a -

determined by the district court — including, in particular, 

the plaintiffs’ inability to elect their preferred candidates -- 

may be fully taken into balance.

Similarly, the State’s interest in retaining an at-large 

election scheme is a factor to be weighed by a court applying 

the totality test only after the existence of the threshold 

Gingles factors has been determined.26 In the instant case, 

the State has not articulated so compelling an interest in 

retaining the existing electoral scheme that the dilution of 

minority votes should go unremedied.27

When assessing the point at which a state’s articulated 

interest in retaining the current at-large scheme should be 

considered, the Supreme Court’s acknowledgment that the

The current administration endorses this approach. In an 
amicus brief filed in the instant case, the United States has argued that 
the proper approach is to consider, first, whether plaintiffs have met the 
three-part test outlined in Gingles. Assuming that this has been done, it 
is then appropriate to consider other factors set out in Gingles, and to 
weigh in particular the importance of the state’s interest in the electoral 
system under attack.

United States Brief at 13.

No opinion is expressed whether such a situation may ever 
be demonstrated.



- 165a -

Senate factors are secondary considerations, behind the three- 

part Gingles test, is of particular relevance.28 Specifically, 

the Supreme Court noted that, while the Senate Report 

factors "may be relevant to a claim of vote dilution through 

submergence in multimember districts, unless there is a 

conjunction of the [three threshold factors], the use of 

multimember districts generally will not impede the ability 

of minority voters to elect representatives of their choice." 

Gingles, 478 U.S. at 48. From this language, it is beyond 

dispute that the Supreme Court has articulated a legal test for 

vote dilution claims which anticipates a threshold showing 

only of geographical compactness, political cohesion, and

The concurrence, by treating considerations such as the 
appearance of impartiality and venue rules as definitive elements of the 
relevant elected post, has avoided the need to analyze at what point a 
state’s asserted interest in retaining the existing scheme should be 
considered. As has already been discussed in footnote 16, these 
considerations are not part and parcel of the trial judge post.
What the concurrence has done, instead of examining the State’s interest 
in retaining the existing scheme, is to consider the State’s interest in not 
implementing a voting scheme similar to that imposed under the interim 
plan (subdistricting) in order to alleviate any potential vote dilution. This 
approach positions the remedy squarely in a place of incorrect 
prominence and foregoes any serious inquiry into the existence of 
impermissible vote dilution. Stated simply, the concurrence has placed 
the cart before the horse.



- 166a -

white bloc voting sufficient usually to prevent election of the 

minority’s preferred candidate.29

The conclusion that a state’s interest is properly 

considered in the second phase of the Gingles analysis is 

bolstered by the Senate Report’s indication that the list "of 

typical factors is neither comprehensive nor exclusive. 

While the enumerated factors will often be pertinent to 

certain types of § 2 violations, particularly to vote dilution 

claims, other factors may also be relevant and may be 

considered." Id. at 45 (footnote omitted). The Report 

stresses that no particular factors need be proved and neither 

the existence nor the non-existence of a majority of factors 

dictate the outcome. Rather, the determination of whether 

the political processes are equally open depends on an 

evaluation of the relevant political process. It is during this

By articulating a threshold test which examines three 
characteristics of the minority group and its voting patterns, the Supreme 
Court has implicitly stressed the proposition that the Voting Rights Act 
is primarily concerned with the efficacy of the minority vote and not with 
the function or characteristics of the elected post.



- 167a -

examination of minority access to the relevant jurisdiction’s 

political process that a state’s interest in retaining the 

existing system is particularly relevant.

Congress most certainly did not intend to frustrate the 

important state interest in a fair and impartial judiciary; at 

the same time, however, Congress expressed the affirmative 

intent to replace unlawfully dilutive electoral systems with 

ones in which minorities would have a full and fair 

opportunity to participate. In enacting Section 2(b) of the 

Voting Rights Act in 1982, it is clear that Congress was 

continuing the struggle to make the Act responsive to the 

needs and aspirations of the nation—to make absolutely 

certain that the fundamental right of minorities to cast an 

effective vote for candidates of their choice was not 

abridged.

For these reasons, it is imperative that a court tirst 

proceed to determine whether the Gingles three-part test has 

been met; only then should a  court proceed to consider,



- 168a -

under the "totality of the circumstances," other relevant 

factors,30 including the state interest in maintaining an at- 

large election system, to determine whether, on balance, the 

plaintiffs have proved a Section 2 violation.31

For example, one of the two " [additional factors that in 
some cases have had probative value" in the Senate Report’s illustrative 
list of totality of the circumstances factors is "whether the policy 
underlying the state or political subdivision’s use of such voting 
qualification, prerequisite to voting, or standard, practice or procedure 
is tenuous." S. Rep. No. 417, 97th Cong., 2d Sess. 29, reprinted in 
1982 U.S. Code Cong. & Admin. News 177, 207. In the proceedings 
below, the district court considered this factor at the appropriate point - 
- during a trial on the merits. The district court was not persuaded by 
defendants’ defense that at-large elections served a critical state interest. 
The court determined that "[wjhile the Court does not find that the 
present system is maintained on a tenuous basis as a pretext for 
discrimination, the Court is not persuaded that the reasons offered for its 
continuation are compelling." District Court Opinion at 77.

Because of my view that the State has not articulated a 
substantial interest in retaining the existing at-large system of electing 
district judges, the question of how much weight this factor should be 
afforded is not addressed. As the Supreme Court has indicated, 
"recognizing that some Senate Report factors are more important to 
multimember district vote dilution claims than others ... effectuates the 
intent of Congress." Gingles, 478 U.S. at 49 n. 15. It is my firm 
believe, however, that under no circumstances should the State’s interest 
outweigh the following factors: the extent to which minority group
members have been elected to office in the jurisdiction and the extent to 
which voting in the elections of the jurisdiction has been racially 
polarized. This belief is based on my acknowledgement of the Supreme 
Court’s indication that "[ujnder a ’functional’ view of the political 
process mandated by § 2 ... the most important Senate Report factors 
bearing on § 2 challenges to multimember districts are [these factors.]" 
Id. Additionally, placing greater weight on the factors which examine 
minority success at the polls and racial voting patterns furthers the 
purpose of the Act to "correct an active history of discrimination ...[and]



- 169a -

In the instant case, the State asserts the following 

interests as justification for retaining its dilutive electoral 

system: (1) ensuring popular accountability by making

judges’ jurisdiction coterminous with the electoral 

boundaries; (2) avoiding bias caused by small electoral 

districts; and (3) preserving the administrative advantages of 

at-large elections, including the use of specialized courts. 

The concurrence would not only accept the existence of these 

interests, but would characterize them as compelling.

Accountability: The State has advanced the argument 

that at-large elections provide greater accountability of the 

judge to county voters. The Chief Justice of the Texas 

Supreme Court testified that judges are "accountable to those 

people who can be hailed [sic] into their court," because 

people who feel they have been wronged by a particular 

judge may vote against that judge in the next election. 

Ostensibly, the district court’s interim plan eliminates

deal with the accumulation of discrimination." S. Rep. at 5.



- 170a -

effective accountability. The concurrence notes that under 

the district court’s interim plan, for example, a minority 

litigant has "a 98.3% chance of appearing before a judge in 

whose election he had not been able to vote." Concurring 

Opinion at 44.

The concurrence’s argument that judges must be 

"accountable" to potential litigants is an affront to the 

judiciary of the State of Texas. An honorable judiciary 

separated from the influence of others is "indispensable to 

justice in our society." Canon 1 of the Texas Code of 

Judicial Conduct (emphasis added). District judges are 

charged to apply the law, not respond to the expectations of 

litigants. To say that a district judge must be accountable to 

litigants is to suggest the unthinkable of great numbers of 

highly respected, dedicated public servants. Not only is such 

a suggestion misleading to a public already mystified by the 

bench and bar, it is offensive to those who have occupied 

distinguished positions as Texas state district judges in the



- 171a -

past, as well as those who now occupy such positions.

Even if "accountability" were a legitimate state interest, 

it is not a compelling reason to justify the current dilutive 

system. Under the existing system, it is highly probable that 

a case will be heard outside the county in which a litigant 

lives. In such a case, at least one—and probably both—of the 

parties will be appearing before a judge who was elected by 

a population which does not include that litigant. The 

argument that judges must remain "accountable" to potential 

litigants in their courts (nauseous as this straw man specter 

may be) pales in light of the current Texas venue rules, 

which frequently require that an out of county resident 

appear before a judge for whom the litigant neither cast a 

vote for nor against. Even further, in Texas, parties can 

agree to give a district court venue over a case not arising in 

the county. Nipper v. U-Haul Co., 516 S.W.2d 467 (Tex. 

Civ. App.-Beaumont 1974, no writ).

The concurrence argues that Texas’ elaborate system of



- 172a -

venue rules supports the argument that the State has 

demonstrated a concern for inter-county bias. However, any 

interest in ensuring accountability and the appearance of 

impartiality which may be suggested by the Texas venue 

scheme is lessened considerably by Texas’ characterization 

of venue challenges as dilatory pleas which, if not raised 

initially, are waived. In light of such a practice, the state 

interest cannot be said to be compelling.

Aside from the complexities of the Texas venue rules, 

there are many other occasions when a party may appear 

before a judge elected by the residents of another county. 

For example, district court judges are frequently called into 

other counties to help with docket control. Despite the fact 

that the county’s residents have no recourse against this out- 

of-county judge at the ballot box, Texas courts have upheld 

the constitutionality of this practice. See, e.g. , Reed v. 

State, 500 S.W.2d 137 (Tex. Crim. App. 1973). Nor is the 

practice of electing judges from subdistricts without



- 173a -

precedent in the state. Texas Justice of the Peace courts, 

lower level trial courts with jurisdiction over an entire 

county, are elected from sub-county precincts.32 Thus, a 

litigant often may appear before a justice of the peace who 

lives in the same county as the litigant, but not the same 

judicial district.

Additionally, Texas authorizes the use of retired or 

senior state district judges, who wield all the powers of their 

elected and active peers. Such a judge was, of course, at 

one time elected to that office. Upon retirement, however, 

that judge while sitting is vested with the complete authority 

of the office and is not subject to election or reelection. 

Simply stated,- Texas’ retired or senior judges contribute

In Martin v. Allain, 658 F. Supp. 1183, 1195-96 (S.D. 
Miss. 1987), the court adopted a single-member district remedy for some 
Mississippi trial judges who were elected at-large in racially dilutive 
elections, after finding that Mississippi already elected some other judges 
from areas smaller than the court’s jurisdiction. The court there stated:

Although the state has adopted the policy of the post 
system of electing judges in multi-member judicial districts above 
the justice court level, it long ago adopted the policy of single­
member electoral districts for justice court judges. The state also 
has the policy of judges deciding cases which may originate outside 
their election districts.



- 174a -

greatly to the reduction of court dockets, but they are no 

longer accountable in any fashion to the electorate. See Tex. 

Gov’t Code Ann. §§ 75.001 - .002 (Vernon 1988).

There seems to be no basis in fact for the State’s 

contention that county-wide accountability is essential to the 

proper selection of district judges, or that any measure of 

electoral accountability is significantly defeated by dividing 

the county into smaller electoral districts.

A Fair and Impartial Judiciary: Both the State and

intervenors put on witnesses who testified that the creation 

of subdistricts was inadvisable because it could lead to 

perceptions of judicial bias and undue influence by special 

interests. Specifically, the witnesses testified that judges 

elected from smaller districts would be more susceptible to 

undue influence by organized crime or to pressure by other 

political sources including special interest groups.

The concurrence accepts this argument, and urges in 

addition that subdistricting "would change the structure of



- 175a -

the government because it would change the nature of the 

decision-making body and diminish the appearance if not the 

fact of judicial independence."33 Concurring Opinion at 44. 

The concern that a judge elected from a small electorate is 

more susceptible to improper pressure, however, has not 

prevented or impeded Texas from creating judgeships in 

counties with relatively small populations. Texas has 386 

district judges. A significant number of these judges are 

elected from districts of less than 100,000 people; indeed, in 

some districts, as few as 24,000 to 50,000 people constitute 

the relevant electorate. Even if Harris County (with a 

population of 2.5 million people) were divided into as many 

as fifty-nine subdistricts (the number of district courts of 

general and special jurisdiction), each district would contain

Once again, the concurrence’s asserted concern is premised 
on the anticipated remedy — subdistricting. While the Supreme Court, 
in Gingles, did indicate that a "single-member district is generally the 
appropriate standard against which to measure minority group potential 
to elect," it did not mandate the imposition of subdistricts to remedy 
every instance of illegal vote dilution. The concurrence, by erroneously 
factoring in, at the liability phase, concerns which may never be borne 
out, refuses to properly acknowledge the intent of the Voting Rights Act.



- 176a -

approximately 41,000 people. If Dallas County were divided 

into thirty-seven subdistricts, each subdistrict would have 

approximately 42,000 people. In short, even if judicial 

districts in large counties were subdivided, the resulting 

subdistricts are unlikely to be smaller than many existing 

judicial districts in Texas. Consequently, the ostensible 

state interest against a small electorate in judicial districts 

has not been shown.

Furthermore, Texas law does not reflect the witnesses’ 

fear that subcounty districts are inconsistent with the 

existence of a fair and impartial judiciary. Justices of the 

Peace are already elected from areas smaller than a county; 

in a very extended number of counties, these districts contain 

smaller populations than the hypothetical subdistricts of 

Dallas and Harris counties discussed above. For example, 

the Texas Constitution permits counties with as few as 

18,000 people to be divided into four justice of the peace 

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



- 177a -

The foregoing is sufficient to demonstrate the state has 

no compelling interest in retaining county-wide elections. 

Even if it were not, it is plainly dispositive that the Texas 

Constitution was recently amended to give voters the option 

of electing district judges from subdistricts. See Tex. Const, 

art. 5, § 7a(i). That no county has yet to implement such an 

elective scheme does not alter the reality that such a change 

already has the blessing of the state legislature. In light of 

this constitutionally authorized electoral scheme, the State 

cannot now say that it has a compelling interest in not 

electing district judges from an area smaller than a county.

Considering the precedent for the creation of judicial 

subdistricts, the size of the potential subdistricts, and the 

lack of any real indication that perceived impropriety would 

result,34 the state’s asserted interests do not support the 

continuation of its present dilutive electoral system.

34 It is also notable that one judge, an intervenor in the instant
case, testified that he was not aware of any allegations of unfairness or 
suggestions that white litigants were not treated fairly by minority judges 
elected from subcounty Justice of the Peace precincts.



Administrative Advantages: The State has cited the

administrative advantages of the present system, including 

the county-wide retention of records, the random assignment 

of cases to judges within the county and county-wide jury 

empaneling. There is no reason why an electoral scheme 

utilizing subdistricts cannot retain each and every one of 

these administrative features; any remedy which might be 

imposed in this case need not require that a judge elected 

from a subcounty area have jurisdiction only over that area. 

In fact, the interim plan fashioned by the district court in 

the instant case specifically retained all of the foregoing valid 

administrative features. Furthermore, even if retention of 

certain administrative conveniences were not possible under 

a remedial scheme, that fact cannot justify the continuation 

of an otherwise racially dilutive electoral process. See 

Westwego Citizens for Better Gov’t v. Westwego, 872 F.2d 

1201 (5th Cir. 1989).

The concurring opinion attempts to place great weight

- 178a -



- 179a -

on the interest of the State in retaining the system of 

"specialty" courts. But there is absolutely no reason why a 

remedy would be unable to accommodate this interest by 

retaining these courts of specialized jurisdiction.35 Most 

counties which utilize the administrative convenience of 

specialty courts have several of each court; consequently, a 

remedy could be formulated which retains the use of such 

courts.36 It cannot be gainsaid that the State has almost 

unlimited flexibility to devise a remedial plan which retains 

specialty courts and all of the other important government 

interests while eradicating the dilution of minority voting 

strength. It is critical that it be understood that the history, 

the intent, the text and spirit of the Voting Rights Act in 

general and Section 2 in particular mandates the

It should be noted that the Texas Constitution limits the 
State’s interest in establishing specialty courts; the state supreme court 
has ruled that the legislature may not disturb state courts’ jurisdiction.

Because the district court, in its interim plan, indicated the 
belief that a remedy could be created which allows the substantial use of 
the Texas system of specialty courts, District Court Order at 7, this 
writing expresses no view on whether or not a state’s interest would be 
substantially stronger if such a remedy could not be devised.



- 180a -

implementation of just such a remedial electoral scheme.

Summary: Taken together, the State’s attempt to

articulate its interest in retaining the current voting system 

pales when compared to the clear purpose of the Voting 

Rights Act. The State has not shown an inalterable policy 

of not subdividing districts, nor has it shown that judges 

would be less accountable to the electorate if elected from a 

subdistrict. Further, there is no indication that any 

impropriety, real or perceived, on the part of judges elected 

from smaller units would in fact occur. Finally, while the 

State may indeed have a legitimate interest in retaining 

specialty courts, the State has failed to demonstrate why that 

interest cannot be effectuated in an electoral scheme which 

does not dilute minority voting strength.

m.
CONCLUSION

"The Voting Rights Act was designed by Congress to 

banish the blight of racial discrimination in voting, which



- 181a -

has infected the electoral process in parts of our country for 

nearly a century."37 It is my most earnest conviction that the 

majority and concurrence have each chosen erroneous 

methods to examine the particular specimen of vote dilution 

asserted by the plaintiffs and found by the district court here. 

The true method that both have missed has been obscured by 

their failure to recognize the true meaning of the Voting 

Rights Act, and by their failure to comply with the strictures 

of Gingles. The majority, abandoning established precedent, 

has determined that Section 2 of the Voting Rights Act does 

not apply to any judicial elections. The concurrence has 

looked to the function of the elected official, and the duties 

and powers of the official once in office, to conclude that, 

because trial judges act independently, at-large elections 

cannot result in minority vote dilution. There is simply no 

support in the words of the Act, in the legislative history of 

Section 2, nor in logic for either the majority or the

37 South Carolina v. Katzenbach, 383 U.S. 301, 308, 86
S.Ct. 803, 808, 15 L.Ed.2d 769 (1966).



- 182a -

concurrence’s embrace of such result-oriented 

determinations.

The position of each Administration has been that the 

Voting Rights Act applies to judicial elections. The current 

Administration goes even further and strongly urges that 

Section 2(b) was violated by the electoral scheme that was 

utilized here to elect certain Texas district court judges.

The Voting Rights Act is in no way concerned with the 

names or positions listed on the ballot. The United States 

Congress, by enacting the Voting Rights Act, has instructed 

that this and every other court focus on the voter, 

particularly the minority voter, and the efficacy of each vote 

cast, so as to ensure that minorities are not denied an equal 

opportunity to participate effectively in the democratic 

process.

I respectfully dissent.



183a

UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION

Filed November 08, 1989 
CIVIL ACTION NO. MO-88-CA-154

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), COUNCIL #4434
et ah,

Plaintiffs,

AND
HOUSTON LAWYERS ASSOCIATION, et ah, 

Plain tiff-Intervenors,

v.

JIM MATTOX, et al.,
State Defendants

AND
JUDGE SHAROLYN WOOD AND JUDGE F. 
HAROLD ENTZ.

MEMORANDUM OPINION AND ORDER



184a

The above-captioned cause came on for trial before the 

Court on September 18, 1989, This suit was brought by 

named individual Plaintiffs and members of the League of 

United Latin American Citizens ("LULAC"), Council #4434, 

LULAC Council #4451 and LULAC Statewide. Plaintiffs are 

Mexican-American and Black citizens of the State of Texas. 

Plaintiffs seek (1) a Declaratory Judgment that the existing at 

large scheme of electing State District Judges in nine (9) 

target counties of the State of Texas violates Plaintiffs’ civil 

rights by unconstitutionally diluting the voting strength of 

Mexican-American and Black electors in violation of Section 

2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 

§ 1973 (West Supp. 1989) ("Voting Rights Act")1; (2) a

1 Section 2 provides in pertinent part:
"(a) No voting qualification or prerequisite to voting or 
standard, practice, or procedure shall be imposed or 
applied by any State or political subdivision in a manner 
which results in a denial or abridgement of the right of 
any citizen of the United States to vote on account of 
race or color ...

"(b) A violation of subsection (a) of this section is 
established if, based upon the totality of circumstances, 
it is shown that the political processes leading to



185a

permanent injunction prohibiting the calling, holding, 

supervising or certifying any future elections for District 

Judges under the present at large scheme in the target areas; 

(3) formation of a judicial districting scheme by which 

District Judges in the target areas are elected from districts 

which include single member districts; and (4) costs and 

attorneys’ fees.

This case really had its beginning in 1965, when 

Congress passed the Voting Rights Act and it was signed by 

President Johnson. This Act, as everyone knows, had as its 

purpose "to rid the country of racial discriminating in 

voting."

nomination or election in the State or political subdivision 
are not equally open to participation by members of a 
class of citizens protected by subsection (a) of this section 
in that its members have less opportunity to participate 
in the political process and elect representatives of their 
choice. The extent to which members of a protected 
class have been elected to office in the State or politi­
cal subdivision is one circumstance which may be 
considered: Provided, That nothing in this section 
establishes a right to have members of a protected class 
elected m numbers equal to their proportion in the 
population."

(Emphasis in the original.)



186a

The next chapter in the saga was the holding in 

Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988), cert, 

denied, sub nom, Chisom v. Edwards, 109 S.Ct. 310 (1989) 

(<Chisom I). In Chisom I Judge Johnson held: "Minorities 

may not be prevented from using Section 2 [of the Voting 

Rights Act] in their efforts to combat racial discrimination in 

the election of state judges; a contrary result would prohibit 

minorities from achieving an effective voice in choosing those 

individuals society elects to administer and interpret the law."

Having concluded, as will later be pointed out in 

formal Findings of Fact and Conclusions of Law, that there 

is racial discrimination in the election of state judges in some 

counties of the State of Texas, and the law plainly being that 

such discrimination is prohibited by the Voting Rights Act, 

this opinion should not come as any surprise to the attorneys 

or judges of this State.

Mr. Justice Holmes, in Southern Pacific Co. v. 

Jensen, 244 U.S. 205, 221, in dissenting, said:



187a

I recognize without hesitation that judges do and must 
legislate, but they can do so only interstitially; they 
are confined from molar to molecular motions.

This dissent has been on the books for 83 years and,

while this Court recognizes that some judges may legislate,

this Court is extremely reluctant to do so. Legislation should

be done by legislators. This Court has determined that our

current system, as it applies to some counties, violates Section

2 of the Voters Rights Act. Some fixing has to be done,

because the current system is broken.

In writing this opinion, I am cognizant of the fact that

our Texas Constitution will need to be amended. Legislators

should seriously consider nonpartisan elections for District

Judges. As Chief Judge Tom Phillips pointed out in his

testimony, it really makes no sense that judges are selected

because of their political affiliation, A judge should decide

matters before him without regard to partisan politics. It

speaks well of our current judiciary that our sitting judges



have been able to make decisions without regard to whether 

the judge is Republican or Democrat.

As long as judges, however, are selected on a partisan 

ballot, there will be some rancor and enmity between the 

successful and the unsuccessful candidate. The loser is going 

to have regrets by virtue of the fact that she or he did not 

secure enough votes in an election. It makes no sense to 

believe that a judge is selected because the top of the ticket is 

either weak or strong. This Court felt the animosity between 

certain judges in the courtroom. There is no need for this. 

Certainly judicial reform will not make all candidates live by 

the Golden Rule, but it is a step in the right direction. It was 

brought to the Court’s attention that perhaps a majority of the 

voters in a General Election, and for that matter, in Primary 

Elections, have no idea of the qualification of a judge for 

whom they vote. Their vote is cast because a straight ticket 

is being cast, and a straight ticket includes judicial nominees 

from a particular political party.

188a



189a

If the Constitution is to be changed, would it not make 

sense to have judges elected when members of school boards 

or city councils are elected? These races are traditionally 

nonpartisan, and people going to the polls to vote for school 

trustees or mayors have for the most part some idea of the 

qualifications of the candidates. Judges could be selected at 

the same time in order to make sure that one was not getting 

votes simply because one is Democrat or Republican. 

Minority voters could go to the polls with their heads held 

high and with some realization that their preferred candidate 

either would be or could be elected.

Certainly, it is not Court’s intention to tell the 

legislature how its job is to be accomplished. Single member 

districts may or may not be the answer if we are to continue 

to have partisan elections. There may be easier and better 

solutions that can evolve through the legislative process.

These are troubled waters. One hesitates to plunge into 

such waters, because our system of selecting judges has, for



190a

the most part, served us well for many many years. Our 

Congress, however, in 1964, made changes. Our Courts have 

construed those changes, and it is now necessary to move 

forward so that minorities can realize the rights legally 

bestowed upon them, and which have, in the past, been 

denied.

THE PRESENT AT-LARGE SYSTEM 

This litigation challenges the system of electing 172 

District Court Judges at-large from areas composed of entire 

counties.2

The present system of electing District Court Judges 

in Texas requires that each judge be elected from a District 

no smaller than a county. Tex. Const. Art. 5 § 7a(i) (Vernon 

Supp. 1989).3 Each Judge serves a term of four (4) years. 

Tex. Const. Art. 5 § 7 (Vernon Supp. 1989). Candidates for

2 The counties at issue are: Harris, Dallas, Tarrant, Bexar, Travis, 
Jefferson, Lubbock, Ector and Midland.

3 This system is "at-large" because judges are elected from the entire 
county rather than from geographic subdistricts within the county.



191a

District Judge must be citizens of the United States and the 

State of Texas, licensed to practice law in this State and a 

practicing lawyer or Judge of a Court in this State, or both 

combined for four years. Id. Candidates must have been a 

resident of that election district for at least two (2) years and 

reside in that district during his or her term of election. Id. 

District Court Judges must be nominated in a primary election 

by a majority of the votes cast. Tex. Election Code § 

172.003 (Vernon 1986). Each candidate’s political party is 

indicated on the election ballot. Judicial candidates are 

usually listed far down on an election ballot. They run for 

specifically numbered courts and must secure a plurality of 

the vote in the general election to win a judicial seat. 

METHODOLOGY. DATA AND ELECTIONS ANALYZED 

Statistical analysis is the common methodology 

employed and accepted to prove the existence of political 

cohesiveness and racial bloc voting necessary to establish a



192a

voter dilution case.4 Ecological regression analysis3 and 

extreme case analysis6 were the types of statistical analysis 

used by Plaintiffs5 experts in the present case.7

4 In Thornburg v. Gingles, 479 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 
25 (1986), Justice Brennan held that racial bloc voting can be established 
by a type of abstract statistical inquiry called "bivariate regression 
analysis." This analysis correlates the race of the voters and the level of 
support given to the candidate. Id. at 61. If a candidate is supported by 
a large proportion of the minority group yet does not win, the vote is 
declared to be racially polarized in a legally significant sense and racial 
bloc voting is taken to be established.

All variables beside race of the voters and support given the 
candidates that might also explain voters’ choices are expressly excluded 
from consideration. In Justice Brennan's view, "[i]t is the difference 
between the choices made by [minorities] and whites - not the reasons for 
that difference - that results in [minorities] having less opportunity than 
whites to elect their preferred representatives." Id. at 63.

5 Ecological regression analysis shows the relationship between the 
ethnic composition of voting precincts and voting behavior, i.e., which 
candidate receives how many votes from each race/ethnic group. This 
type of analysis incorporates the use of a coefficient of correlation or 
Pearson r, accompanied by an estimate of the statistical significance of r, 
the coefficient of determination and the regression line. See Overton v. 
City of Austin, 871 F.2d 529, 539 (5th Cir. 1989).

6 Extreme case or homogenous precinct, analysis looks to 
homogenous precincts in which almost all of the people of voting age 
belong to one ethnic group. If race/ethnicity reflects voting behavior, then 
election results in predominately minority precincts should differ from 
results in predominately Anglo precincts.

7 The majority which agreed with Justice Brennan that voter dilution 
was demonstrated by the impact or results of the Zimmer factors and tne 
Gingles threshold analysis deserted him when he came to the proof of the 
second and third Gingles factors.



193a

The data used by Plaintiffs to support their statistical 

analysis varied according to the type of information available 

to them since the 1980 Census. Plaintiffs used voting age 

population data by census tract to establish the Gingles 1 

factor of size and geographic compactness. Plaintiffs used a 

variety of data sets to establish the Gingles 2 cohesiveness 

and Gingles 3 white bloc voting factors depending on 

information available in the County in question.

Justice White maintained that under Justice Brennan’s test there 
is racially polarized voting whenever a majority of whites vote differently 
from a majority of blacks, regardless of the race of the candidates. 
Gingles, supra, at 83. To illustrate his disagreement, Justice White 
posited the hypothetical which assumed an eight-member multimember 
district that was 60% white and 40% black, the blacks being 
geographically located so that two safe black single-member districts could 
be drawn. Justice White further assumed that there were six white and 
two black Democrats running against six white and two black Republicans. 
Justice White wrote, "[ujnder Justice Brennan’s test, there would be 
polarized voting and a likely § 2 violation if all the Republicans, including 
the two blacks, are elected, and 80% of the blacks in the predominately 
black areas vote Democratic." Id. at 83. Justice White concluded that 
such analysis was "interest-group politics rather than a rule hedging against 
racial discrimination." Id. at 83.

Justice O’Connor and the three other Justices for whom she wrote 
did not reject bivariate regression analysis solely to establish political 
cohesiveness and assess the minority groups prospects for electoral 
success. Id. at 100. However, Justice O’Connor did reject Justice 
Brennan’s position that evidence that explains divergent racial voting 
patterns is irrelevant.



194a

In Counties where Plaintiffs presented a case on behalf 

of Hispanics only, they relied on the percentage of Hispanic 

registered voters in voting precincts in any given year. These 

figures were based on Spanish surname counts done by the 

Secretary of State of Texas. In other instances, Plaintiffs 

used counts of Black and Hispanic totals or voting age 

population in each precinct of a particular county. When 

counts were not available, Plaintiffs based their analysis on 

1980 census information. In some counties, precincts retained 

the same boundaries reported in the 1980 census. 1980 

census data from precincts with unchanged boundaries were 

used in those counties. In several counties, Plaintiffs 

reconfigured precinct lines8 and used demographic data from 

these newly created precincts. When relying on census data, 

Plaintiffs calculated the number of non-minorities within

8 This process requires comparing new precinct maps with their new 
lines and census block maps that show racial composition of the blocks. 
This process is frequently used to update precinct data.



195a

precincts by subtracting the number of Hispanics and Blacks 

from the total number of persons within the precinct.

Plaintiffs’ experts only reviewed elections where a 

minority candidate opposed an Anglo. They preferred to 

analyze general elections, however primary elections were 

analyzed when no minority candidate made it past that stage 

of the electoral process.

The Supreme Court in Thornburg v. Gingles, supra, 

requires the analysis of several elections to determine if there 

is a pattern of voting related to race/ethnicity. In the present 

case, when there were District Court elections in a county in 

question in which a minority opposed an Anglo, Plaintiffs 

relied solely on analysis of District Court elections. In some 

Counties this included both general and primary elections. 

Where there were not enough such District Court elections 

other elections were analyzed. First, County Court elections 

in which minorities opposed Anglos were selected. Next, 

Plaintiffs turned to Justice of the Peace elections where the



196a

election district was at least as large as a city within the 

county at issue. Finally, if no relevant local judicial races 

occurred, Plaintiffs analyzed statewide judicial elections. See 

Testimony of Dr. Robert Brischetto.

All jurisdictional prerequisites necessary to the 

maintenance of the claims of the parties have been fulfilled. 

After reviewing the testimony and exhibits introduced at trial, 

as well as the arguments and authorities of counsel, the Court 

hereby enters the following Findings of Fact and Conclusions 

of Law pursuant to Federal Rule of Civil Procedure 52.

FINDINGS OF FACT 

INDIVIDUAL PLAINTIFFS 

1. The names and counties of residence of the ten 

(10) named individual Plaintiffs are as follows: (a) Christina 

Moreno - Midland; (b) Aquilla Watson - Midland; (c) Joan 

Ervin - Lubbock; (d) Matthew W. Plummer, Sr. - Harris; (e) 

Jim Conley - Bexar; (f) Volma Overton - Travis; (g) Gene 

Collins - Ector; (h) A1 Price - Jefferson; (i) Mary Ellen Hicks



197a

- Tarrant; and (j) Rev. James Thomas - Galveston. Each 

named Plaintiff is a citizen of the United States registered and 

qualified to vote in District Court elections in Texas. Except 

for Christina Moreno, who is Hispanic, each named Plaintiff 

Black.

ORGANIZATIONAL PLAINTIFFS

2. Plaintiffs LULAC #4434 and LULAC #4451 

are local chapters of the larger Statewide LULAC 

organization. Members of the LULAC Statewide organization 

reside in all of the counties challenged in this suit. Depo. of 

John Garcia. The organization is composed of both Mexican- 

American and Black residents of the State of Texas. The 

members of LULAC #4434 reside in Midland County. The 

members of LULAC #4451 reside in Ector County.

3. Plaintiff-Intervenor the Houston Lawyers 

Association ("HLA"), is an association of Black lawyers in 

Harris County. The participation of Plaintiff-Intervenor the



198a

Texas Black Legislative Caucus ("TBLC") is limited to the 

remedy stage of this litigation.

DEFENDANTS & DEFEND ANT-INTER VENORS

4. Defendants are sued in their official capacities 

only. Defendant Jim Mattox is the Attorney General of the 

State of Texas and charged with the responsibility of 

enforcing the laws of the State.

Defendant George Bayoud is Secretary of State 

of Texas. As such he functions as chief elections officer 

charged with administering the election laws of the State. 

Secretary Bayoud is substituted as a party in this litigation 

for former Secretary of State Jack Rains.

Defendants Thomas R. Phillips, Michael J. 

McCormick, Ron Chapman, Thomas J. Stovall, James F. 

Clawson, Jr., Joe E. Kelly, Robert M. Blackmon, Sam M. 

Paxson, Weldon Kirk, Jeff Walker, Ray D. Anderson,



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Leonard Davis and Joe Spurlock, II are members of the 

Judicial Districts Board9 created by Art. V. Section 7a of the 

Texas Constitution and Art. 24.911 et seq. of the Texas 

Government Code. The Judicial Districts Board is charged 

with reapportioning districts from which District Court Judges 

are elected.

Sitting District Court Judge Sharolyn Wood, 

127th District Court, Harris County and Judge Harold Entz, 

Jr., 194th District Court, Dallas County Intervened in their 

individual capacities as Defendants.10

9 Several members of the Judicial Districts Board were replaced by 
new members during the interim of this litigation. Michael J . McCormick 
replaced John F. Onion, Robert M. Blackman replaced Joe B. Evans and 
Jeff Walker replaced Charles Murray.

10 Thirteen District Court Judges from Travis County initially 
intervened as Defendants. The Court struck their intervention at their 
request.



200a

GINGLES THRESHOLD ANALYSIS 

Size and Geographic Compactness

5. Harris County. Harris County has the largest 

population among the nine target Counties in this case. 

Plaintiffs are proceeding only on behalf of Black voters in 

Harris County. With a total population of 2,409,544,“ its 

Black population is 473,698 (19.7%). There are 1,685,024 

people of voting age,11 12 with 305,986 (18.2%) voting age 

Black residents of Harris County. Plaintiffs’ Harris County 

("H") Exhibit 01.

There are fifty nine (59) State District Courts 

in Harris County. Black residents are concentrated in the 

North Central, Central and South Central sections of Harris

11 In each County, Plaintiffs rely upon the 1980 Census for total 
population of Blacks and Hispanics within the County.

12 For all Counties in this case, Plaintiffs relied on a computer print 
out of voting age populations prepared by the Data Center at Texas A&M 
University directly from 1980 U.S. Census tapes.



201a

County. H-04, p. 2, Map of Proposed Districts.13 Evidence 

was introduced that nine (9) Black single member districts of 

greater than fifty percent (50%) Black voting age population 

were possible. Id. at 1; Plaintiff-Intervenor Harris County 

("P-I H") Exhibits 2, 2a.

6. Dallas County. Dallas County is the second 

largest County involved in this case. Plaintiffs are proceeding 

only on behalf of Black voters in Dallas County. Dallas 

County has a total population of 1,556,549. Its Black 

population is 287,613 (18.5%). There are 1,106,757 people 

of voting age, with 180,294 (16%) voting age Black residents. 

Plaintiffs’ Dallas County ("D") Exhibit 01.

13 Plaintiffs drew districts in each County of approximately equal size 
based on the number of District Courts in the County. Plaintiffs 
calculated the size and number of precincts in each proposed district on the 
basis of both total population and voting age populations. This Court 
recognizes that the concept of "one man one vote" does not apply to the 
judicial elections. Chisom I, supra, at 1061. Accordingly, this Court’s 
analysis rests upon Plaintiffs’ calculation based upon voting age 
population. Plaintiffs drew each district on this basis under the assumption 
that each district should contain 1/n of the voting age population in the 
County, with n being the number of District Courts in the County. 
Plaintiffs’ Post Trial Brief at 11.



202a

There were thirty six (36) State District Courts 

in Dallas County at the time this case was filed. On 

September 1, 1989, the Texas Legislature created a thirty- 

seventh State Judicial District Court in Dallas County. Black 

residents are concentrated in the Central and South Central 

sections of Dallas County. D~04, p. 2, Map of Proposed 

Districts based on 36 District Courts. Evidence was 

introduced that seven (7) Black single member districts of 

greater than fifty percent (50%) Black voting age population 

were possible. Id. at 1, 3-9;14 Plaintiff-Intervenor Dallas ("P- 

I D") Exhibits 34. Plaintiff-Intervenors’ Exhibit 7 reflects 

that there are approximately 36 homogeneous precincts of 

90% Black population.

7. Tarrant County. Plaintiffs are proceeding only 

on behalf of Black voters in Tarrant County. Tarrant County

14 Proposed single member districts 1 & 3 barely meet the Overton 
majority -minority voting age population requirement. These proposed 
districts contain 51.33% and 52.05% black votmg age population 
respectively.



203a

has a total population of 860,880. The Black population of 

Tarrant County is 101,183 (11.8%). There are 613,698 

people of voting age, with 63,851 (10.4%) voting age Black 

residents of Tarrant County. Plaintiffs’ Tarrant County 

("Ta") Exhibit 01.

There are twenty three (23) State District 

Courts in Tarrant County. Black residents are concentrated 

in the Center of the County. Ta-04, p. 2, Map of Proposed 

Districts. Evidence was introduced that two (2) Black single 

member districts of greater than fifty percent (50%) Black 

voting age population were possible. Id. at 1.

8. Bexar County. Plaintiffs are proceeding only 

on behalf of Hispanic voters in Bexar County. Bexar County 

has a total population of 988,800. Its Hispanic population is 

460,911 (46.61%). There are 672,220 people of voting age 

with 278,577 (41.1%) voting age Hispanic residents of Bexar 

County. Plaintiffs’ Bexar County ("B") Exhibit 01.



204a

There are nineteen (19) State District Courts in 

Bexar County. Hispanic residents are concentrated in the 

Central and South Central sections of the County comprising 

most of the population of the City of San Antonio. B-04, p. 

2, Map of Proposed Districts. Evidence was introduced that 

eight (8) Hispanic single member districts of greater than fifty 

percent (50%) Black voting age population were possible. Id. 

at 1.

9. Travis County. Plaintiffs are proceeding only 

on behalf of Hispanic voters in Travis County. With a total 

population of 419,335, its Hispanic population is 72,271 

(17.2%). There are 312,392 people of voting age with 

44,847 (14.4%) voting age Hispanic residents of Travis 

County. Plaintiffs’ Travis County ("Tr") Exhibit 01.

There are thirteen (13) State District Courts in 

Travis County. The largest concentration of Hispanic 

residents in one area, if at all, appears to be located in the 

Eastern portion of the County. Tr-04, p. 2; Tr-05, p. 1, Map



205a

of Proposed Districts. Mr. David Richards testified that in 

his opinion the Hispanic community was pretty well dispersed 

in Travis County. Nevertheless, evidence was introduced that 

one (1) combined minority single member district of greater 

than fifty percent (50%) Hispanic voting age population was 

possible. Id. at 1. Plaintiffs’ Exhibit Tr-04 depicts the single 

member Hispanic district proposed for Travis County. The 

Court finds that it is without moment that the proposed 

district appears to be minimally contiguous.

10. Jefferson County. Plaintiffs are proceeding 

only on behalf of Black voters in Jefferson County. Jefferson 

County has a total population of 250,938. Its Black 

population is 70,810 (28.2%). There are 179,708 people of 

voting age of which there are 44,283 (24.6%) voting age 

Black residents of Jefferson County. Plaintiffs’ Jefferson 

County ("J") Exhibit 01.

There are eight (8) State District Courts in 

Jefferson County. Black residents are concentrated in the



206a

Central and South Eastern portions of Jefferson County. J- 

04, p. 2, Map of Proposed Districts. Evidence was 

introduced that two (2) Black single member districts of 

greater than fifty percent (50%) Black voting age population 

were possible. Id. at 1.

11. Lubbock County. Plaintiffs are proceeding on 

behalf of the combined Black and Hispanic voters in Lubbock 

County. There is a total population of 211,651 in Lubbock 

County. The Black population of Lubbock County is 15,780 

(7.5%), while the Hispanic population is 41,428 (19.6%). 

There are 150,714 people of voting age, with 9,590 (6.4%) 

voting age Black residents and 22,934 (15.2%) voting age 

Hispanic residents. The combined minority voting age 

population is 32,524 (21.6%). Plaintiffs’ Lubbock County 

("L") Exhibit 01.

There are six (6) State District Courts in the 

Lubbock Crosby County area. The combined minority 

population is concentrated in the North Eastern, Eastern and



207a

South Eastern sections of those Counties. L-04, p. 2, Map of 

Proposed Districts. Evidence was introduced that one (1) 

combined minority single member district of greater than fifty 

percent (50%) Black voting age population was possible. Id. 

at 1. This remains true when Plaintiffs controlled for voting 

age population of non-United States citizens of Spanish origin. 

Plaintiffs’ Exhibit L -ll.

12. Ector County. Plaintiffs are proceeding on 

behalf of combined Black and Hispanic voters in Ector 

County. The total population of Ector County is 115,374. 

Its Black population is 5,154 (4.5%) and the Hispanic 

population is 24,831 (21.5%). There are 79,516 people of 

voting age. The voting age population by minorities consists 

of 3,255 (4.1%) Black voters and 14,147 (17.8%) Hispanic 

voters for a combined minority voting age population of 

17,402 (21.9%). Plaintiffs’ Ector County ("E”) Exhibit 01.

There are four (4) State District Courts in Ector 

County. Minority residents are concentrated in the Southwest



208a

section of the County. E-04, p. 2, Map of Proposed 

Districts. Evidence was introduced that one (1) combined 

minority single member district of greater than fifty percent 

(50%) minority voting age population was possible. Id. at 1. 

It is possible to draw a district of combined minority 

population of voting age even if non-citizen voting age 

Hispanics are eliminated from the calculations. Plaintiffs5 

Exhibit E-13.

13. Midland County. Plaintiffs proceed on behalf 

of Black and Hispanic voters combined in Midland County. 

Midland County has a total population of 82,636. Its Black 

population is 7,119 (8.6%) and its Hispanic population is 

12,323 (14.9%). There are 57,789 people of voting age, 

4,484 (7.8%) voting age Black voters and 6,893 (11.9%) 

voting age Hispanic voters. The combined voting age 

population is 11,377 (19.7%). Plaintiffs’ Midland County

C'M") Exhibit 01.



209a

There are three (3) State District Court in 

Midland County. Black residents are concentrated largely in 

the Northeastern, East Central and Southeastern sections of 

Midland County. M-04, p. 2, Map of Proposed Districts. 

Evidence was introduced that one (1) combined minority 

single member district of greater than fifty percent (50%) 

combined voting age population was possible. Id. at 1. It is 

possible to draw a district in which the combined minority 

population is in the majority even if non-citizen Hispanics of 

voting age are excluded. Plaintiffs’ Exhibit M-15.



210a

Political Cohesion and White Bloc Voting

14. Racially polarized voting indicates that the 

group prefers candidates of a particular race.15 Monroe v. City 

ofWoodville, No. 88-4433, slip op. at 5573, (5th Cir. Aug. 

30, 1989). Political cohesion, on the other hand, implies that 

the group generally unites behind a single political "platform" 

of common goals and common means by which to achieve 

them. Id. at 5573.

The inquiry into political cohesiveness is not to 

be made prior to and apart from a study of polarized voting. 

The Supreme Court made clear that "[t]he purpose of 

inquiring into the existence of racially polarized voting is 

twofold: to ascertain whether minority group members 

constitute a politically cohesive unit and to determine whether

15 The Supreme Court in Gingles adopted the definition of racial 
polarization offered by Dr. Bernard Grofman, appellees’ expert. Dr. 
Grofman explained that racial polarization "’exists where there is a 
consistent relationship between [the] race of the voter and the way in 
which the voter votes’ ... or to put it differently, where ’black voters and 
white voters vote differently.’" Gingles, 478 U.S. at 53 n.21.



211a

whites vote sufficiently as a bloc usually to defeat the 

minority’s preferred candidates." Gingles, 478 U.S. at 56.

15. Plaintiffs presented testimony of two experts. 

Dr. Richard Engstrom ("Dr. Engstrom") testified only about 

Harris and Dallas Counties. Dr. Robert Brischetto ("Dr. 

Brischetto") testified concerning all other counties at issue in 

this case.

16. Harris County

a. Dr. Richard Engstrom testified on behalf of

Plaintiffs and Plaintiff-Intervenors in Harris County. Dr. 

Engstrom used 1980 U.S. Census counts of total Black 

population by precinct to analyze 1980 election results. For 

1982, 1984, 1986 and 1988, Dr. Engstrom used precinct 

voter registration estimates supplied by Dr. Richard Murray, 

a non-testifying expert. Plaintiffs’ Exhibit P-I H-08. Dr. 

Engstrom verified or "matched" the reliability of Dr. 

Murray’s estimates and the 1980 Census counts by comparing 

Dr. Murray’s estimates to an Hispanic precinct voter



212a

registration list compiled by the Secretary of State, 

Testimony of Dr. Richard Engstrom. Dr. Engstrom testified 

that there was "a very good match."

b. Dr. Engstrom analyzed 17 general elections in 

Harris County. He calculated "r" values16 between 0.798 and 

0.880 for the 17 elections analyzed.17 Plaintiffs’ Exhibit P- 

I H-01 pp. 1-2. Dr, Engstrom’s regression analysis shows a 

strong relationship between race and voting patterns in Harris 

County. See Appendix A to this opinion ("Appendix"), 

Plaintiffs’ Exhibit P-I H-01 pp. 1-2. All of his correlation 

coefficients18 exceed .79 (79%) except one. Id., see section

16 The ”r" value describes the relationship between the racial 
composition of a precinct and the number of votes a particular candidate 
receives. Testimony of Dr. Engstrom. To put it another way, "how 
consistently a vote for Black candidate changes as the racial composition 
of the precinct changes." Id.

17 "Crucial to the validity of regression analysis are the values for V  
and ’r[squared]’, which measure the strength of the correlation and linear 
relationship of the variables bemg examined, in this case the race of the 
voter and the candidate he supports." Overton, 871 F.2d at 539

18 The "r" value is also referred to as the "correlation coefficient" or 
"Pearson r." A positive Pearson r shows that as the percentage of 
minorities in a precinct increases, so does the support that a minority 
candidate receives. A Pearson r of -1 shows the opposite, as the



213a

on Bivariate Regression under the column heading of 

Correlation Coefficient. Dr. Robert Brischetto generally 

testified with regard to the counties in issue other than Dallas 

and Harris County, that a Pearson r of 1 (100%) would show 

perfect correlation. He further testified that social scientists 

consider anything over 0.50 (50%) as showing a strong 

correlation.

c. Further, each Pearson r is accompanied by an 

estimate of the likelihood that the estimate would occur by 

chance. This figure is known as the significance level. In 

the regression analyses for Harris County, as well as all the 

counties in issue, the significance level was much smaller than 

the generally accepted level of extremely high significance of 

.05.19 Testimony of Dr. Robert Brischetto; Testimony of Dr.

percentage of minorities in a precinct increases, there is decrease in the 
support that a minority candidate receives. A Pearson r of 0 shows that 
there is no relationship between the racial/ethnic composition of precincts 
and voting behavior.

19 A significance level of .01, for example, means that the Pearson 
r in question would have occurred by chance only one time out of one 
hundred.



Richard Engstrom. Dr. Engstrom testified that the probability 

that the Harris County estimates would have occurred by 

chance were less than 1 out of 10,000.

d. The lowest r squared for these analyses is 

approximately .62 (62%). This describes the percentage of 

the variance in voting behavior explained by race/ethnicity. 

Testimony of Dr. Robert Brischetto.20 Squaring these "r" 

values21 to calculate coefficients of determination demonstrates 

in the present case that race explains at least 62% of the 

variance in voting in all 17 elections relied on by Plaintiffs 

and Plaintiff-Intervenors.

e. The one judicial race that did not exceed the 

79% figure actually had a negative correlation. This race 

involved Mamie Proctor, a Black candidate running on a

214a

20 For example, if a Pearson r is .5, then 25% ( 5 x 5  or. r squared) 
of the variance in voting behavior is explained by race/ethnicity.

21 This figure is also known as the coefficient of determination. It is 
the coefficient of correlation or Pearson r multiplied by itself. It shows 
how much or little "noise" there is around the line of correlation or, in 
other words, "the percentage of variance in the vote that is explained by 
the race of the voters." Overton, 871 F.2d at 539 n .l l .



215a

Republican ticket against Henry Schuble, an Anglo, for State 

Family Court 245. In the 1986 Proctor race, the correlation 

coefficient was -0.836 (approx. -84%). Id. at 1; Plaintiffs’ 

Exhibit P-I H-10 p. 2. This reflects that, as the percentage 

of Blacks in voting precincts increases, Proctor’s support 

decreased. In other words, even though Ms. Proctor is 

Black, she did not receive the support of the Black 

community. Hence, she was not the preferred candidate of 

Black voters in Harris County. Dr. Engstrom testified on 

cross examination that the "candidate of choice" was the 

candidate who received the majority of the black vote, not 

necessarily the Black candidate.

f. When Dr. Engstrom controlled for Hispanic 

votes, Dr. Engstrom’s regression analysis shows that Blacks 

consistently gave more than 97% of their vote to their 

preferred candidate. Id. , see last two columns.

g. Dr. Engstrom’s homogenous precinct analysis 

corroborates the results of his regression analysis. See



216a

Appendix A, Plaintiffs’ Exhibit P-I H-01 pp. 1-2. It shows 

that Black voters in Harris County gave more than 96% of 

their votes to the preferred candidate of Black voters in every 

election except Proctor’s. Ms. Proctor received 5% of the 

Black vote.

h. Finally, in all counties including Harris County, 

Plaintiffs "weighted" precinct data in order to account for 

variations in the population size of the various precincts. 

Testimony of Dr. Richard Engstrom; Overton, supra, at 537. 

Dr. Engstrom testified that on the basis of his analysis the 

Black community in Harris County votes cohesively in 

general elections for State District Court Judges.

i. Harris County Defendant-Intervenor Judge 

Sharolyn Wood ("Judge Wood"), attacks Plaintiffs and 

Plaintiff-Intervenor’s proof on the following grounds: (1) Dr. 

Engstrom failed to establish the reliability of his data set; (2) 

absentee votes were not allocated to election returns; (3) the 

analysis does not reflect the effect of the influx of the



217a

Vietnamese population into Harris County and traditionally 

Black precincts; and (4) the analysis fails to reflect black 

candidate successes in primary elections or uncontested races.

j. In reference to the reliability of the data set, 

Judge Wood points to numbers on Dr. Murray’s printouts that 

have been written over, struck out or crossed through, pencil 

notations and other marks. This Court finds the data set to 

be reliable.

k. In response to the other concerns, Dr. 

Engstrom testified that: (1) primary elections were not 

examined in Harris County because those elections were not 

filtering out the candidate of choice of Black voters; (2) 

uncontested races do not assist researchers in their analysis; 

(3) the appropriate comparison in Voting Rights cases is 

Black and non-Black; (4) while he did not specifically control 

for Asian Americans, they would be included in the 

percentage of non-Black votes; and (5) the range of absentee 

votes between 1980 and 1986 never exceeded 3.2% to 7.6%,



218a

while in 1988 that range rose to approximately 13.6% per 

precinct. This Court finds that Dr. Engstrom’s testimony 

adequately addresses these concerns. The Court further finds 

that the lack of control for absentee votes and Asian 

Americans does not significantly affect Dr. Engstrom’s 

analysis.

1. The State Defendant and Defendant-Intervenors 

argue that it is a candidate’s political party and the strength 

of straight ticket party voting that determines the result of any 

election contest and not the difference between the preferred 

candidates of whites and minorities. In support of this 

argument, Defendants and Defendant-Intervenors point to the 

1982 and 1986 Democratic sweep for judicial candidates in 

Harris County and a similar Republican sweep in the years 

1984 and 1988. All Defendants attribute this phenomenon to 

top of the ticket straight party voting.22

22 In 1982, Senator Lloyd Bentsen was the lead Democratic candidate 
on the ballot. In 1986, Governor Mark White represented the top of the 
ticket Democratic candidate. In Presidential election years 1984 and 1988,



219a

m. Correlation and regression can also prove the 

third Gingles prong by showing that a white bloc vote exists. 

This is shown when the percentage of votes received by the 

minority candidate decreases as the percentage of minority 

persons of voting age decreases. In other words, the minority 

candidate receives fewer votes as the percentage of non­

minority persons in a precinct increases. Regression results 

estimate the percentage of non-minority support for minority 

candidates, otherwise known as the Anglo cross over vote. 

Plaintiffs’ Exhibit P-I H-01 pp. 1-2. column 4. This is also 

referred to as the Y intercept.

n. Dr. Engstrom calculated Y intercepts for the 

Black preferred candidate between 29 and 39 percent for the 

17 elections analyzed. The highest Y intercept was 53.6%, 

but this percentage of the non-Black vote was for the non­

preferred candidate Mamie Proctor. The highest percentage

President Ronald Reagan and President George Bush, respectively, were 
the top Republican candidates.



220a

of Anglo cross over votes received by the preferred candidate 

of Black voters was 39 percent. See 1986 race Carl Walker, 

Jr., Black Democrat against George Godwin; Id. This is 

corroborated by a 40% Anglo cross over vote figure 

calculated for the same race in homogenous precincts of 90 % 

or more non-Black population. Id. at column 1. Mr. Walker 

was the Black preferred candidate and won. Plaintiffs’ 

Exhibit P-I H10. Two other Black preferred candidates 

drawing opposition in the 1986 elections lost their elections 

even though they had identical Black community support. 

These two candidates had slightly less Anglo cross over vote. 

Plaintiffs’ Exhibit P-I H-01 pp. 1-2, column 1. Five other 

Black preferred candidates drawing opposition in what appears 

to be county-wide elections lost in the 1986 elections. 

Plaintiffs’ Exhibit P-I H-10.23 This analysis demonstrates that 

an Anglo bloc vote exists. Dr. Engstrom testified that the

23 These candidates are: Bonnie Fitch, Raymond Fisher, Francis 
Williams, Sheila Jackson Lee, and Cheryl Irvin.



221a

Anglo or white bloc vote in Harris County is sufficiently 

strong to generally defeat the choice of the Black community. 

This Court agrees.

o. Plaintiff-Intervenor Sheila Jackson Lee also

testified about political cohesiveness among Black voters in 

Harris County. Ms. Lee has lived in Harris County 

approximately 11 years and has been a candidate in several 

judicial elections. Plaintiffs’ Exhibit P-I H-01 pp. 1-2;

Exhibit P-I H-10 pp. 1-3. She had many different 

endorsements and campaign strategies but still lost. She 

testified that her loss was attributable to not getting enough 

white votes.

p. This testimony was supported by the deposition 

summaries of Thomas Routt, Weldon Berry, Francis Williams 

and Bonnie Fitch.

q. Defendant-Intervenor Wood presented the 

testimony of Judge Mark Davidson. As a hobby, Judge 

Davidson analyzes the results of judicial elections in Harris



222a

County. His testimony concerned his views on what he has 

termed "discretionary judicial voters" ("DJV"),24 Judge 

Davidson testified that 15% of the vote injudicial elections in 

Harris County were DJV’s. The remaining 85% split roughly 

evenly between straight Democrat party and straight 

Republican party voting. Based upon his analysis, Judge 

Davidson believes that race and ethnicity are irrelevant to 

voting behavior as it relates to the judiciary in Harris County. 

He opines that DJV’s determine the outcome of judicial 

contests in Harris County and the DJV vote can somewhat be 

garnered by various campaign factors. While this Court finds 

Judge Davidson to be a credible witness, under controlling 

law, the Court finds that his testimony is irrelevant.

r„ The Court further finds Defendant-Intervenor 

Wood’s contention that the Black preferred candidate lost 

their respective judicial race due to their failure to win the

24 He defines DJC’s as voters who vote for at least one judicial 
candidate of one party and at least one of the other party. DJV’s are also 
referred to as "swing" voters.



223a

Harris County bar or preference poll or to obtain the Gay 

Political Caucus ("GPC"), endorsement to be legally 

incompetent.

s. The complete data set used by Dr. Engstrom 

was used by Defendant’s expert, Dr. Delbert Taebel for his 

analysis of Harris County. Dr. Taebel did not weight his 

precinct data to account for variations in population size of 

various precincts in Harris County or any other county at 

issue.

t. Dr. Taebel analyzed 23 District Court general 

elections where minorities opposed white candidates in Harris 

County. State Defendants’ Exhibit D-05 pp. 9, 13, 29, 33, 

37, 41, 45, 53, 61, 81, 85, 89, 93, 97, 101, 105, 137, 141, 

145, 161, 165, 173 & 177. Black and white voters voted dif­

ferently in all 23 District Court elections. Id. The Black 

preferred candidate won only six (6) times. The Black 

preferred candidate won seven (7) of 11 County Court general 

elections. Id. D-05 pp. 1, 5,47, 21, 25, 109, 113, 117, 121,



224a

125 & 129. Blacks and whites voted differently in each of 

those elections. Id. Dr. Taebel also analyzed nine (9) 

judicial primary elections; seven (7) for District Court posts 

and two (2) County Court posts. Id. D-05 pp. 49, 57, 65, 

73, 77, 145, 157, 169 & 181. The Black preferred candidate 

won six (6) of the nine (9) primaries. Interestingly enough, 

each preferred candidate winning the primary lost the general 

election. Id. D-05 pp. 61, 69, 81, 153, 161 & 173.

17. Dallas County.

a. Dr. Engstrom used the same data set for his 

analysis of Dallas County. However, the 1980 Census counts 

were updated in 1982 and 1988 by the Dallas County 

Elections Office by reconfiguring precincts according to the 

changes made in precinct lines. Testimony of Dr. Richard 

Engstrom. Dr. Engstrom accepted the updates census counts 

for 1982 and 1988 as reliable. Id. In the intervening years of 

1984 and 1986, Dr. Engstrom looked for precincts that



225a

combined or split and aggravated precinct counts for those 

precincts. Id.

b. Dr. Engstrom analyzed seven (7) general 

elections for State District Court where Blacks opposed 

Anglos between 1980 and 1988 in Dallas County. The 

correlation coefficient or "r" values exceed 0.864 (86%) for 

six (6) of the seven (7) elections analyzed. See Appendix A, 

Plaintiffs’ Exhibit D-02. Dr. Engstrom’s homogenous 

precinct analysis and regression analysis shows a 1 strong 

relationship between race and voting patterns in Dallas 

County. Id., see columns 2 & 3. Dr. Engstrom testified that 

the significance level was much smaller than the generally 

accepted level of extremely high significance of .05 and that 

the probability that the Dallas County estimates would have 

occurred by chance were less than 1 out of 10,000.

c. The lowest r squared for these analyses is 

approximately .75 (75%). This figure is found from 

multiplying the r value by itself for Jesse Oliver’s judicial



226a

race in 1988. This coefficient of determination demonstrates 

that race explains at least 75 % of the variance in voting in at 

least six (6) of the seven (7) elections relied on by Plaintiffs 

and Plaintiff-Intervenors.

d. Plaintiffs’ Exhibit D-02 further shows that in 

five (5) of the seven (7) elections as the percentage of Blacks 

increased in precincts, so did Black support for the preferred 

candidate of Black voters. See Homogeneous precinct 

analysis, column 2.

e. Bivariate regression analysis reflects a negative

correlation for Carolyn Wright’s judicial race in 1986. Judge 

Wright is a Black who ran on the Republican ticket. She 

received -1.5% of the Black vote and 71.7% of the non- 

Black vote. Plaintiffs’ Exhibit D-02, columns 4 & 5. The 

correlation coefficient was -0.872 (-87%). Id. , column 3.

This reflects that, as the percentage of Blacks in voting 

precincts increases Judge Wright’s support decreased. In 

other words, even though Ms. Wright is Black, she did not



227a

receive the support of the Black community. Hence, she was 

not the preferred candidate of Black voters in Dallas County. 

Black voters also failed to support Judge Baraka, a Black 

Republican candidate in 1984.

f. When Dr. Engstrom controlled for Hispanic 

votes, Dr. Engstrom’s regression analysis shows that Blacks 

consistently gave more than 97% of their vote to their 

preferred candidate. Id., see last two columns. Dr. 

Engstrom’s analyses shows that Blacks are politically cohesive 

in general elections for State District Court in Dallas County.

g. His analysis is confirmed by the testimony of 

Plaintiff-Intervenors’ Joan Winn White, Fred Tinsely, H. Ron 

White and Jesse Oliver. The Exhibits reflect that each 

Plaintiff-Intervenor received 97% or better of the Black 

homogenous precincts and at least 83% of the votes in 

precincts with Black population of 50% to 90%. Plaintiffs’

Exhibit P-I D-16 - D-22a.



228a

h. Plaintiffs calculated the percentage of votes for 

the black preferred candidate, Jesse Oliver, and his white 

opponent, Brown, in each of the proposed hypothetical single 

member districts. Plaintiffs’ Exhibit D-12a. They repeated 

this procedure for the judicial races involving the Black 

preferred candidates in Plaintiffs’ Exhibit D-02 and Nathan 

Brin (an Anglo preferred by Black voters in Dallas County). 

Plaintiffs’ Exhibits D-12b, 12c & 12d. In each instance, the 

Black community’s preferred candidate received a majority of 

votes in each predominately Black hypothetical district.

i. Defendant-In tervenor Judge Harold Entz 

("Judge Entz"), attacks Plaintiffs and Plaintiff-Intervenors 

evidence on the ground that: (1) the data is based on total 

population and not voting age registered voters; (2) the 

analysis does not reflect changes in the distribution of 

population over time as a result of growth of Dallas suburbs 

and geographic dispersal of minorities; (3) Dr. Engstrom did 

not control for absentee or Oriental votes; (4) there is a



229a

stronger association between partisan affiliation and success 

than there is between race and success; and (5) the analysis 

shows what happened but not why it happened. In support of 

his fourth attack, Judge Entz argues that five of the seven 

elections analyzed involved Black candidates who are the 

candidate of choice, while all seven involved Democratic 

candidates who were the Black preferred candidate of choice. 

Thus, Judge Entz concludes that political party is a better 

predictor of the Black preferred candidate and that candidate 

is a victim of partisan politics not discriminatory vote 

dilution.

j. Dr. Engstrom testified that: (1) he was never 

given precinct .data by race and voting age registered voters; 

and (2) the range of support for the Democrat candidates 

between 1980 and 1986 varied 10 to 17 percentage points. 

Thus, Dr. Engstrom concluded that something other than just 

straight party voting is going on in judicial elections.



230a

k. Dr. Dan Wiser’s testimony confirms Dr. 

Engstrom’s results. Dr. Wiser’s data set was based on 1980 

Census data, Dallas County election returns and Dallas 

County precinct data adjusted for changes in precincts. 

Precincts that split were reconstructed by estimating the part 

of the precinct that shifted to another and apportioning the 

registered vote based on the shift and past history. Testimony 

of Dr. Dan Wiser. The adjusted data was checked against the 

1986 Justice Department submissions. Id. Plaintiffs’ Exhibit 

P-T D -ll. Ninety eight percent (98%) of the vote in 

homogeneous precincts of 90% Black voters went to the Black 

preferred candidate. Plaintiffs’ Exhibit P-I D -ll, D-16 

through D-23a. At least 83% of the Black community vote 

supported the Black preferred candidate in homogenous 

precincts of between 50% and 90% Black. Id.

l. Dr. Wiser calculates that the Asian community 

only comprised approximately 2.6% of the total Dallas 

County population as of 1985. Plaintiffs’ Exhibit P-I D-03.



231a

He testified that the best estimate of the growth of the Asian 

community between 1985 and the present is supplied by the 

Bureau of Census. Plaintiffs’ Exhibit P-I D-02. He believes 

there has only been a growth of approximately 3% between 

1985 and 1988 and does not agree with estimates of Asian 

leaders in Dallas County.

m. Plaintiffs and Plaintiff-Intervenors established 

the third Gingles prong by showing that a white bloc vote 

exists. The Y intercepts calculated by Dr. Engstrom for the 

Black preferred candidate ranged between 29 and 39 percent 

for the seven elections analyzed. Plaintiffs’ Exhibit D-02. 

The highest Y intercepts were 61.8% and 71.7% for Judges 

Baraka and Wright respectively, the non-preferred candidates. 

Id. The highest percentage of Anglo cross over votes 

received by the preferred candidate of Black voters was 

approximately 39 percent. Id., 1980 race involving Joan 

Winn White. There are 197 precincts in Dallas County that



232a

are 90% or greater white population. Plaintiffs’ Exhibit P- 

I D-06 & 07.

n. This is corroborated by Dr. Engstrom’s 

homogenous precinct analysis and Dr. Wiser’s analysis. Id. 

at column 1. This analysis demonstrates that an Anglo bloc 

vote exists. The Court finds on the basis of the exhibits and 

testimony of Dr. Engstrom and Dr. Wiser that the Anglo or 

white bloc vote in Dallas County is sufficiently strong to 

generally defeat the choice of the Black community.

o. Dr. Anthony Champagne testified that judicial 

elections in Dallas County were characterized by strong 

partisan affiliation rather than racially polarized voting. Dr. 

Champagne analyzed contested District Court general 

elections between 1976 and 1988. Plaintiffs’ Exhibit P-I D- 

06-A. Dr. Champagne bases his opinion on the steady 

increase of Republican victories in Dallas County over time. 

Plaintiffs’ Exhibit P-I D-07-A pp. 1-2. Only seven (7) of the 

contested general elections analyzed involved Blacks opposing



233a

white candidates. Plaintiffs’ Exhibit P-I D-09-A p. 1. No 

Black candidate running on the Democratic ticket won a 

general election. Two Black candidates running as 

Republicans won. Id. at 1. The Court noted, supra, that it 

was the non-Black vote that gave rise to the success of these 

two candidates. See Finding of Fact 17.e.

p. Dr. Taebel analyzed nine judicial elections in 

which Blacks opposed Anglos. In eight of the nine, Blacks 

and Anglos voted differently. State Defendants Exhibit D- 

06 pp. 1, 13, 17, 21, 37, 69, 73, 81 & 89; see Appendix B, 

Plaintiffs’ re-Evaluation of Dr, Taebel’s Reports ("Re- 

Evaluation") for Dallas County p. 1. The Black preferred 

candidate won only once. Id. This sole victory arose in the 

1988 Republican primary. Id. The Black choice won only 

five (5) of the other twelve primary and general District Court 

and Appellate Court races analyzed. Id.; Plaintiffs’ Re- 

Evaluation p. 2.

18. Tarrant County.



234a

a. Dr. Robert Brischetto ("Dr. Brischetto") 

testified concerning on behalf of Plaintiffs and Plaintiff- 

Intervenors in Tarrant County and the remaining counties at 

issue. He weighted his analysis in all remaining counties. 

Dr. Brischetto used Black population data by precinct from 

the 1980 Census for thirty four (34) precincts in Tarrant 

County where precinct lines had not changed. He analyzed 

four (4) elections in which Blacks opposed Anglos in Tarrant 

County (three judicial elections and the 1988 Democratic 

Primary). See Appendix A, Plaintiffs’ Exhibit Ta-02.

b. In Tarrant County and other contested counties 

where there was a large representation of three ethnic/racial 

groups, Dr. Brischetto used multiple regression analysis. Dr. 

Brischetto testified that this approach shows the effect of the 

percentage of Hispanics in precincts, for example, upon the 

votes received by a minority candidate, when accounting for 

the effect of the percentage of Hispanics. The statistical 

calculation that shows the effect is called the "Partial r."



235a

c. Dr. Brischetto calculated "Partial r" values of - 

87%, -80% and 90% respectively for the three judicial 

elections analyzed. Plaintiffs’ Exhibit Ta-02. There was a 

negative correlation in the 1986 Salvant - Drago race and the 

1986 Stums - Goldsmith race. Salvant and Stums were Black 

candidates running as Republicans. They did not receive the 

support of the Black community. Id. Approximately 93 % of 

the Black voters in precincts analyzed voted for Drago, while 

approximately 85% of Black voters voted for Goldsmith. Id. 

The likelihood that the estimates would occur by chance 

(significance level) was much smaller than .05. Testimony of 

Dr. Robert Brischetto. Dr. Brischetto’s regression analysis 

shows a strong relationship between race and voting patterns 

in Tarrant County. The strength of the correlation is 

dependent on the size of the number not on the positive or 

negative value assigned to it. The negative correlation in the 

Salvant and Stums races merely reflects that as the percentage



236a

of Blacks in voting precincts increases, the support for 

Salvant and Stums decreased.

d. The lowest r squared for these analyses is 

approximately 64% for the 1986 race for Criminal District 

Court Place 1. Race explains at least 64% of the variance 

in voting in all elections relied on by Plaintiffs and Plaintiff- 

Intervenors in Tarrant County.

e. Plaintiffs’ Exhibit Ta-02 further analyzes the 

Jesse Jackson Democratic Presidential Primary in 1988. The 

Partial r for Jesse Jackson was 98 %. Although the Jackson 

race was not a judicial election, its analysis corroborates the 

judicial elections analyzed. However, Dr. Brischetto testified 

that he would reach the same conclusions without considering 

the Jackson contest.

f. Dr. Brischetto’s homogenous precinct analysis 

corroborates the results of his regression analysis. Plaintiffs’ 

Exhibit Ta-02. It shows that Black voters in Tarrant County



237a

gave more than 89 % of their votes to the preferred candidate 

of Black voters in every election analyzed.

g. Dr. Brischetto also recompiled and reanalyzed 

Dr. Taebel’s work concerning Tarrant County. Plaintiffs’ 

Exhibit Ta-10. Plaintiffs’ Exhibit Ta-10 compiles all of Dr. 

Taebel’s analysis of county wide elections for judicial positions 

when Blacks opposed Anglos. Dr. Taebel also found negative 

correlation of -63% and -60% in the Salvant and Stums 

elections respectively. Id. While these correlation figures are 

not as high as those found by Dr. Brischetto, they still reflect 

a strong correlation. See Finding of Fact 16.b last sentence.

h. Dr. Taebel used bivariate regression in his 

analysis. Dr. Brischetto is of the opinion that had Dr. Taebel 

used multivariate analysis, his correlation estimates would 

have been more precise. Further, Dr. Brischetto believes that 

the r values would have been higher, because the analysis 

would have eliminated the effect of Hispanics. While Dr. 

Brischetto did not agree with Dr. Taebel’s statistical



238a

methodology, he reviewed Dr. Taebel’s work because Dr. 

Taebel’s data set was more complete.

i. This Court finds, on the basis of all of Dr. 

Brischetto’s analysis, the Black community in Tarrant County 

votes cohesively in general elections for State District Court 

Judges.

j. The Court further finds that the Anglo bloc 

vote in Tarrant County is sufficiently strong to defeat the 

minority community’s preferred candidate. In the three 

general elections analyzed, the preferred candidate of Black 

voters lost every time. This is true even though each of the 

Black preferred candidates had a sizeable percent of Anglo 

cross over votes. Plaintiffs’ Exhibits’ Ta-02; Ta-TO. The Y 

intercept reflects that Anglo support for the Black preferred 

candidates was between 42% and 49%. Id. Ta-02.

k. The testimony of Plaintiff and sitting 

District Judge Maryellen Hicks corroborates this analysis. 

Judge Hicks is Black. She testified that the only time she ran



239a

against an Anglo in a countywide judicial election she lost. 

Plaintiffs’ Exhibit Ta-10, County Criminal Court Place 1. 

She feels that she lost because she could not convince Anglos 

to vote for her. She also believes that she could not win if 

she had Anglo opposition because of the Anglo vote.

1. Judge Hicks testified that implementation of 

single member districts in Tarrant County had immediate 

effects. Before the districts went into effect, only two Blacks 

had been elected to School Trustee positions. Since single 

member districts were implemented two Blacks and one 

Hispanic have consistently been Trustees. Two Blacks and 

one Hispanic also took office on the Fort Worth City Council 

as a result of single member districts being implemented for 

that body. Further, after single member districts were 

established for State Representative offices, two minorities 

were elected to the Texas House of Representatives.25

25 After the lines were redrawn in 1982, one minority has been
elected.



240a

m. In the five primary and general judicial 

elections involving Black candidates analyzed by Dr. Taebei, 

the Black choice won only once. State Defendants Exhibit D- 

39 pp. 1, 29, 33, 37 & 57; See Appendix B, Re-Evaluation 

for Tarrant County p. 1. It is clear that Blacks and Anglos 

voted differently in these races. Id. In District Court general 

elections that did not have a Black candidate, the candidate 

preferred by Black voters won three (3) of five (5) times. 

Id. D-39 pp. 13, 17, 21, 25 & 61; Re-Evaluation at 1-2. In 

three other judicial general elections the candidate of choice 

of the Black community won all three times. Id. D-39 pp. 9, 

49 & 65; Re-Evaluation at 2. Two of the three were 

Appellate Court elections, while the third involved the County 

Court at Law. Id. The candidate of choice also won all 

three primary judicial elections analyzed by Dr. Taebei. Id. 

D-39 pp. 5, 41 & 49.

19. Bexar County.



241a

a. Dr. Brischetto based his analysis of Bexar 

County on Spanish surnamed registered voter data by precinct 

from the office of the Secretary of State of Texas. Dr. 

Brischetto testified that this data was the closest measure of 

actual registration data by precinct. Dr. Brischetto used 

bivariate regression analysis in Bexar County because of the 

very small Black population in the County.

b. He analyzed six (6) general elections from 1980 

to 1988 in which Hispanics opposed Anglos. See Appendix 

A, Plaintiffs’ Exhibit B-02. He calculated "r" values for 

Hispanic preferred candidates between 86% and 88%. Id. 

His regression analysis shows a strong relationship between 

race and voting patterns in Bexar County. In all but one 

race, as the percentage of Hispanics increased, support for the 

Hispanic preferred candidate increased. Dr. Brischetto 

testified that the probability that correlation of this size would



242a

happen by chance was much smaller than the generally 

accepted level of .05.26

c. In the 1982 Barrera - Stohlhandski race, the 

Hispanic candidate, Roy Barrera, Jr. running as a Republican, 

received very little Hispanic support. the correlation 

coefficient for Mr. Barrera was -80%. Id. As the percentage 

of Hispanics in voting precincts increased, Barrera’s support 

decreased. Barrera received approximately 17% of the 

Hispanic vote. Id. He was not the preferred candidate of 

Hispanic voters in Bexar County.

d. The lowest r squared for these analyses is 

approximately 64% for Mr. Stohlhandski, an Anglo running 

as a Democrat in the 1982 Barrera - Stohlhandski race. The 

highest r squared was 77% for the 1986 Cisneros - Peeples 

race. This demonstrates in Bexar County that race explains

26 The significance level for each election is .0000. Plaintiffs’ Exhibit 
B-02. Dr. Brischetto testified that there was practically no [or zero] 
probability that these correlations would happen by chance.



243a

at least 64% to 77% of the variance in voting in all six 

elections,

e. Dr. Brischetto’s background and homogeneous 

precinct analysis confirm the fact that Hispanics are politically 

cohesive in Bexar County. Dr. Brischetto lives in Bexar 

County and analyzed election behavior there in a Section 2 

case involving the San Antonio River Authority. Plaintiffs’ 

Exhibit B-16. There he found polarized voting along racial 

and ethnic lines in a nonpartisan election involving low profile 

campaigns. Dr. Brischetto’s homogeneous precinct analysis 

shows that Hispanic voters in Bexar County gave 73% to 

93% of their votes to the preferred candidate of Hispanic 

voters in every election.

f. Dr. Brischetto controlled for absentee votes in 

1988 elections based on allocated data from the Bexar County 

Elections Administrator. He testified that the additional data

did not change his conclusions.



244a

g. Plaintiffs presented evidence from four 

hypothetical districts carved out of existing precincts for each 

of the six elections analyzed. Plaintiffs’ Exhibits B-12a - 12e. 

Almost always, the Hispanic candidate who actually lost at- 

large would have won if he had run from a hypothetical 

majority Hispanic district. In one case, the 1988 Republican 

primary between Arellano and White, the Hispanic candidate 

won in only three of the four hypothetical districts. Id. B 

12e.

h. In the 1988 Arellano - White Republican 

primary for the 150th District Court, Arellano ran as an 

appointed incumbent. White, an Anglo, decided late in the 

campaign that he did not want to run for office. It was too 

late to withdraw, but he endorsed his opponent Arellano. 

White nevertheless won. Adam Serrata testified in his 

deposition that this was a classic example of polarized voting. 

Deposition Summary of Adam Serrata ("Serrata Depo.").



245a

i. Other testimony suggests the same conclusion. 

Judge Anthony Ferro testified in his deposition that he ran for 

County Court at Law four times in Bexar County. He won 

two races were he did not have Anglo opposition. Deposition 

Summary of Anthony Ferro ("Ferro Depo.") at 1. Both 

Messrs. Serrata and Ferro testified that it is not possible to 

get elected in Bexar County to the position of District Judge 

without Anglo support. Id. ; Serrata Depo.

j . Dr. Brischetto further concluded that the Anglo 

bloc vote in Bexar County is sufficiently strong to defeat the 

Hispanic community’s preferred candidate. In the six 

elections analyzed, the preferred candidate of Hispanic voters 

won only once. See 1988 Mireles - Bowles race. The Y 

intercept reflects that non-Hispanic support for the Hispanic 

preferred candidates was between 18% and 35%. It is not 

surprising that the one Hispanic candidate of choice who won 

also received the highest percent of Anglo cross over votes.



246a

k. Judge Ferro testified that he has only been able 

to get elected when he did not have an Anglo opponent. 

Ferro Depo. Judge Paul Canales testified that voters in Bexar 

County pay attention to the race/ethnicity of candidates in 

judicial elections.

l. The effect of fairly drawn single member 

districts has had a positive effect on minority election results 

in Bexar County. Immediately after the creation of single 

member districts in White v. Regester, Hispanics were elected 

to the Texas House of Representatives. Further, immediately 

after the City Council implemented single member districts, 

the number of minorities on the San Antonio City Council 

increased. Serrata Depo.; Ferro Depo.

m. Whites and Hispanics voted differently in 28 of 

the 29 judicial, elections involving Hispanic candidates in 

Bexar County. State Defendants Exhibit D-07 pp. 2-5 & 7- 

28; see Appendix B, Re-Evaluation for Bexar County p. 1- 

2. In the twelve general elections analyzed by Dr. Taebel,



247a

the Hispanic preferred candidates won three (3) times. Id. D- 

07 pp. 4, 5, 7, 15-16, 18-21 & 25-28; Re-Evaluation at 1. 

Only one of those was a District Court election. Id. D-07 at 

5. The Hispanic choice won six (6) out of 18 primary 

elections. Id. Re-Evaluation at 1-2.

20. Travis County.

a. Dr. Brischetto analyzed three (3) 1988

countywide judicial elections in Travis County: one primary 

election for the 345th District Court and two County Court 

at Law general elections. Dr. Brischetto testified that there 

has only been one Hispanic - Anglo District Court election 

between 1978 and 1988. In that race, the Anglo won. 

Plaintiffs’ Exhibit Tr-11; Testimony of Jim Coronado. Mr. 

David Richards testified that the Republican party is 

significant in Travis County. Hence, Mr. Richards concluded 

that the Democratic Primary is the true testing ground for 

opposed candidates in judicial elections.



248a

b . Dr. Brischetto used Hispanic population data by 

precinct from the 1980 Census reconfigured to 1988 precinct 

boundaries. He based his polarization and homogenous 

precinct analysis on total population figures for Blacks, 

Hispanics and Anglos in approximately 178 precincts 

(virtually all of them) in the County. Amalia Rodriguez 

Mendoza, the Travis County Registrar of Voters, provided the 

data.

c. Dr. Brischetto’s multivariate or multiple 

regression analysis shows that the Hispanic community in 

Travis County is politically cohesive, when the effect of the 

Black vote is considered. Dr. Brischetto calculated "Partial 

r" values of 84%, 85% and 90% respectively for the three 

judicial elections analyzed. See Appendix A, Plaintiffs’ 

Exhibit Tr-02.. The Hispanic preferred candidate received at 

least 77 % of the Hispanic vote in one election27, 93 % in the

27 The 1988 County Court at Law race between Castro Kennedy and 
Hughes. Castro is the Hispanic preferred candidate. Plaintiffs’ Exhibit 
Tr-02.



249a

Democratic Primary election and 95 in the Garcia - Phillips 

race. Id. The likelihood that the estimates would occur by 

chance (significance level) was much smaller than .05. 

Testimony of Dr. Robert Brischetto. Dr. Brischetto’s 

regression analysis shows a strong relationship between race 

and voting patterns in Travis County.

d. The homogenous precinct analysis for Travis 

County establishes a similar pattern. Plaintiffs’ Exhibit Ta- 

02. It shows that Hispanic voters gave more than 63% and 

as high as 90% of their votes to the Hispanic preferred 

candidate.

e. Dr. Brischetto also reanalyzed the same three 

elections using bivariate regression analysis based upon voter 

registration data. See Appendix A, Plaintiffs’ Exhibit Tr- 

19. These correlation figures are very close to those 

calculated using multivariate analysis, and clearly reflect 

strong correlation. See Finding of Fact 16. b. last sentence. 

With either data set, Dr. Brischetto’s analysis shows that as



250a

the percentage of Hispanics in precincts increase, so does 

support for the Hispanic preferred candidate. The r squared 

figures all exceed approximately 64%.

f. The Hispanic preferred candidates took the 

majority of the votes from Plaintiffs’ hypothetical districts 

even though they lost countywide. Plaintiffs’ Exhibit Tr-12.

g. The State Defendants were concerned that 

Plaintiff’s did not analyze Statewide judicial or legislative 

elections. See Cross examination of Jim Coronado; Cross 

examination of Dr. Brischetto. Dr. Brischetto testified that 

Plaintiffs focused on local elections when that data was 

available and these elections were not reached in Plaintiffs’ 

hierarchy of priority. He further testified that the elections 

analyzed were the closest in nature to District Court elections. 

Dr. Brischetto felt that once he had three elections he could 

determine a sufficient pattern. This Court agrees.28

28 Gingles itself relied on only analysis of three elections in Senate 
District 22 (1978, 1980 & 1982) and House District 21 (1978, 1980 & 
1982). Gingles, 478 U.S. at Appendix A.



251a

h. The State Defendants attack Dr. Brischetto’s 

analysis on the ground that he did not take into account: (1) 

absentee voting; and (2) the number of non-United States 

citizens, Blacks or Anglos with Spanish surnamed in Travis 

County.

i. Dr. Brischetto controlled for absentee votes in 

1988 elections in Bexar County. He testified that Bexar 

County had the highest absentee voting than anywhere in the 

State. He concluded in his Bexar County analysis that 

absentee voting did not change his conclusions. See Findings 

of Fact 19.f. This Court finds that the results would not be 

significantly different in Travis County.

j . Spanish surname counts were based on persons 

who identified themselves in Census counts as being of 

Spanish origin. While the Court recognizes that the Census 

definition of Spanish origin includes many parallel ethnic 

backgrounds, this Court finds that the probability of overlap 

of Black and/or White voters is very slight.



252a

k. Finally, the State Defendants claim that the 

analyses of the Democratic Primary between Judge Gallardo 

(the Hispanic preferred candidate) and McCown is 

misleading. Witnesses for the State Defendants testified that 

Judge Gallardo lost because he was a bad judge. Depositions 

of Becky Beaver & Fernando Rodriguez; Testimony of David 

Richards. While this may be true, under controlling law, it 

is the correlation between the race of the voter and the 

selection of certain candidates that is crucial to this Court’s 

inquiry. Gingles, 478 U.S. at 63.

l. The Court further finds that the Anglo bloc 

vote in Travis County is sufficiently strong to defeat the 

minority community’s preferred candidate. The preferred 

candidate of Hispanic voters lost each election analyzed. Two 

of the Hispanic preferred candidates received approximately 

one third Anglo cross over votes. Plaintiffs’ Exhibits’ Tr- 

02; Tr-19. The other candidate received only approximately 

14% Anglo cross over votes. Id. Tr-02.



253a

m. In each of the hypothetical districts, the 

candidate of choice of the Hispanic community received the 

most votes; in two districts the candidate of choice received 

a majority.

n. Dr. Taebel analyzed the same three elections 

analyzed by Plaintiffs’ expert. State Defendants Exhibit D- 

08; See Appendix B, Re-Evaluation for Travis County p. 1. 

His analysis confirms that in these three races whites and 

Hispanics voted differently and the Hispanic preferred 

candidate lost each time. Id. D-08 pp. 33, 37 & 41. The 

Hispanic preferred candidate fared better in Appellate 

elections winning one primary runoff and two general 

elections. Id. D-08 pp. 25, 29 & 45. Hispanic and white 

voters did not vote differently in these three election contests 

but did so in the 1984 and 1986 Democratic primary for 

County Court numbers 1 and 7. Id. D-08 pp. 33 & 41.

21. Jefferson County.



254a

a. Dr. Brischetto used Black population data by 

precinct from the 1980 Census for all of his analysis in 

Jefferson County. He testified that population had changed 

very little in Jefferson County. Plaintiffs’ Post Trial Brief at 

95. Only those precincts that retained unchanged boundary 

lines were used in his analysis.

b. He analyzed five (5) Democratic primary 

elections, two (2) Democratic primary runoffs and the 1988 

Presidential Democratic primary. See Appendix A, Plaintiffs’ 

Exhibit J-02 pp. 1-2. Four of the five primaries analyzed 

involved Justice of the Peace contests. The fifth was for a 

County Court at Law post. Dr. Taebel did not analyze any 

of these elections. State Defendants’ Exhibit D-09. Each of 

the Justice of the Peace election precincts covered at least an 

entire city which are the largest urban areas of the County. 

Precinct 1 covers the City of Beaumont, Texas. Precinct 2 

covers the City of Port Arthur, Texas. Tom Hanna testified 

in his Deposition that running for office from these precincts



255a

is equivalent to running at large from the two cities. Dr. 

Brischetto testified that there were no primary or general 

elections for District Court seats that pitted Black against 

Anglo.

c. Dr. Brischetto used multivariate regression 

analysis in his examination of Jefferson County separating out 

the effect of the Hispanic vote. He calculated "Partial r" 

values between 66% and 97% for the judicial primaries and 

runoff elections analyzed. Id. The partial r for the Black 

preferred candidate in the Democratic Presidential Primary, 

Jesse Jackson, was 97%. Id. The likelihood that the esti­

mates would occur by change (significance level) was much 

smaller than .05. Id. Dr. Brischetto’s regression analysis 

shows a strong relationship between race and voting patterns 

in Jefferson County. The Black preferred candidate received 

a clear majority of Black community support in at least five 

of the seven judicial contests analyzed. Id. , multivariate and 

homogeneous analysis for 1972 to 1978. In the 1982 primary



256a

for Justice of the Peace, Precinct 1, Place 2, the Black 

preferred candidate Cannon received approximately 51% of 

the Black community vote, while two opponents split the 

remaining 49%.

d. In one instance, the Black preferred candidate

did not receive a majority of the Black community vote. In 

the 1986 Democratic Primary for Justice of the Peace, 

Precinct 1, Place 2, the Black preferred candidate, Wilmer 

Roberts, only received 47% of the Black vote (40% in 

homogeneous precincts). The other 53% (60% in

homogeneous precincts) was split between four candidates. 

John Paul Davis, a Black attorney from Jefferson Country, 

testified in his Deposition that he supported the white 

candidate because she was the most liberal at the time he 

made his choice and Mr. Roberts announced late in the race.

e. The r squared figures range from 44 % for one 

race (1972 runoff) to 94% for three races (1978 & 1982 

judicial primaries and 1988 Presidential primary). It is clear



257a

from Dr. Brischetto’s analysis of voting patterns in Jefferson 

County that as the percentage of Blacks increase in a precinct, 

the percentage of support for the Black preferred candidate 

increases.

f. Dr. Brischetto examined the votes cast in a 

hypothetical district for the 1978 Democratic Primary between 

Mr. Davis and an Anglo opponent. The analysis shows that 

Davis received more votes in each precinct and a majority of 

the vote in the district. Plaintiffs’ Exhibit J-09.

g. State Defendants argue that the three races 

analyzed in 1982, 1986 and 1988 either show no racial 

polarization or a victory for the Black preferred candidate. 

This Court disagrees. As the Court discussed, supra, the 

Black preferred candidate was supported by a majority of the 

Black community in the 1982 Democratic Primary. See 

Finding of Fact 21.c. With reference to the 1986 Democratic 

Primary, the Court finds that the State Defendants’ evidence 

is not conclusive that the Black community either would not



258a

have cohesively supported Wilmer Roberts had he announced 

earlier or that the Black community cohesively supported 

some other candidate. Plaintiffs’ Exhibit J-02; Finding of 

Fact 21.d. The Court further finds that while Jesse Jackson 

may have carried Jefferson County in the 1988 Presidential 

Primary, that fact alone is a far cry from whether the Black 

preferred candidate is successful in Jefferson County.

h. State Defendants further point to the 1984 

Democratic Primary between John Paul Davis and Donald 

Floyd, both of whom are Black, to demonstrate that the Black 

community is not politically cohesive in Jefferson County. 

While Mr. Floyd won the primary and the election, 

Defendants did not demonstrate that the Black community 

split their vote or failed to support one candidate over 

another.

i. This Court finds on the basis of the foregoing 

discussion that the Black community in Jefferson County votes 

cohesively in judicial elections.



259a

j. In at least five of the seven elections analyzed 

it is clear that blacks and whites voted differently and the 

preferred candidate of Black voters lost every time. The 

Black communities candidate of choice received 25% to 41 % 

of the Anglo cross over vote in election years 1972 and 1974. 

The percentage dropped thereafter to a low of 2 % for Wilmer 

Roberts in 1986 and a range of 7% to 10% for the other two 

judicial races. Plaintiffs’ Exhibit’ J-02. Although the Black 

preferred candidate received 70% to 93% of the Black 

community vote in five of the seven elections analyzed they 

still lost countywide.

k. The Court finds that the Anglo bloc vote in 

Jefferson County is sufficiently strong to defeat the minority 

community’s preferred candidate.

l. No Black attorney has run for the position of 

District Judge in Jefferson County. Deposition Summary of 

John Paul Davis. Mr. Davis feels that Black lawyers do not



260a

run for the office because of the high probability of defeat. 

Id.

m. Implementation of single member legislative 

and Commissioner’s Court districts resulted in the election of 

Black preferred candidates to those positions. Deposition 

Summary of Thomas Hanna.

22. Lubbock County

a. Dr. Brischetto used population data from the 

1980 Census precinct boundaries for his analysis in Lubbock 

County. He initially based his review on 30 of 76 precincts 

which had not changed between 1980 and the relevant 

elections analyzed. The analyzed additional precincts that he 

was able to reconfigure by use of Census block maps.29

b. Dr. Brischetto relied on appellate judicial 

contests. He testified that no relevant local judicial contests

29 He analyzed 48 of the 76 total precincts in the 1986 primary, 44 
of 76 in the 1986 runoff, 48 in the 1986 general election and 47 in the 
1988 general election. See Plaintiffs’ Post Trial Brief at 109 n.55.



261a

involved a minority opposed by an Anglo candidate. He 

further testified that he did not analyze local Justice of the 

Peace races because the Justice of the Peace precincts were 

not at least as large as a major city. He analyzed two (2) 

Supreme Court general elections, two (2) Democratic primary 

elections and two (2) Democratic primary runoffs. See 

Appendix A, Plaintiffs’ Exhibit L-02, pp. 1-3.

c. Dr. Brischetto used bivariate, multivariate 

regression and homogeneous precinct analysis in his 

examination of Lubbock County. The bivariate analysis 

produced correlation coefficients in excess of 87% with a 

corresponding r square figure of 76%. Id. He used multiple 

regression analysis to show that Blacks and Hispanics vote 

together. This analysis revealed that the two groups favored 

the same candidates in each election. Id. The lowest partial 

r calculated for Hispanic voters was 78% in the 1986 

Democratic Runoff for Supreme Court place 4. The lowest 

partial r for Black voters was 56% in the 1986 Democratic



262a

Primary for the same Court prior to the runoff election. The 

likelihood that the estimates would occur by chance (signifi­

cance level) was much smaller than .05. Id. Dr. Brischetto’s 

regression and homogeneous precinct analysis shows a strong 

relationship between race/ethnicity and voting patterns in 

Lubbock County. The combined minority preferred candidate 

received a clear majority of combined minority community 

support in each election analyzed. Id.

d. It is clear from Dr. Brischetto’s analysis of 

voting patterns in Lubbock County that as the percentage of 

minorities increase in a precinct, the percentage of support for 

the minority preferred candidate increases. This Court finds 

that Blacks and Hispanics are cohesive as a group in Lubbock 

County judicial elections.

e. Maria Luisa Mercado, a Hispanic attorney from 

Lubbock County, testified that Blacks and Hispanics work 

together in the County on many significant issues. Deposition 

Summary of Maria Luisa Mercado ("Mercado Depo.").



263a

f. The State Defendants point to the 1984 race for 

Justice of the Peace between Sedeno, a Hispanic candidate 

running as a Democrat, against a Black Republican candidate, 

McKinley Shephard to illustrate that Blacks and Hispanics do 

not vote cohesively as a group. The Black boxes voted for 

Mr. Shephard. Mercado Depo. at 2. Dr. Brischetto testified 

that this race was not analyzed because the Justice of the 

Peace precinct in question split the City in half. "It did not 

include a large majority of the County or a large metro­

politan area." Testimony of Dr. Robert Brischetto. This 

Court finds that the Sedeno - Shephard race does not illustrate 

that Blacks and Hispanics do not vote cohesively in at-large 

judicial elections. The Court further finds that Blacks and 

Hispanics opposing each other says less about the collective 

cohesiveness of the two groups when either opposes an 

Anglo.30

30 State Defendants further point to Hispanic - Black state 
representative races in Lubbock County in 1984 and 1986.



264a

g. Minorities and whites voted differently in each 

election analyzed. However, the preferred minority candidate 

won on two of six occasions. Plaintiffs’ Exhibit L-02, p. 2, 

1986 Primary for Court of Criminal Appeals, Place 1 and 

1986 Runoff. In one of those two races, the minority 

preferred candidate received 46% of the Anglo cross over 

votes from homogeneous white precincts of 90% to 100% 

white population. Id., 1986 Runoff. The minority

communities candidate of choice received 39%, 40% and 

41 % of the Anglo cross over vote, respectively, in three other 

elections and still lost. Id., 1986 General Election, 1988 

General Election and 1986 Democratic Primary, Supreme 

Court, Place 4, respectively. The Court finds that the Anglo 

bloc vote in Lubbock County is sufficiently strong to defeat 

the minority community’s preferred candidate.

h. Defendants argue that Justice Gonzalez may 

possibly have received more Anglo votes in the 1986 

Democratic Runoff with 36% than either of his three



265a

opponents, assuming the remaining 64% of the Anglo votes 

were evenly split. Defendants conclude on that basis that 

Anglos did not vote overwhelmingly against Justice Gonzalez. 

This Court disagrees. Assuming arguendo that Defendants 

assumption is correct, the Court finds that Anglo’s did 

overwhelmingly vote against Justice Gonzalez even if they did 

not vote overwhelmingly for a different candidate.

i, Dr. Brischetto testified concerning some 

county wide elections in Jones v. City o f Lubbock, 727 F.2d 

364, 383 (5th Cir. 1984). His conclusions in Jones 

corroborate his testimony in this case.

j. Ms. Mercado testified that Black and Hispanic 

candidates have not been successful in at large elections. 

Mercado Depo. She testified that she carried all minority 

boxes and zero Anglo boxes in her 1978 bid for City Council. 

Id. Blacks and Hispanics have been successful running for 

School Board and County Commissioner’s positions after the 

implementation of single member districts. Id.



266a

k. Dr. Taebel only analyzed two of the same 

Appellate Court contests analyzed by Dr. Brischetto. State 

Defendants’ Exhibit D-10 pp. 17 & 25. In both, minorities 

and whites voted differently and the minority choice lost. 

Similar results were obtained in two County Court at Law 

General Elections analyzed by Dr. Taebel. Id. D-10 pp. 5 &

9. However, in those two races there was no minority

candidate. See Appendix B, Re-Evaluation of Lubbock 

County.

23. Ector County

a. Dr. Brischetto used population data from the

1980 Census precinct boundaries to analyze 24 of the 31 total 

precincts in Ector County which had not changed between 

1980 and the relevant elections analyzed. As in Lubbock 

County, he relied on appellate judicial contests. He analyzed 

two (2) Supreme Court General Elections and two (2) 

Democratic Primary Elections. See Appendix A, Plaintiffs’ 

Exhibit E-02, pp. 1-2̂  He testified that no County or District



267a

Court contests involved a minority opposed by an Anglo 

candidate.

b. Dr. Brischetto used the same statistical analysis 

used in Lubbock County. Bivariate analysis was used to 

separate the white and minority votes. Testimony of Dr. 

Robert Brischetto. Multivariate analysis was used to separate 

the Black and Hispanic vote. Id. The bivariate analysis 

produced correlation coefficients in excess of 78% with a 

corresponding r square figure of 61%. Plaintiffs’ Exhibit E- 

02, pp. 1-2. Multiple regression analysis shows that Blacks 

and Hispanics vote together. This analysis revealed that the 

two groups favored the same candidates in each election. Id. 

The lowest partial r calculated for Hispanic voters was 46% 

in the 1986 Democratic Primary for Supreme Court Place 4. 

The lowest partial r for Black voters was 60% in the 1988 

General Election for Supreme Court, Place 3. The likelihood 

that the estimates would occur by chance (significance level)



268a

was much smaller than .05. Testimony of Dr. Robert 

Brischetto.

c. A clear majority of the combined minority 

community supported the preferred minority candidate in each 

election analyzed. Even in the race for Supreme Court, Place 

4, Justice Gonzalez, received 42% of the Hispanic vote and 

65% of the Black community vote. Id. Dr. Brischetto5s 

regression and homogeneous precinct analysis shows a strong 

relationship between race/ethnicity and voting patterns in 

Ector County. The lowest level of combined support is 

reflected as 50% in the Democratic Primary for Supreme 

Court, Place 4. Id., Homogeneous precinct analysis, p. 2. 

Dr. Brischetto attributes the lack of stronger minority group 

cohesiveness in that race to the fact that one of the candidates 

in the Primary was from Ector County. Id. , Candidate 

Gibson. However, in the General Elections for 1986 and 

1988, homogeneous precincts of 80% or more combined



269a

minority gave more than 80% of their vote to the minority 

preferred candidate.

d. It is clear from Dr. Brischetto’s analysis of 

voting patterns in Ector County that as the percentage of 

minorities increase in a precinct, the percentage of support for 

the minority preferred candidate increases. This Court finds 

that Blacks and Hispanics are cohesive as a group in Ector 

County judicial elections.

e. Minorities and whites voted differently in each 

election analyzed. Minorities supported the minority 

preferred candidates in much greater percentages than Anglo 

voters. The preferred minority candidate won only one race 

analyzed. See Plaintiffs’ Exhibit E-02, p. 2, 1986 Primary 

for Court of Criminal Appeals, Place 1.

f. Minorities have been elected to Justice of the 

Peace and County Commissioner’s positions from 

predominately minority precincts. Deposition Summary of 

Lawrence Leo Barber ("Barber Depo.")



270a

g. Dr. Taebel’s analysis of the same two Appellate 

Court contests confirmed Dr. Brischetto’s analysis. State 

Defendants’ Exhibit D -ll pp. 21 & 37. In both, minorities 

and whites voted differently and the minority choice lost. Dr. 

Taebel further analyzed five (5) General Election judicial 

contests that did not involve positing an Anglo against a 

minority. Id. pp. 5, 9, 13, 29 & 33. Minorities and whites 

voted differently and the minority preferred candidate lost in 

three of the five. See Appendix B, Re-Evaluation of Ector 

County.

24. Midland County

a. Dr. Brischetto based his analysis on population

data from the 1980 Census. He analyzed 11 of the 36 total 

precincts for 1986 and 10 of 36 for 1988 that had boundaries 

that had not changed. He was also able to reconfigure 

boundaries for 22 precincts in 1986 and 23 in 1988. Testi­

mony of Dr. Robert Brischetto. He relied on appellate races 

and one Justice of the Peace race since there have been no



271a

local county wide election contests in which minorities opposed 

Anglos. The Justice of the Peace race encompassed the entire 

City of Midland. Testimony of Aquilla Watson. He analyzed 

three elections in total. See Appendix A, Plaintiffs’ Exhibit 

M-02. Dr. Taebel did not analyze the Justice of the Peace 

contest.

b . Dr. Brischetto used bivariate regression analysis 

in Midland County. The bivariate analysis produced 

correlation coefficients in excess of 89 % with a corresponding 

r square figure of 79%. Id. Better than 85% of the 

combined minority voted for the minority preferred candidate 

in each race. Id. The likelihood that the estimates would 

occur by chance (significance level) was much smaller than 

.05. Testimony of Dr. Robert Brischetto. Dr. Brischetto’s 

regression and homogeneous precinct analysis shows a strong 

relationship between race/ethnicity and voting patterns in 

Midland County.



272a

c. It is clear from Dr. Brischetto’s analysis of 

voting patterns in Midland County that as the percentage of 

minorities increase in a precinct, the percentage of support for 

the minority preferred candidate increases. This Court finds 

that Blacks and Hispanics are cohesive as a group in Midland 

County judicial elections.

d. It is further clear that minorities and whites 

voted differently in each election analyzed. Minorities 

supported the minority preferred candidate in much greater 

percentages than Anglo voters. The preferred minority 

candidate lost each race analyzed despite the large percentages 

of combined minority support. Id.

e. This analysis is supported by Dr. Brischetto’s 

analysis and testimony in Lulac v. Midland ISD, 648 F.Supp. 

596, 600 (W.D. Tex. 1986), aff’d, 812 F.2d 1491 (5th Cir. 

1987), vacated 829 F.2d. 546. Plaintiffs’ Exhibit M-05.

f. Aquilla Watson testified that she received very 

few Anglo votes. She only carried four (4) of the thirty-six



273a

(36) precincts. Only one of the four included some Anglo 

cross over votes. Testimony of Aquilla Watson. Minorities 

have been elected to the School Board and County 

Commissioner’s Court from predominately single member 

districts. Id.

g. Dr. Taebel analyzed four (4) judicial contests 

in which a minority candidate ran against one or more white 

candidates. State Defendants’ Exhibit D-12 pp. 9, 21, 25 & 

29. Minorities and whites voted differently and the minority 

choice lost in the two General Elections analyzed. Id. pp. 25 

& 29. The minority choice also lost in both primary 

elections, but there is some indication that minorities and 

some white voters voted the same. Id. pp. 9 & 21. See 

Appendix B, Re-Evaluation of Midland County.

ACCESS TO THE POLITICAL PROCESS 

History of Discrimination

25. The effect of past discrimination against Blacks 

and Hispanics in areas such as education, employment and



274a

health in most of the Counties in question is either well 

chronicled or undisputed. See, e.g. , Lulac v. Midland ISD, 

648 F.Supp. 596, 600 (W.D. Tex. 1986), aff’d, 812 F.2d 

1491 (5th Cir. 1987), vacated 829 F.2d 546; Campos v. City 

o f Baytown, 840 F.2d 1240, 1243 (5th Cir. 1988), reh’g

denied, 849 F.2d 1240, cert, denied, ___U.S. ___(1989);

Lipscomb v. Jonsson, 459 F.2d 335 (5th Cir. 1972); Graves 

v. Barnes, 343 F.Supp. 704, 725 n.15, 730-34 (W.D. Tex. 

1972), rev’d in part and remanded sub nom, White v. 

Regester, 412 U.S. 755 (1973), on remand, 378 F.Supp. 640, 

644 (1974); Terrazas v. Clements, 581 F.Supp. 1329, 1334 

(N.D. Tex. 1984); United States v. Texas Ed. Agcy., Etc., 

564 F.2d 162, 163 (5th Cir. 1977), reh’g denied, 579 F.2d 

910 (1978), cert, denied, 443 U.S. 915 (1979); Blackshear 

Residents Organization v. Housing Auth. o f City o f Austin, 

347 F.Supp. 1138 (W.D. Tex. 1971); Jones v. City of 

Lubbock, 727 F.2d 364, 383 (5th Cir. 1984); United States 

v. CRUCIAL, 722 F.2d 1183, 1185 (5th Cir. 1983). See also



275a

Plaintiffs and Plaintiff-Intervenors Exhibits reflecting social 

stratification.

26. This history touched upon many aspects of the 

lives of minorities in the Counties in question including their 

access to and participation in the democratic system governing 

this State and their socio-economic status. "The 

administration of justice in Texas was overwhelmingly 

dominated by Anglo males in 1968, and the overall pattern 

[had] changed very little" by 1978. Plaintiffs’ General 

Exhibit ("Gen") 02, Texas: The State o f Civil Rights (Ten 

Years Later, 1968-1978), A Report of the Texas Advisory 

Committee to the United States Commission on Civil Rights 

at 22 (1980); City o f Port Arthur, Texas v. United States, et 

ah, 517F.Supp. 987, 1020 (D.D.C. 1981) (three judge court), 

ajf’d, 459 U.S. 159 (1982).

Enhancement

27. Candidates for District Court must run for a

specific Judicial District Court seat. This is equivalent to a



276a

numbered post system.31 District Judges must be nominated

in the primary by a majority of the votes.

"This provision insures that essentially white voting 
majorities have a ’second shot’ at [minority] candidates 
who have failed to muster a majority of the votes in 
the first election. Time and again, in election after 
election, minority candidates win a plurality in the first 
election, only to lose the runoff in highly racially 
polarized voting."

Testimony of Dr. Charles Cotrell at 491, Hearings Before the 

Subcommittee on Constitutional Rights of the Committee on 

the Judiciary, United States Senate (94th Cong. 1st Sess.) S. 

407, S. 903, S. 1409, S. 1443 (1975); Plaintiffs’ Exhibit 

Gen.-03 at 491. Finally, the size of at least five of the nine 

target counties further enhance the problems that minority 

candidates face when they seek office. Plaintiffs’ Exhibit Tr- 

15 shows that Harris, Dallas, Tarrant, Bexar and Travis

31 "A numbered-post system requires a candidate to declare for a 
particular seat on a [Gjovemmental body. The candidate then runs only 
against other candidates who have declared for that position. The voters 
then have one vote for that seat. The system prevents the use of bullet, 
or single shot, voting. Campos, 840 F.2d at 1242 n .l [citing Gingles, 
478 U.S. 38-9 nn. 5 & 6].



277a

Counties have very large populations. See also Plaintiffs’ 

Exhibit P-I D-4.

Slating

28. Slating has been defined as the creation of a 

package or slate of candidates, before filing for office, by an 

organization with sufficient strength to make the election 

merely a stamp of approval of the pre-ordained candidate 

group. Overton, 871 F.2d at 534. Dr. Wiser depicted the 

Republican Party in Dallas County as a white-dominant 

slating group. This Court finds that such characterization is 

at odds with the governing law and facts of this case. 

Plaintiffs and Plaintiff-Intervenors did not present evidence of 

slating in Harris, Tarrant, Bexar, Travis, Jefferson, Lubbock, 

Ector and Midland Counties.

Racial Appeals

29. Plaintiff-Intervenor for Dallas County, Joan 

Winn White, argued that racial appeals were injected into her 

1980 judicial race against Charles Ben Howell when an



278a

advertisement he ran made reference to his opponent (Ms. 

White) as the "affirmative action appointee." Plaintiffs 

Exhibit P-I D-30. The Court notes and Ms. White testified 

that the term "affirmative action" is used in reference to sex 

as well as race. The Court finds that there is nothing 

inherently racist about referring to an affirmative action 

judicial appointment.

30. Plaintiff-Xntervenors from Dallas County also 

argue that racial appeals were inserted into the 1986 election 

between Royce West and John Vance and the 1988 

Republican Primary between Larry Baraka and Brook Busby. 

This Court agrees. In the West - Vance race, Mr. Vance 

made a racial appeal by inserting his opponent’s picture in a 

campaign advertisement financed by Mr. Vance’s campaign. 

In the Baraka - Busby race, Ms. Busby campaigned with 

literature pointing out that her opponent was a Black Muslim. 

Plaintiffs and Plaintiff-Intervenors did not present evidence of 

racial appeals in the remaining Counties at issue.



279a

Electoral Success

31. Since 1980, seventeen Blacks have run for State 

District Court Judge in Harris County. Only 2 (approx. 12%) 

won. Plaintiffs’ Exhibit H 07. Seven Blacks have opposed 

Anglos in District Court General Elections in Dallas County 

and won only two elections (29%). Plaintiffs’ Exhibit D-09. 

However, neither of these candidates was the candidate of 

choice of the Black community. Only one Hispanic candidate 

of choice won in Bexar County in six Hispanic - Anglo 

elections. Plaintiffs’ Exhibit B -ll. The Black community’s 

preferred choice achieved the District Court bench only once 

out of three elections when Blacks ran against Anglos in 

Tarrant County. Plaintiffs’ Exhibit Ta-07. Only one 

Hispanic candidate ever ran against an Anglo for a District 

Judge seat in Travis County. The Hispanic candidate lost. 

Plaintiffs’ Exhibit Tr-11. No minority candidate has run for 

the office of District Court Judge in Jefferson County. John 

Paul Davis testified at his deposition that the at-large system



280a

discourages eligible Black attorneys from running because the 

chance of success is so slim. At least three Black attorneys 

sought appointment to the District Court bench. Deposition 

Summary of John Paul Davis ("Davis Depo."). Similar 

testimony was elicited on behalf of Plaintiffs in Lubbock 

County. Mercado Depo. No minority candidate has run for 

District Court Judge in Lubbock, Ector or Midland County.

32. State Defendants argue that the eligible pool of 

minority lawyers, rather than eligible minority voters, is the 

appropriate reference point for evaluating the extent of 

electoral success. State Plaintiffs’ Exhibit D-04. The Court 

notes that the two cases relied upon by the State involve Title 

VII issues and do not address the relevant statistical pool in 

a § 2 case. See Richmond v. J.A. Croson Co., 109 S.Ct. 

706, 725-26 (1989); Wards Cove Packing Co. v. Atonio, 109 

S.Ct. 2115, 2121-22 (1989). State Defendants recognize that 

the pool of eligible lawyers is small, due in part, to historical 

discrimination. The Court finds that even if there is some



relationship between the low number of minority judges and 

the number of eligible minority lawyers, that fact does not 

explain why well qualified eligible minority lawyers lose 

judicial elections.

Responsiveness

33. This Court cannot find anything in the record 

to suggest a lack of responsiveness on the part of Judges in 

any of the Counties in question to the particularized needs of 

members of the minority community.

Tenuousness

34. Several reasons were offered for the 

maintenance of the at-large system. State Defendants and 

Defendant-Intervenor Wood argued that (1) judges elected 

from smaller districts would be more susceptible to undue 

influence by organized crime; (2) changes in the current 

system would result in costly administrative changes for 

District Clerk’s offices; and (3) the system of specialized 

courts in some counties would disenfranchise all voters rights

281a



282a

to elect judges with jurisdiction over some matters. Plaintiff- 

In tervenors, HLA, allege that the at large scheme was 

adopted with the intention to discriminate against Black voters 

in violation of the Fourteenth Amendment to the United States 

Constitution.

35. Chief Justice of the Texas Supreme Court, 

Thomas Phillips, testified that the purpose of Article 5, 

Section 7a(i) of the Texas Constitution was to create the 

Judicial Districts Board which could equalize the dockets of 

District Judges. To further that goal, Article 5, Section 7a(i) 

requires that judges be elected from districts no smaller than 

a county. Apparently, the rationale for such provision is that 

District Judges should not be responsible to voters over an 

area smaller than area where they have primary jurisdiction.

36. Plaintiff-Intervenors offered the Deposition 

summary of Senator Craig Washington in support of their 

claim that discriminatory intent was the focus of the 

legislative deliberations surrounding the passage of Section



283a

7a(i). The Court notes that Senator Washington sat on the 

Conference Committee and signed the Conference Committee 

Report recommending the adoption of the Senate Joint 

Resolution containing the exact language of Section 7a(i), 

Tex. S.J. Res. 14, 69th Leg. (1985). See Defendant 

Intervenor Wood’s Exhibit 59. Subsequently, Senator 

Washington on the Senator floor voted for the adoption of 

S.J. Res. 14. Id. The Court further notes that three Hispanic 

Senators voted in favor of S.J. 14: Senator Barrientos, 

Senator Truan and Senator Uribe.

37. Plaintiffs and Plaintiff-Intervenors have the 

burden to establish that the at-large system is maintained on 

a tenuous basis as a pretext for discrimination. Overton, 871 

F.2d at 535. While the Court does not find that the present 

system is maintained on a tenuous basis as a pretext for 

discrimination, the Court is not persuaded that the reasons 

offered for its continuation are compelling.



284a

38. Under a single member scheme or some other 

scheme Judges may be made responsible to voters over an 

area no smaller or larger than the area where they have 

primary jurisdiction. This Court finds no reason why all 

Judges cannot exercise general jurisdiction over their 

geographic area of responsibility. The Court further finds 

that administrative functions and jury selection could continue 

to be done on a county wide basis.

39. Our legislative body has seen fit in the past to 

create in some counties specialty courts. In the mind of this 

Court, this is wrong. Judges of civil dockets or judges of 

criminal dockets have equal access to legislation and 

published opinions. They are not intellectually inferior to 

judges who hear civil, criminal and domestic cases. The 

body of law is large, but is handled capably and well by most 

judges in this State who hear all types of litigation. Lawyers 

specialize. Judges are capable of rendering fair, honest and



285a

just decisions without concentrating in one narrow field of 

law.

STATE DEFENDANTS’ ANALYSIS 

General

40. State Defendants argue that the Supreme Courts 

incorporation in Gingles, of the Senate Report accompanying 

the 1982 Amendment to § 2, signals a return to the Supreme 

Court’s pre-Gingles analysis in Whitcomb v. Chavis, 403 U.S. 

124 (1971). In Whitcomb, the Supreme Court rejected a 

racial vote dilution challenge to an at-large system for electing 

state legislators, essentially on the ground that partisan 

preference best accounted for electoral outcomes in Marion 

County, Indiana. The Court in Whitcomb concluded that 

there was no indication in the record of that case that Blacks 

were being denied access to the political system.

41. This Court is not convinced that the State 

Defendants are making the correct call. In any event, the 

Court finds that this Court’s analysis of the Senate factors



286a

applicable to the present case point to the continual effects of 

historical discrimination hindering the ability of minorities to 

participate in the political process.

42. Next, State Defendants are of the opinion that 

there are really two questions before this Court, depending on 

what electoral stage is being analyzed. At the primary stage 

the question is whether the minority candidate of choice in the 

Democratic Primary is prevented more often than not by a 

Democratic white bloc vote from being the party’s nominee 

in the General Election. State Defendants’ Post Trial Brief at 

9. At the General Election stage the question becomes 

whether there is a pattern of substantial desertion from the 

Democratic party by white voters to vote for a Republican 

candidate, thereby denying victory to the minority candidate 

of choice. Id. at 10. This Court finds such a distinction 

unimportant. Assuming the first two elements of the Gingles 

test are met and the Senate factors point to vote dilution, it is 

unimportant whether a white bloc vote, which is sufficient -



287a

absent special circumstances - usually to defeat the minority’s 

preferred candidate, takes place at one election stage, both 

stages or by Democrats or Republicans.

43. The issue of partisan voting was before the 

Supreme Court in Gingles. The Court had no difficulty 

concluding that voting polarized along racial, not partisan, 

lines. Gingles, 478 U.S. at 61-62. Party affiliation is simply 

irrelevant under the controlling law. Further, "the addition 

of irrelevant variables [to regression or statistical analysis] 

distorts the equation and yields results that are indisputably 

incorrect under § 2 and the Senate Report." Id. at 64.

Statistical

44. The complete data set used by Dr. Engstrom in 

Harris and Dallas Counties was used by Defendant’s expert, 

Dr. Taebel for his analysis of those Counties. Dr. Taebel’s 

data set for analysis in the other seven counties appears to be 

very similar. He did drop homogeneous precincts from his 

analysis if there was more than a ten percent (10%) change



288a

in precinct boundary census data since the 1980 Census 

counts. Dr. Taebel analyzed both primary and General 

Elections in not only minority - Anglo contests, but also 

minority Republican candidates opposed to white candidates 

and white - white contests. He also analyzed elections in 

which the minority preferred candidate ran unopposed. This 

Court finds that unopposed election contests and white versus 

white contests are not germane in this Circuit to this Court’s 

analysis. Westwego Citizens For Better Government v. 

Westwego, 872 F.2d 1201, 1208 n. 7 (5th Cir. 1989); 

Campos v. City o f Baytown, 840 F.2d 1240, 1245 (5th Cir.

1988), reh’g denied, 849 F.2d 1240, cert, denied,__U.S.

_ (1989); Citizens For a Better Gretna v. City o f Gretna, 834 

F.2d 496, 503 (5th Cir. 1987).

CONCLUSIONS OF LAW

1. This Court has jurisdiction pursuant to 28 

U.S.C. § 1331, 18 U.S.C. § 1432 and 42 U.S.C. § 1973C.



289a

Venue is proper in this District pursuant to 28 U.S.C. § 

1400(b).

2. It is settled in this Circuit that § 2 of the 

Voting Rights Act applies to the judiciary. Chisom v. 

Roemer, 839 F.2d 1056 (5th Cir. 1988), cert, denied, sub 

nom, Chisom v. Edwards, 109 S.Ct. 310 (1989) (Chisom I). 

However, it is clear that at-large judicial elections may not be 

considered per se violative of § 2. Furthermore, the Court 

holds that § 2 applies equally as well to State District Judicial 

elections as it does to appellate elections.32

Standard Under The Voting Rights Act

3. In Thornburg v. Gingles, 478 U.S. 30, 106 

S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court 

construed Section 2 of the Voting Rights Act, as amended, to

32 State Defendants argue that State District Judgeships cannot be 
analogized to legislative or appellate posts, which by nature are 
characterized by collegial decision making. While the Court recognizes 
that State District Judges function as sole, independent decision makers, 
the Court concludes that there is no indication that Chisom's extension of 
§ 2 to judicial elections was meant to be limited to collegial judicial 
bodies.



290a

require a three-part threshold test to demonstrate a violation 

of Section 2. The minority group must be able to 

demonstrate: that (1) it is sufficiently large and geographically 

compact to constitute a majority in a single-member district 

("Gingles 1"); (2) it is politically cohesive ("Gingles 2"); and 

(3) the white majority votes sufficiently as a bloc to enable it 

-in the absence of special circumstances - usually to defeat the 

minority’s preferred candidate ("Gingles 3"). Gingles, 478 

U.S. at 50-52. Failure to establish any one of the three 

threshold criteria is fatal to Plaintiffs’ case. Overton, 871 

F.2d at 538.

4. However, Plaintiffs do not achieve victory by 

satisfying the three Gingles factors alone. Monroe v. City of 

Woodville, No. 88-4433, slip op. at 5571, (5th Cir. Aug. 30, 

1989). Instead, Plaintiffs must prove under the totality of 

the circumstances that as a result33 of the challenged at large

33 In White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 
(1973), the Supreme Court applied what has come to be known as the 
"results test” indicating that a violation of § 2 could be proved by showing



291a

system Plaintiffs do not have an equal opportunity to partici­

pate in the political processes and to elect candidates of their 

choice. Id. at 5571; Gingles, 478 U.S. at 44. The Senate 

Report which accompanied the 1982 amendment to § 2 

specifies certain objective factors which typically may be 

relevant to a § 2 claim.34 S. Rep. No. 97-417 (1982) (here­

discriminatory effect alone. (Emphasis added.) Congress made clear by 
the 1982 amendment to § 2 that the "results test" is the relevant legal 
standard to be applied by this Court.

34 Typical factors include:
"1. the extent of any history of official discrimination 

in the state or political subdivision that touched the right of the members 
of the minority group to register, to vote, or otherwise to participate in the 
democratic process;

"2. the extent to which voting in the elections of the 
state or political subdivision is racially polarized;

"3. the extent to which the state or political subdivision 
has used unusually large election districts, majority vote requirements, 
anti-single shot provisions, or other voting practices or procedures that 
may enhance the opportunity for discrimination against the minority group;

"4. if there is a candidate slating process, whether the 
members of the minority group have been denied access to that process;

"5. the extent to which members of the minority group 
in the state or political subdivision bear the effects of discrimination in 
such areas as education, employment and health, which hinder their ability 
to participate effectively in the political process;

"6. whether political campaigns have been characterized 
by overt or subtle racial appeals;

"7. the extent to which members of the minority group 
have been elected to public office in the jurisdiction.

"Additional factors that in some cases have had probative 
value as part of [Plaintiffs’ evidence to establish a violation are:



292a

inafter S. Rep.). This list of factors is neither comprehensive 

nor exclusive.35 "There is no requirement that any particular 

number of factors be proved, or that a majority of them point 

one way or the other." Gingles, supra, at 45 [quoting S.Rep. 

at 29],

5. Gingles, 1 requires proof that the minority 

population is sufficiently large and geographically compact to 

constitute a majority in a single member district. Gingles, 

supra, at 50. To satisfy the Gingles 1 requirement, Plain­

tiffs must be able to draw a single member district in which 

a majority of the voting age population is minority. Overton, 

871 F.2d at 535. Plaintiffs have satisfied this requirement 

with regard to all of the nine target counties at issue in this

"whether there is a significant lack of responsiveness on 
the part of elected officials to the particularized needs of the members of 
the minority group.

"whether the policy underlying the state or political 
subdivision’s use of such ... voting practice or procedure is tenuous." 
S.Rep. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S. 
Code Cong. Admin.News 177, 206-207.

35 S. Rep. No. 97-417 (1982).



293a

case. The minority population is sufficiently large and 

geographically compact to constitute a majority in at least one 

single member district; Black, Hispanic or combined, in each 

of the nine counties at issue in this case.

6. Evidence of racially polarized voting "is the 

linchpin of a ection 2 vote dilution claim," Citizens For a 

Better Gretna v. City o f Gretna, 834 F.2d 496, 499 (5th Cir. 

1987) and is relevant to establishing two of the three elements 

set forth in the Gingles decision - the minority groups 

political cohesiveness (Gingles 2) and the ability of the white 

majority usually to defeat the minority's preferred candidate 

0Gingles 3). Westwego Citizens For Better Government v. 

Westwego, 872 F.2d 1201, 1207 (5th Cir. 1989) [citing 

Gingles, supra, at 56], These factors are usually established 

by statistical evidence of racially polarized voting by the 

voters in the relevant political unit. Campos v. City of 

Baytown, 840 F.2d 1240, 1243 (5th Cir. 1988), reh’g denied, 

849 F.2d 1240, cert, denied,__ _ U .S .__(1989).



294a

7. In analyzing statistical data, the best available 

data for estimating the voting behavior of various groups in 

the electorate would come from exit polls conducted upon a 

random sample of voters surveyed as they leave the polling 

place on election day, but such evidence was not introduced 

at trial. See Chisom v. Roemer, No. 86-4057, slip op. at 11 

(E.D. La. Sep. 13, 1989) (Chisom II); Defendant-Intervenor 

Wood’s Ex. 40. The best available data for estimating the 

participation of various groups in the electorate is sign-in data 

contained in the official records of registered voters. Chisom 

II, slip op. at 12. The best indicator of participation is 

obtained by dividing the number of persons who signed-in to 

vote by the number of persons in the voting age population. 

Id. at 12.

8. Absent an exit poll, sign-in data and voting age 

population data, analysts employ the bivariate ecological



295a

regression technique to estimate the voting behavior of 

various groups in the electorate.36 37 Id. at 12.

9. For purposes of political cohesiveness and 

racially polarized voting, examining only those elections that 

had a minority member as a candidate, is the proper method 

of analysis. Campos, 840 F.2d at 1245. In order to show 

cohesion, the proper standard is the same as Gingles: whether 

the minority group together votes in a cohesive manner for 

the minority candidate. Id.31 In counties where Plaintiffs 

proceed on behalf of a combined minority, if the statistical 

evidence is that Blacks and Hispanics together vote for the 

Black or Hispanic candidate, then cohesion is shown. Of 

course, if one part of the group cannot be expected to vote

36 Like the Court in Chisom II, this Court is not convinced that 
precise correlation between the race of voters and their voting preferences 
can be made on the basis of the statistical analysis presented. However, 
no better data is provided, and the Court has given the statistical data 
considerable weight. See Chisom II, slip op. at 13.

37 The Court in Campos rejected the City of Baytown’s argument that 
in order to show cohesion when there are two minorities that make up the 
minority group, Plaintiffs must show first that Blacks are cohesive, next, 
that Hispanics are cohesive and finally, that Blacks and Hispanics together 
are cohesive. Campos, 840 F.2d at 1245.



296a

with or does not vote with the other part, the combination is 

not cohesive. Id.

10. In evaluating the statistics necessary for 

Plaintiffs to prove racial bloc voting, this Court is bound by 

recent Fifth Circuit authority to consider statistical evidence 

from judicial elections and from exogenous elections/8

11. This Court is satisfied that the statistics relating 

to exogenous elections in the present case qualify as a suffi­

ciently "local appraisal" to establish some degree of racial 

bloc voting.

12. This Court concludes under the controlling law 

that the statistical evidence furnished by the expert witnesses 

for Plaintiffs and Plaintiff-Intervenors to be legally competent 38

38 See Chisom II, slip op. at 40; Citizens for a Better Gretna, 834 
F.2d at 499. "Exogenous" elections are those which overlap the 
boundaries of the relevant unit. "Exogenous" elections are contrasted with 
"indigenous" elections which involve only the geographic unit at issue. 
Westwego, 872 F.2d at 1206, n. 10. County-wide elections represent the 
relevant geographic unit in the present case.



297a

and highly probative. Gingles, 478 U.S. at 52-54; Overton,

871 F.2d at 537-540.39

13. The final determination, however, must be 

made by an evaluation of the "totality of the circumstances," 

including the factors listed in the Senate Report. Westwego,

872 F.2d at 1206. The Court must determine, on the basis 

of a "searching, practical evaluation," of past and present 

reality whether the political process is open to minority 

voters. Gingles, 478 U.S. at 45 [quoting S.Rep. at 30, 

U.S.Code Cong. & Admin.News 1982, p. 208], Such a 

determination is dependent on the facts of each case and 

requires "an intensely local appraisal of the design and impact 

of the contested electoral mechanisms." Gingles, 478 U.S, at 

79 [quoting Rodgers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 

73 L.Ed.2d 1012 (1982)]. The appraisal in this case must be

39 Unlike the statistical analysis in Overton, Plaintiff and Plaintiff- 
Intervenors’ experts in the present case established confidence levels of 
statistical significance and used consistent measures of minority voting 
strength. Overton, 871 F.2d at 537-540.



298a

conducted on a district-by-district basis. Gingles, supra, at 

59 n. 28 (the inquiry into the existence of vote dilution is 

district-specific).

14. This Court recognizes that judicial elections are 

characterized by less voter interest than high profile 

candidates receive at the top of the ticket. However, under 

the controlling law, party affiliation, straight party ticket 

voting and campaign factors do not constitute legally 

competent evidence in the present case. This Court rejects 

the State Defendants’ argument that there can be no 

"functional view of the political process" without taking into 

account political party as the principal factor affecting such 

races. The Supreme Court in Gingles made clear that it is 

the difference between choices made by blacks and whites 

alone and not the reasons why they vote differently that is the 

central inquiry of § 2. Gingles, 478 U.S. 61-62.

15. Congress and the Courts have recognized that 

"political participation by minorities tends to be depressed



299a

where minority group members suffer effects of prior 

discrimination such as inferior education, poor employment 

opportunities, and low incomes." Gingles, 478 U.S. at 69. 

Congress clearly concluded that provisions such as majority 

vote requirements, designated posts, and prohibitions against 

bullet voting could serve to further dilute the voting strength 

of minorities. Id. at 56; Jones v. City o f Lubbock, 727 F.2d 

at 383 (finding that majority vote requirement further 

submerges political minorities).

16. This Court concludes that under the relevant 

law the at-large system for election State District Judges in 

the nine target counties interacts with social and historical 

conditions to cause an inequality in the opportunity enjoyed 

by black and white voters to elect their preferred candidates. 

Gingles, 478 U.S. at 47.

17. Defendants’ lead expert, Dr. Taebel reviewed 

many selection contests which the Fifth Circuit determined are 

not germane to Voter Dilution Cases. Dr. Taebel analyzed



300a

races in which Anglos opposed Anglos. Campos v. City of 

Baytown, 840 F.2d 1240, 1245 (5th Cir. 1988). Dr. Taebel 

also reviewed non-judicial elections.

18. Costly reorganization of the State at-large 

system of general and specialized Courts and disruption of 

County administrative duties such as jury selection are not 

sufficient grounds for maintaining an otherwise flawed 

system. Westwego, 872 F.2d at 1211 [in reliance on Dillard 

v. Crenshaw County, 831 F.2d 246, 250-51 (11th Cir. 1986)].

19. Congress did not contemplate that such 

considerations would play a role in determining whether there 

has been a violation of section 2. Id. at 1210-11.

20. On the strength of the evidence of racially 

polarized voting in the context of the "totality of the 

circumstances" test and considering the substantial evidence 

presented by Defendants to the contrary, this Court concludes 

that Plaintiffs have demonstrated a violation of § 2 of the



301a

Voting Rights Act in each of the nine counties in question. 

Westwego, 872 F.2d at 1203 & 1209.

Fourteenth and Fifteenth Amendment Claims

21. Proof of racially discriminatory intent or 

purpose is required to show a violation under either the 

Fourteenth or Fifteenth Amendment to the United States 

Constitution. Chisom II, supra, at 41 [citing: Kirksey v. City 

o f Jackson, Miss., 663 F.2d 659 (5th Cir. 1981); Washington 

v. Davis, 426 U.S. 229, 239-41 1976)].

22. Proving racial discrimination as the motivating 

factor in a state legislative body "is often a problematic 

undertaking." Hunter v. Underwood, 471 U.S. 222, 227-28 

(1985). Proof must be presented that the legislative body as 

a whole possessed the intent to discriminate. Id. at 229-32. 

It is impossible to conceive that four leading minority 

members of the State Senate would vote to send an



302a

individiously discriminatory measure affecting the entire state 

to the voters with their own seal of approval on it.

23. Plaintiffs and Plaintiff-Intervenors failed to 

prove, as a matter of law, that the present at large system for 

electing State District Judges in the State of Texas was 

instituted with the specific intent to dilute, minimize or cancel 

the voting strength of Black and/or Hispanic voters. 

Accordingly, the Court is of the opinion that the following 

Orders are appropriate:

IT IS ORDERED that the present at-large system of 

electing State District Judges in the counties of Harris, Dallas, 

Tarrant, Bexar, Travis, Jefferson, Lubbock, Ector and 

Midland violates Plaintiffs’ civil rights by unconstitutionally 

diluting the voting strength of Hispanic and Black electors in 

violation of Section 2 of the Voting Rights Act of 1965, as 

amended, 42 U.S.C. § 1973 (West Supp. 1989).

IT IS FURTHER ORDERED that Plaintiffs and 

Plaintiff-Intervenors request to Permanently Enjoin the State



303a

of Texas from calling, holding, supervising or certifying any 

future elections for State District Judges under the present at 

large scheme in the target areas is taken under advisement. 

The Court recognizes the possibility that corrective relief may 

be available at a later date before future elections for State 

District Judges take place. Chisom v. Roemer, 853 F.2d 

1186, 1189 (5th Cir. 1988).

The Court is hopeful that Governor Clements will 

include the issue of an alternative State District court election 

scheme as part of his call of the Special Legislative Session 

on November 13, 1989. Depending on the progress that is 

made in the Legislature, if any, prior to January 3, 1990, the 

Court will thereafter entertain a Restraining Order or Motion 

to Enjoin future State District Court elections pending the 

Remedy Phase of this litigation.

IT IS FURTHER ORDERED that the issues of Costs 

of Court and attorneys fees are expressly reserved until the 

conclusion of this litigation.



304a

Chief Judge Charles Evans Hughes, in 1936, in an

address to the American Law Institute, said:

How amazing it is that, in the midst of controversies 
on every conceivable subject, one should expect 
unanimity of opinion upon difficult legal questions! In 
the highest ranges of thought, in theology, philosophy 
and science, we find differences of view on the part of 
the most distinguished experts — theologians, 
philosophers, and scientists. The history of 
scholarship is a record of disagreements. And when 
we deal with questions dealing with principles of law 
and their application, we do not suddenly rise into a 
stratosphere of icy certainty.

This area of the law is not a sphere of icy certainty. 

Should the Legislature fail to adopt a satisfactory Remedy in 

the Special Session (provided Governor Clements includes this 

matter in his call) this Court will consider the granting of an 

expedited appeal to the Fifth Circuit to determine whether or 

not the Declaratory Judgment of this Court was properly 

made.

1980.
SIGNED AND ENTERED this 8th day of November,

_______ s/s
Lucius D. Bunton 
Chief Judge



305a

U.S. Department of Justice Civil Rights Division
Office of the Assistant Attorney G e n e r a l  

Washington, D.C. 20530

Nov 5, 1990

Mr. Tom Harrison 
Special Assistant for Elections 
Elections Division 
P. O. Box 12060 
Austin, Texas 12060

Dear Mr. Harrison:

This refers to Chapter 632, S.B. No. 1379 (1989), 
which provides for the creation of fifteen additional judicial 
districts and the implementation schedule for the State of 
Texas, submitted to the Attorney General pursuant to Section 
5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 
1973c. We received your submission on October 2, 1990.

We have given careful consideration to the information 
in your submission, including all information contained in 
your earlier submission of Chapter 632, which was withdrawn 
by the state pending a decision by the court en ban in League 
o f United Latin American Citizens v. Clements, No. 90-8014 
(5th Cir. Sept. 28, 1990) and we have considered the 
information in that opinion, as well as prior court opinions in 
that case. In addition, we have considered information from 
the Census, along with comments and information from other 
sources.

The changes consist of the establishment of fifteen 
additional district court judgeships, denominated as separate 
Judicial Districts. Each judgeship is elected at large in the 
area of the court’s jurisdiction, which consists of one or more



306a

counties. Each judgeship is subject to the general 
requirement in Texas law that nomination for such position 
requires the obtaining of a majority of the vote in a political 
primary. Thirteen of these judgeships will have the same 
geographic jurisdiction as previously existing judgeships. In 
these cases, the election of judgeships by Judicial District 
operates as a numbered post requirement, eliminating any 
possibility of effective single-shot voting.

Our review of more recent materials shows that it is 
commonly understood among Texas legislators that the 
discriminatory impact of these features is present in the 
election of judges. Indeed, the legislative session which 
produced Chapter 632 (1989) included an address by the 
Chief Justice of the Texas Supreme Court and legislative 
committee discussions in which the discriminatory impact of 
these features was acknowledged. It appears that the 
proposed method of electing the judicial positions presently 
before us, which incorporates the very features understood 
to be discriminatory, took the form it did primarily because 
of the inability of legislators to reach a consensus regarding 
an alternative method of selecting judges that would be fair 
to racial and ethnic minorities.

Accordingly, with regard to the additional judgeships 
in Dallas, Lubbock, and Tarrant Counties in particular, the 
evidence clearly indicates that the at-large method of election, 
even considered in isolation from the numbered post and 
majority-vote features, produces a discriminatory result 
proscribed under Section 2 of the Voting Rights Act, 42 
U.S.C. 1973c.

Under Section 5 of the Voting Rights Act, the 
submitting authority has the burden of showing that a 
submitted change has neither a discriminatory purpose nor a 
discriminatory effect. See Georgia v. United States, 411



307a

U.S. 526 (1973); see also the Procedure for the 
Administration of Section 5 (28 C.F.R. 51.52). In addition, 
our guidelines provide that a submitted change may not be 
precleared if its implementation would lead to a clear 
violation of Section 2 of the Act. See 28 C.F.R. 51.55. 
Because we cannot conclude, as we must under the Voting 
Rights Act, that your burden has been sustained in this 
instance, and because our view is that use of the at-large 
election system with numbered posts and majority vote 
resulting in a clear violation of Section 2, I must, on behalf 
of the Attorney General, interpose an objection to the voting 
changes occasioned by Chapter 632, S.B. No. 1379 (1989) 
and the implementation schedule for those districts.

In reaching this decision, we are not unmindful of the 
recent decision of the Fifth Circuit Court of Appeals in 
League o f United Latin American Citizens v. Clements, No. 
90-8014 (Sept. 28, 1990) ("LULAC") (en banc) which held 
that the Section 2 results standard is not applicable to judicial 
elections. The LULAC court, however, expressly recognized 
that "Section 5 of the Act applies to state judicial elections" 
(Slip. op. at 20) and until this matter is clarified further by 
the courts we see no basis for altering our Section 5 
procedural requirements insofar as they relate to Section 2.

We note that under Section 5 you have the right to 
seek a declaratory judgment from the United States District 
Court for the District of Columbia that the proposed changes 
have neither the purpose nor will have the effect of denying 
or abridging the right to vote on account of race, color, or 
membership in a language minority group. In addition, you 
may request that the Attorney General reconsider the 
objection. However, until the objection is withdrawn or a 
judgment from the District of Columbia Court is obtained, 
the changes to which we have objected continue to be legally 
unenforceable and should not be implemented in the



308a

November 6, 1990, election. Clark v. Roemer, No. A-327 
(U.S. Nov. 2, 1990) (copy attached). See also 28 C.F.R. 
51.10 and 51.45.

To enable us to meet our responsibility to enforce the 
Voting Rights Act, please inform us of the action the State 
of Texas plans to take concerning this matter. If you have 
any questions, you should call George Schneider (202-514- 
8696), Attorney in the Voting Section.

Sincerely,

Is/ John R. Dunne 
Assistant Attorney General 

Civil Rights Division