Judge Wood's Brief in Opposition to LULAC and Oliver's Petition for Writ of Certiorari

    PoRTER & CLEMENTS 
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ATTORNEYS 700 LOUISIANA, SUITE 3500 

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EVELYN V. KEYES TELECOP!ER (713) 228-1331 

(713) 226-0620 TELEX 775-348 

January 14, 188i 

Joseph F. Spaniol, Jr. 
Clerk 
United States Supreme Court 
1 First Street, N.E. 
washington, D.C. 20543 

Re: No. 90-974; League of United Latin American Citizens, et 
al. and:Jesse Oliver, et al. v. Jim Mattox, et al.; In 
the United States Supreme Court Circuit 

Dear Mr. Spaniol: 

Enclosed forty copies of the following Judge Wood’s Brief in 
Opposition to LULAC, et al., and Jesse Oliver, et al.’s Petition 
for Writ of Certiorari to the United States Court of Appeals for 
the Fifth Circuit. 

All parties are being served with a copy of this document by 
first class United States mail, postage prepaid. 

Very truly yours, 

Evelyn V. Keyes 
EVK/cdf 
enclosures 

cc: Mr. Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 

Mr. David €. Godbey, Jr. 
Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas . 75201 

 



    

Mr. 

PorRTER & CLEMENTS | & 

Joseph F. Spaniol, Jr 
January 14, 1991 

Page —2- 

CC: 

Mr. John L. Hill, Jr. 
Mr. Andy Taylor 
Liddell, Sapp, Zivley, Hill & Laboon 
3300 Texas Tower 

Houston, Texas 77002 

Mr. Seagal V. Wheatley 
Mr. Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg, Kelleher & Wheatley 
711 Navarro Street, 6th Floor 
San Antonio, Texas 78205 

Mr. Mark H. Dettman 

Attorney at Law 
Post Office Box 2559 
Midland, Texas 79702 

Mr. Gerald H. Goldstein 
Goldstein, Goldstein & Hilley 
29th Floor, Tower Life Bldg. 
San Antonio, Texas 78205 

Mr. Joel H. Pullen 
Kaufman, Becker, Pullen & Reibach 
2300 NCNB Plaza 
300 Convent Street 

San Antonio, Texas 78205 

Mr. R. James George 
Mr. John M. Harmon 
Ms. Margaret H. Taylor 
Graves, Dougherty, et al. 
P. O. Box 98 
Austin, Texas 78767 

Mr. William 1,. Garrett 
Garrett, Thompson & Chang 
8300 Douglas, #800 
Dallas, Texas 75225 

Mr. Rolando 1.. Rios 
Attorneys at Law 
201 N..St. Mary's St., #521 
San Antonio, Texas 78250 

 



    

PorTER & CLEMENTS & 

Mr. Joseph F. Spaniol, Jr 
January 14, 1991 

Page —3—- 

cc: Ms. Susan Finkelstein 
Attorneys at Law 
201 N. St. Mary's St., £624 
San Antonio, Texas 78250 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., #2050 
Austin, Texas 78701 

Mr. Renea Hicks 
Mr. Javier Guajardo 
Special Asst. Atty. Generals 
P. O. Box 12548 
Capitol Station 
Austin, Texas 78711 

Mr. Fdward -B. Cloutman, 11 

Cloutman, Albright & Bower 
3301 Elm Street 

Dallas, Texas 75226-1637 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and 

Education Fund, Inc. 
99 Hudson Street, 16th Floor 

New York, New York 10013 

Mr. E. Brice Cunningham 
Attorney at Law 
777 Soutn R. L. Thornton Frwy, 
Dallas, Texas 75203 

Mr. Michael Ramsey 
Ramsey & Tyson 
2120 Welch 

Houston, Texas 77019 

Mr. Daniel J. Popeo 
Mr. Paul D. Kamenar 
Mr. Alan M. Slobodin 
1705 N. Street, N.W. 
Washington, D.C. 20036 

Suite 121 

 



  

NO. 90-974 

IN THE SUPREME COURT OF THE UNITED STATES 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, er al., 

and 

JESSE OLIVER, eral 

Petitioners, 

Vv. 

JIM MADDOX, et al. 

Respondents. 

  

CERTIFICATE OF SERVICE 
ple 

This is to certify that on the JH “day of Ta fitectey , 1991, three true and 
f bi / 

/ v 

correct copies of Harris County District Judge Sharolyii Wood’s Brief in Opposition to LULAC, 

  

  

et al. and Jesse Oliver, et al.’s Petition for Writ of Certiorari to the United States Supreme 

Court was served by first class U.S. mail on the following 

Hon. Richard Thornburgh 

Attorney General of the United States 
United States Department of Justice 
Main Justice Building 

10th & Pennsylvania Avenue, N.W. 
Washington, D.C. 20530 

Mr. David C. Godbey, Jr. 
Mr. Robert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

 



Mr. Seagal V. Wheatley 

Mr. Donald R. Philbin, Jr. 

Oppenheimer, Rosenberg, Kelleher & Wheatley 

711 Navarro Street, 6th Floor 

San Antonio, Texas 78205 

Mr. Mark H. Dettman 

Attorney at Law 

Post Office Bax 2559 

Midland, Texas 79702 

Mr. Gerald H. Goldstein 
Goldstein, Goldstein & Hilley 
29th Floor, Tower Life Bldg. 

San Antonio, Texas 78205 

Mr. Joel H. Pullen 

Kaufman, Becker, Pullen & Reibach 

2300 NCNB Plaza 

300 Convent Street 

San Antonio, Texas 78205 

Mr. R. James George 

Mr. John M. Harmon 

Ms. Margaret H. Taylor 

Graves, Dougherty, et al. 

P. O. Box 98 

Austin, Texas 78767 

Mr. William L. Garrett 

Garrett, Thompson & Chang 

8300 Douglas, #300 
Dallas, Texas 75225 

Mr. Rolando L. Rios 

Attorney at Law 

201 N. St. Mary’s St., #521 
San Antonio, Texas 78250 

Ms. Susan Finkelstein 

Attorney at Law 
201 N. St. Mary’s St., #600 

San Antonio, Texas 78250  



  

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 

301 Congress Ave., #2050 
Austin, Texas 78701 

Mr. Renea Hicks 

Mr. Javier Guajardo 

Special Asst. Atty. Generals 
P. O. Box 12548 
Capitol Station 

Austin, Texas 78711 

Mr. Edward B. Cloutman, II 

Mullinas, Wells, Baab & Cloutman 

3301 Elm Street 

Dallas, Texas 75226-1637 

Ms. Sherrilyn A. Ifill 

NAACP Legal Defense and 

Education Fund, Inc. 
99 Hudson Street, 16th Floor 

New York, New York 10013 

Mr. E. Brice Cunningham 

Attorney at Law 
777 South R. L. Thornton Frwy., Suite 121 
Dallas, Texas 75203 

  
  

  

~~__ATTORNEY OF RECORD FOR RESPONDENT 

HARRIS COUNTY DISTRICT 

JUDGE SHAROLYN WOOD 

 



  
  

NO. 90-974 

Supe Cont of the 1 hited Stats 
OCTOBER ToRw, 1990 

LEAGUE OF UNITED LATIN AMERICAN | 

CITIZENS, et al., P 

‘and 

JESSE OLIVER, et al, 
Petitioners, 

an VY. 

JIM MATTOX, ef al., 
Respondents. 

HARRIS COUNTY DISTRICT JUDGE SHAROLYN 
WOOD'S BRIEF IN OPPOSITION TO 

LULAC ET AL., AND JESSE OLIVER, ET AL’S 
PETITION FOR WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
- FOR THE FIFTH CIRCUIT 

Of Counsel: J. EUGENE CLEMENTS 
EVELYN V. KEVES PORTER & CLEMENTS 
PORTER & CLEMENTS 3500 NCNB Center 
700 Louisiana, Suite 3500 700 Louisiana Street 
Houston, Texas 77002-2730 Houston, Texas 77002-2730 
Telephone: (713) 226-0600 Telephone: (713) 226-0600 
Facsimile: (713) 228-1331 Facsimile: (713) 228-1331 

MICHAEL J. WOOD Attorneys of Record for 
~ 440 Louisiana, Suite 200 Respondent Harris County 
Houston, Texas 77002 District Judge Sharolyn Wood 
Telephone: (713) 228-5101 : 
Facsimile: (713) 223-9133 
  

   



   



I 

QUESTIONS PRESENTED 

1. Whether elected state judges are “representatives” 

within the scope of § 2(b) of the Voting Rights Act, 

42 U.S.C. § 1973(b), and, if so, whether § 2(b) is 

constitutional as thus interpreted? 

. Whether independent overlapping county-wide judicial 

election districts are within the scope of § 2(b) of 

the Voting Rights Act and, if so, whether § 2(b) is 

constitutional? 

 



  

II 

TABLE OF CONTENTS 

QUESTIONS PRESENTED i... vio vie aniicni snles via 

TABLE OF CONTENTS... vei dovesne sna es 

TABLE OF AUTHORITIES 2... . ....... 7 

OPINIONS ERIOW 00 el a i 

JURISDICTION i ier, 0 an 

STATUTES INVOLVED 0 ai 

REASONS FOR DENYING THE WRIT .............. 

1 

11. 

111 

1V. 

Petitioners Incorrectly Claim That This Case Pre- 
sents A Conflict With Decisions Of This Court. .. 

The Conflict Between LULAC and Mallory v. 
Eyrich Does Not Require Resoluation By This 
COTTE, sive is vials ica C shite snes ts hry merase 

Petitioners’ Claim Of Authoritativeness For The 
United States Attorney General’s Interpretation Of 
The Voting Rights Act, In Contrast To The Fifth 
Circuit’s Interpretation, Is Erroneous And Presents 
No Ground For Cerliorar), .. civ. .is.usninsin 

If The Court Grants Certiorari It Should Consider 

All And Only Those Issues Presented By This 
TR DR SS SR Cl eR 

CONCLUSION ...... ii evi ini ois nnntinn evs 

17 

   



III 

TABLE OF AUTHORITIES 

CASES Page 

Allen v. State Bd. of Elecs.,, 393 U.S. 544, 89 S. Ct. 817 4 
(HOBO) tC iil. co RE, a. aan EL 4 

Anderson v. Celebrezze, 460 U.S. 780, 103 S. Ct. 1564 
worries BT eS ai 3 

City of Rome v. United States 446 U.S. 156, 100 S. Ct. 
1548 (1080), oc. coc vcviil snnmeinssns ins ton syns site 5 

Davis v. Bandemer, 478 U.S. 109, 106 S. Ct. 2797 (1986) 3 
Georgia State Bd. of Elecs. v. Brooks, No. 288-146 (S.D. 

Ga. 1989), afi’d wem., 111 8S. Ct. 2838 (1990) .......... 3,4 
Haith v. Martin, 618 F. Supp. 410 (E.D.N.C. 1985), aff'd 

wen, 477 U.S. 901, 106 8S. Ct. 3268 (1936) .......... 3,4 
Mallory v9. Byrick, $39 B24 275 (6th Cir. 1038) ........ 10-12, 17 
Mexican Amr. Bar Ass’n of Texas v. State of Texas, No. 

MO-90-CA-171 (W.D, Tex, Dec. 26, 1990) ........... 19 
Reynolds ov. Sims, 377 U.S 533,84 S.Ct. 1362 (1964) ... 12,13 
South Carolina v. Katzenbachk, 383 U.S. 301, 86 S. Ct. 803 
E10 PNET s aed. pa ie SR Ee 6 

Thornburg v. Gingles, 473 U.S. 30,106 S.Ct. 2752 (1936) 12,13 
United States v. Board of Comm’rs of Sheffield, Ala. 435 

U.S. 110, 93 8. CL. 965 (1978) ,...... cicvssrcsnenrs 17 

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff'd, 
4000S 1005 C1973) 0 ree 11,13 

Whitcomb v. Chavis, 403 U.S. 124, 93 S. Ct. 1858 (1971) . 10,13 
White v. Regester, 412. 1.8, 755,93 S. Ct. 2332 (1973) ... 10,13 

STATUTES 

Voiing Rights.Act $2.42 U.S.C. 31973........ cons 1,3-18, 16-19 
Voting Rights Act 35, 42 USC. $1973¢ .....c0vvess 3-7,9,17-19 
42 U.S.C, S1973UeY (1) .. si a2. 200 ans isa diininn 11 

RULES 

Code of Federal Regulations, 28 C.F.R. (7-1-89 Ed.) ch. 1 
SSIS] 0, ss enitih shh ahh ne Saichinls rons Alas 6-7, 18 

Code of Federal Regulations, 28 C.F.R. (7-1-89 Ed.) ch. 1 
CR LE Ee FERRE Ls RRP LI LR 7,18 

Code of Federal Regulations, 28 C.F.R. (7-1-89) ch. 1 
7 I INL Te a I Cd OT 18 

MISCELLANEOUS 

S. Rep. 417, 97th Cong., 2d Sess. 42, reprinted in 1982 U.S. 
Cops Cone. & ADMIN. NEWS 177 ..coccnvenvivicinnes 5  



    

 



NO. 90-974 

Supreme Court of the United States 
OcTOBER TERM, 1990 

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS, et al., 

and 

JESSE OLIVER, et al., 
Petitioners 

V. 

JIM MATTOX, et al., 
Respondents. 

HARRIS COUNTY DISTRICT JUDGE SHAROLYN 
WOOD’S BRIEF IN OPPOSITION TO 

LULAC ET AL., AND JESSE OLIVER, ET AL.'S 
PETITION FOR WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

Respondent Harris County District Judge Sharolyn 

Wood (“Judge Wood”) files this Brief in Opposition 

to the League of United Latin American Citizens 

(“LULAC”), et al. and Jesse Oliver, et al.’s Petition for 

a Writ of Certiorari to urge that the writ not be granted 

since the en banc judgment of the Fifth Circuit Court of 

Appeals is correct. In the alternative, Judge Wood urges  



  

2 

that all and only those issues properly presented in the 

record of this case be reviewed by this Court. 

OPINIONS BELOW 

Judge Wood incorporates by reference the statement of 

Opinions and Judgments Below set out in her Brief in 

Opposition to Houston Lawyers’ Association’s (“HLA” ’s) 

Petition for Writ of Certiorari, No. 90-813, at 2. The 

opinions and judgments below are reproduced in the Ap- 

pendix filed by the HLA, hereinafter referred to as “Pet. 

App.”? 

JURISDICTION 

Judge Wood incorporates by reference the statement of 

jurisdiction set out in her Brief in Opposition to HLA’s 
Petition at 2. 

STATUTES INVOLVED 

Judge Wood incorporates by reference the statement of 

Constitutional Provisions and Statutes Involved set out 

in her Brief in Opposition to HLA’s Petition at 3. 

STATEMENT OF THE CASE 

Judge Wood incorporates by reference the Statement 

of the Case set out in her Brief in Opposition to HLA’s 

Petition at 3-10. 

1. Judge Wood has previously filed a Brief in Opposition to the 
Petition for Writ of Certiorari filed in this case by the Houston 
Lawyers’ Association (“HLA”), No. 90-813. The HLA was a Plain- 
tiff /Intervenor in this case, in which LULAC, et al. were the original 
Plaintiffs and Jesse Oliver, et al. were Plaintiff/Intervenors. Judge 
Wood urges that No. 90-813 and this Petition be consolidated and 
considered together. The parties are the same for both Petitions and 
are listed in Judge Wood’s Opposition to the HLA’s Petition at II-III. 

2. LULAC did not file a separate Appendix. 

   



3 

REASONS FOR DENYING THE WRIT 

I. Petitiones Incorrectly Claim That This Case 

Presents A Conflict With Decisions Of This 

Court. 

Judge Wood incorporates by reference the statement 

of Reasons for Denying the Writ set out in her Brief in 

Opposition to HLA'’s Petition for Writ of Certiorari at 11 

and adds the following arguments. 

LULAC bases its principal argument for certiorari on 

the claim that the en banc decision of the Fifth Circuit 

Court of Appeals in this case conflicts with this Court’s 

summary affirmance of two district court cases applying 

§ 5 of the Voting Rights Act, 42 U.S.C. § 1973, to 

judicial elections, Haith v. Martin, 618 F. Supp. 410 

(ED.N.C, 1983), afid mem., 477 U.S. 901, 106 8. Ct. 

3268 (1986), and Georgia State Bd. of Elecs. v. Brooks, 

No. 288-146 (S.D. Ga. 1939), affd mem., 111 S. Ct. 

288 (1990). Pet. at 11. Petitioners base their claim on 

the artful phrasing of the question in Brooks as “Whethet 

the Voting Rights Act Should Be Construed to Apply to 

the Election of Judges.” Pet. at 13. Petitioners over- 

reach themselves, however, in arguing that this Court’s 

summary affirmance of Brooks has somehow decisively 

settled the legal issue of the applicability of § 2 of the 

Voting Rights Act, 42 U.S.C. § 1973, to the judiciary. 

Peta 13, 

No matter how Pretitioners phrase the issue in 

Brooks, this Court accords only limited stare decisis 

effect to summary affirmance, stating, “A summary dis- 

position affirms only the judgment of the Court below 

and no more may be read into our action than was essen- 

tial to sustain that judgment.” Anderson v. Celebrezze, 

460 11.8. 780, 103 8. Ct. 1564, 1363 n.5 (1983); see 

also Davis v. Bandemer, 478 U.S. 109, 121, 106 S. Ct.  



  

4 

2797, 2804 (1986) (summary disposition of an issue 

does not preclude further consideration of important 

issues). The stare decisis effect of Brooks is therefore 

limited to the facts of Brooks—a § 5 preclearance case. 

Brooks does not present any binding precedent in this 

case, and it does not preclude this Court’s review of the 

important § 2 issues presented. 

Apart from the effect of a summary affirmance by this 

Court, however, Petitioners appear to argue that the 

district court decisions in Brooks and Haith in themselves 

create a conflict with the Fifth Circuit's decision in this 

case. The basis of the conflict is apparently the claim that 

if §5 applies to the judiciary, § 2 must apply. Indeed, 

Petitioners argue that, “Given the identical language in 

Sections 2 and 5, basic tenets of statutory construction 

require that the sections be given identical meaning.” 

Pet. at 12. They argue that because § 5 was accorded the 

“broadest possible scope” by this Court in Allen v. State 

Bd. of Elecs., 393 U.S. 544, 566-567 (1969), § 2 must 

similarly be accorded the broadest possible scope. Pet. 

at 13. Both claims are false. The applicability of 

§ 5 of the Voting Rights Act to judicial elections was 

neither challenged nor disputed in this suit. Moreover, 

the attempt to equate §§ 2 and 5 is misleading and fal- 

lacious, as the Fifth Circuit recognized in its en banc 

majority opinion, stating that the application of § 5 of the 

Voting Rights Act to judicial elections does not entail 

the application of § 2 as well. Pet. App. at 29a. 

In fact, the referenced language of §§ 2 and 5 cited by 

Petitioners as “identical’—and therefore requiring the 

same construction—is not identical. Section 5 requires 

that certain specific states preclear with the Justice De- 

partment 

   



5 

any voting qualification or prerequisite to voting, or 
standard, practice or procedure with respect to vot- 
ing different from that in force or effect on November 
1, 1972. 

42 U.S.C. § 1973c, Pet. at 4. Section 2 makes illegal any 

illegal any 

voting qualification or prerequisite to voting, or 
standard, practice, or procedure . . . 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, . . . 

42 USC. 31973, Pet at 2-3. This difference in 

language makes is clear that the two section have com- 

pletely different thrust and scope; and, indeed, both the 

legislative history of the 1982 amendments to the Voting 

Rights Act and Supreme Court authority expressly caution 

against the fallacy of equating §§ 2 and 5. 

In its official statement for the record of the intended 

meaning and operation of the 1982 amendments to the 

Voting Rights Act, Congress stated that the analogy be- 

tween §§ 2 and 5 is “fatally flawed for several reasons.” 

S. Rep. 417, 97th Cong., 2d Sess. 42, reprinted in 1982 

U.S. Cope Cong. & ApMIN. NEws 177, 219-220. Con- 

gress explained that there is a “fundamental difference” 

between “the degree of jurisdiction needed to sustain the 

extraordinary nature of preclearance” required by § 5 and 

“the use of a particular legal standard to prove discrimina- 

tion” under § 2. Id. at 220. In its view, 

section 2 . . . is less intrusive on state functions. As 
Justice Powell has stated “(p)reclearance involves a 
broad restraint on all state and local voting practices. 
.... City of Rome v. United States, 446 U.S. at 202-  



  

6 

203, n. 13 (Powell, J. dissenting). By contrast, 
amended section 2 does not require federal preclear- 
ance of anything it merely prohibits practices that 
can be proven in a court of law to have discrimina- 
tory results. 

Id. (quoting testimony of Professor Dorsen). At the same 

time, Congress expressed its intent and confidence that 

§ 2 cannot result in “wholesale invalidation of electoral 

structures,” which is, of course, the very result sought by 

Petitioners. Id. at 213. 

Similarly, in the original Supreme Court case interpret- 

ing § 5, South Carolina v. Katzenbach, this Court cau- 

tioned, 

We emphasize that only some of the many portions of 
the [Voting Rights] Act [of 1965] are properly be- 
fore us. South Carolina has not challenged §§ 2 . . . 
and other miscellaneous provisions having nothing 
to do with this lawsuit. Judicial review of these 
sections must await subsequent litigation. 

383 U.S. 301, 316, 86 S. Ct. 803, 812 (1966) (emphasis 

added). Thus the language of the Voting Rights Act and 

Congress indicate that §§ 2 and 5 should not be accorded 

identical scope, and this Court has specifically reserved 

the question. 

Moreover, to the extent either section is to be em- 

ployed in interpreting the other, the Justice Depart- 

ment, in codifying its responsibilities pursuant to § 5, 

42 U.S.C. § 1973c, requires that the interpretation of 

§ 2 (and other sections of the Voting Rights Act) 

be used as a guideline in interpreting § 5, note—as 

Petitioners would have it—vice versa. The Code of 

   



7 

Federal Regulations sets out specific guidelines for the 

Attorney General to follow “in making substantive deter- 

minations under section 5 and in defending section 5 

declaratory judgment actions.” 28 C.F.R. (7-1-89 Ed.) 

Ch. 1 § 51.51. Those regulations provide: 

(a) Consideration in general. In making a deter- 
mination the Attorney General will consider whether 
the change is free of discriminatory purpose and 
retrogressive effect in light of, and with particular 
attention being given to, the requirements of the 14th 
15th, and 24th amendments to the Constitution, 42 
US.C..1971(a) and (Db), ‘section 2, 4(a) 4({)(2), 
4(f)(4), 201, 203(c), and 208 of the Act, and other 
constitutional and statutory provisions designed to 
safeguard the right to vote from denial or abridge- 
ment on account of race, color, or membership in a 

language minority group. 

28 CF.R. (7-1-89 Ed.) Ch. 1 § 31.55. In other words, 

the Attorney General is to be guided in assessing the 

potentially discriminatory effect of changes in voting prac- 

tices by the requirements of various provisions designed 

to safeguard the right to vote, including § 2. He is not to 

interpret those sections by reference to the broad langu- 

age of § 5. The argument that § 2 must be accorded the 

broadest possible scope because § 5 has been accorded 

such scope is exactly the reverse of the procedure adopted 

by the Justice Department. Nevertheless, it is important 

to realize exactly what is at issue in this case—and it is 

not the full scope and applicability of § 2, much less the 

scope of §§ 2 and 5 together. 

While the Petition leaves the impression that the Fifth 

Circuit held that § 2 does not ever apply to the judiciary, 

that is not the case. The Fifth Circuit, in fact, interpreted  



  

8 

only part of § 2 of the Voting Rights Act. Judge Gee in 

his majority opinion expressly observed that the court’s 

inquiry was limited to the question whether the language 

in § 2(b) prohibiting discriminatory practices in the elec- 

tion of “representatives” could be applied to the judiciary. 

Pet. App. at 12a and 12a n. 6.° The effect of this limita- 

tion, as the Court stated, was to restrict the Fifth Circuit’s 

opinion to a ruling on the issue whether vote dilution 

claims can be brought in judicial elections. Pet. App. at 

28a. The majority refused to decide whether § 2(b)’s pro- 

hibition of voting practices that result in a denial of a 

protected class’ opportunity to participate in the political 

process applies to the judiciary, since that was not at issue. 

Id. However, the majority specifically indicated that 

protecting [the opportunity to participate in the poli- 
tical process] appears to involve all of the primal 
anti-test, anti device concerns and prohibition of 
original Section 2; and its provisions may well extend 
to all elections whatever. These broader considera- 
tions center on the voter and on his freedom to 
engage fully and freely in the political process, un- 
trammeled by such devices as literacy tests and poll- 
taxes. Where judges are selected by means of the 
ballot, those safeguards may apply as in any other 
election, a matter not presented for decision today. 

3. The relevant passage from the Act provides, 
(b) A violation of subsection (a) of this section is established 

if, based on the totality of circumstances, it is shown that the 
political process 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. 

42 U.S.C. § 1973(b) (emphasis added). 

   



9 

Pet. App. at 12a-13a. The court further observed, 

[Als 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 any 
electoral aspect. 

Pet. App. at 28a (emphasis added). The Fifth Circuit’s 

ruling is thus limited to one specific type of discrimination 

claim—although a very important one—the claim that the 

votes of a protected class can unintentionally be diluted 

through a state’s structure of its judicial election system, 

in violation of § 2. 

Since Petitioners’ claims of a conflict between decisions 

of this Court and the Fifth Circuit opinion in this case 

rest on a fallacious equation of the scope of §§ 2 and 5 

(the latter section not being at issue in this case) and over- 

broad readings of both the power of summary affirmance 

and the Fifth Circuit’s en banc holding regarding the ap- 

plicability of § 2(b)’s vote dilution prohibition to judicial 

elections, Petitioners’ conflict claim is without merit and 

should be rejected as a basis for granting certiorari. 

II. The Conflict Between LULAC and Mallory wv. 
Eyrich Does Not Require Resolution By This 

Court. 

While no conflict exists between this § 2 case and the 

two § 5 district court cases cited by Petitioners, there is, 

as Petitioners point out, a true conflict between this case  



  

10 

and Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988). 

Pet. at 11. Petitioners analyze the conflict in terms of two 

issues on which LULAC and Mallory differ: (1) whether 

judges are “representatives” for purposes of the Voting 

Rights Act and (2) whether the non-applicability of the 

one person, one vote principle to judicial elections fore- 

closes a vote dilution claim. Pet. at 14-18. Since both of 

these issues are thoroughly explored and far more effec- 

tively settled in the LULAC majority opinion, the 

conflict with Mallory does not require resolution by this 

Court. 

The en banc Fifth Circuit opinion exposes the inherent 

fallacy in attempting to define judges as “representatives.” 

Pet. App. at 7a-19a. In that opinion, the Fifth Circuit 

majority began by observing that § 2 should not be 

pushed beyond its clear language “because of the highly 

intrusive nature of federal regulation of the means by 

which states select their own officials.” Pet. App. at 3a. 

Carefully examining the text of § 2 and its genesis, the 

court analyzed the background to the 1982 amendments 

to the Act, paying particular attention to the origin of the 

results test in legislative redistricting actions and to the 

traditional (indeed, prior to 1982, the universal) interpre- 

tation of the term “representative” by the courts as a term 

exclusive of the judiciary. Pet. App. at 5a-17a. It con- 

cluded that, in revising § 2 in 1982 to incorporate the 

“results” test promulgated in Whitcomb v. Chavis, 403 

U.S. 124, 93 S. Ct. 1858 (1971) and White v. Regester, 

4121.8. 753,93 8. Ct. 2332 (1973), Congress intended 

to extend that test no further than the legislative and 

executive branches and selected its language carefully to 

reach that result. Pet App. at 4a. Given the apparent care 

taken in the choice of the word “representative” in § 2(b), 
j 
/ 

) 
i 

   



o
C
 

11 

it makes a mockery of customary canons of statutory 

construction to argue, as Petitioners do, that this careful 

specificity should give way to the general definition of the 

term “voting” a 42 U.S.C. 319731(e)(]). 

The Fifth Circuit majority paid particular attention to 

Wells v. Edwards, 347 BE. Supp. 433 (M.D. La. 1972), 

aff'd, 409 U.S. 1095 (1973). Wells held that the one 
person, one vote principle does not apply to the judiciary 

since, 

“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 gov- 
ernment.” 

Pet. App. at 18a (quoting Wells, 347 F. Supp. at 455-56). 

The Fifth Circuit stated, 

It is impossible, given the single point at issue and 
the simple reasoning stated, to believe that the ma- 
jority of the Supreme Court, in affirming Wells, did 
not concur in that reasoning. 

Pet. App. at 19a. 

Petitioners, however, point out that while Mallory, like 

the Fifth Circuit Majority opinion in this case, accepts the 

rule in Wells that the one person, one vote principle does 

not apply to the judiciary, Mallory rejects Wells’ reason- 

ing that the principle does not apply because judges are 

not “representatives” covered by the principle. Instead,  



  

12 

Mallory holds that the one person, one vote principle 

addresses a fourteenth amendment equal protection prob- 

lem, while analysis of a § 2 claim does not involve the 

fourteenth amendment but only statutory construction. 

Pet. App. at 17. This difference, Petitioners’ argue, creates 

a conflict that this Court must resolve. Id. Neither Peti- 

tioners nor Mallory purport to explain Mallory’s sur- 

realistic rationale that a court can engage in statutory 

construction in some sort of constitutional vacuum with- 

out implicating the fourteenth amendment. Judge Wood 

respectfully suggests that Mallory, confronted by LULAC, 

fails as persuasive precedent without the need for this 

Court’s intervention. No statutory construction is per- 

missible that results in or leaves untouched a fourteenth 

amendment violation. 

No review is required because the Fifth Circuit's 

analysis of the origin of § 2 lays to rest Mallory’s pur- 

ported distinction between § 2 and the fourteenth amend- 

ment. As the Fifth Circuit majority opinion points out, 

the concept of individual vote dilution was first developed 

by this Court in the legislative apportionment case of 

Reynolds v. Sims, 377. US. 333, 84 S.Ct. 1362 (1964), 

which provided a standard of measure and a remedy for 

individual vote dilution by promulgating the doctrine of 

one-person, one vote under the Constitutional authority 

of the Fourteenth Amendment. Pet. App. at 21a. Subse- 

quently, the concept of one person, one vote provided the 

foundation for the concept of minority vote dilution 

elaborated in Whitcomb and White. Pet. App. at 2la. 

Thus, both the general concept of individual vote dilution 

and the specific concept of minority vote dilution are in- 

tegrally related to the concept of one person, one vote. 

Moreover, Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 

   



13 

2752 (1986)—the only case in which this Court has 

reviewed the concept of minority vote dilution since the 

Voting Rights Act was amended in 1982—presupposes 

that the one person, one vote principle applies to elections 

covered by § 2 and builds into the test for vote dilution 

a potential remedy through the use of single member 

districts in which the aggrieved minority can constitute 

a majority.* 

In light of Reynolds, Whitcomb, White and Gingles, 

the Fifth Circuit found itself compelled to conclude that 

vote dilution analysis can only be meaningful in cases in 

which the principle of one person, one vote applies. In- 

deed, it correctly observed that without the individual right 

of one person to one vote there is no standard of appro- 

priate individual vote strength against which to measure 

alleged dilution; hence a court “can fashion no remedy 

to redress the non-existent wrong complained of here.” Pet. 

App. at 20a-21a. Thus, if a court acknowledges the hold- 

ing in Wells that the one-person, one vote standard does 

not apply to the judiciary, it must logically conclude, as 

the Fifth Circuit did, that “judicial elections cannot be 

attacked along lines that their processes result in unin- 

tentional dilution of the voting strength of minority 

members.” Pet. App. at 20a. If one person, one vote does 

apply, despite Wells, every state which elects judges must 

totally restructure its judicial electoral districts and hence 

its judiciary since, as discussed below, those districts are 

4. As the Court is well aware, Gingles requires minority plaintiffs 
to meet an initial threshold burden of proving (1) that the minority 
is “sufficiently large and geographically compact to constitute a 
majority in a single-member district”; (2) that the minority is poli- 
tically cohesive; and (3) that “the white majority votes sufficiently 
as a block to enable it, in the absence of special circumstances . . . 
usually to defeat the preferred candidate of the minority.” 458 U.S. 
at 50-51, 106 S. Ct. at 2766-2767.  



  

14 

currently crafted to reflect many different, legitimate con- 

cerns having nothing to do with minority voters or judges. 

The Fifth Circuit's five-judge concurring opinion, au- 

thored by Judge Higginbotham, also points up the im- 

possibility of devising a constitutional remedy for sup- 

posed vote dilution in the narrower field of district judge 

elections. Although Judge Higginbotham attributed the 

lack of remedy for perceived vote dilution in district 

judge elections to the fact that trial judges are sole de- 

cision-makers within their districts, rather than to the 

fact that trial judges are not “representatives” of their 

constitutencies’ special interests, Pet App. at 92a, the 

broad conclusion reached by the concurring judges is 

essentially the same as that reached by the majority: 

application of the concept of vote dilution to an elected 

state judiciary is inconsistent with fundamental legal con- 

cepts and constitutional requirements. 

As Judge Higginbotham points out, each trial judge is 

an official who exercises his full authority alone and whose 

authority has its source in an electorate coterminous with 

the jurisdiction of the court, so that there can be no dilu- 

tion of votes for that sole decision-making office. Pet. 

App. at 93a. But, as Judge Higginbotham also acknowl- 

edges, the problem of applying the concept of vote dilution 

to trial judges does not stop there: “the fact that trial 

judges act singly is also integral to the linking of juris- 

diction and elective base.” Pet App. at 93a. Thus, 

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. 

1d. 

   



15 

Judge Higginbotham points out numerous important 

interests involved in the structuring of state judicial elec- 
tion systems that would be profoundly affected by the 

application of the vote dilution principle and Petitioners’ 

preferred remedy—subdistricting—to single-bench judicial 

districts. For example, in the larger Texas counties, al- 

though district courts are courts of general jurisdiction, 

some judges are elected specifically to handle only juvenile 

or family law or criminal cases. Pet. App. at 101a. This 

structure, like many others created over the decades to 

accommodate specialized docket needs, geographical con- 

siderations, or other reflections of non-racial functional 

specificity, would be complicated, if not precluded, by the 

creation of subdistricts designed solely to fulfill minority 

voter quotas. As Judge Higginbotham further argues, to 

break the linkage between jurisdiction and elective base 

may well lessen minority influence instead of increasing it. 

If there be any validity to Petitioners’ claim that in some 

broad sense elected judges are representative of the voters 

who elect them, in a world of racially and ethnically 

structured sub-districts minority voters would have no 

influence on the election of most judges and, more likely 

than not, a minority litigant would be assigned to appear 

before a judge who was not elected from a district with 

greater than a 50% minority population. Pet. App. at 

105a-107a. Further, requiring subdistricting to correct 

for vote dilution. 

would change the structure of the government be- 
cause 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  



  

16 

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. 

Pet. App. at 108a. Judge Higginbotham concludes that 

this violence done the system not only would interfere 

with the state’s fundamental right to structure its judiciary 

without federal interference but it might also retard the 

goals of the Voting Rights Act itself. Pet. App. at 111a. 

The concerns expressed by Judge Higginbotham are 

not inconsequential considerations lightly arrived at, but 

extremely serious consequences to be reckoned with if § 2 

of the Voting Rights Act is applied to the judiciary in 

general and to state district judge elections in particular. 

Respondent Wood and the Fifth Circuit majority would 

differ from Judge Higginbotham and those judges who 

concurred with him only by arguing that the violence done 

to the judiciary by application of § 2 vote dilution prin- 

ciples to those elections stems from an even more radical 

root than the fact that district judges are sole decision- 

makers whose authority is coterminous with their electoral 

base and jurisdiction: it stems from the non-representative 

nature of the judiciary. A state judiciary is either elected 

or appointed, as a state chooses, in order to serve the 

fundamental state interests of fairness and efficiency in 

the administration of justice and not at all to serve the 

special interests of any group of constituents, whether 

black or white, rich or poor, Jewish or Christian, residents 

of one neighborhood or residents of another. For that 

reason it necessarily does radical violence to the concept 

of an independent state judiciary, as well as to many 

constitutional and statutory principles, to insist that ju- 

dicial districts be drawn solely to conform to demographic 

   



17 

distribution or to insure the proportional representation 

of minorities in the judiciary (which is ultimately the 

same thing). Judges are not representatives of their 

constituents, and judicial districts should not be struc- 

tured to insure proportional racial representation. 

Given the Fifth Circuit’s decisive refutation of Mallory, 

it is not necessary for this Court to review the same issues. 

It should refuse to grant certiorari on the ground of a 

conflict between this case and Mallory. 

ITI. Petitioners’ Claim Of Authoritativeness For 

The United States Attorney General’s Inter- 

pretation Of The Voting Rights Act, In Con- 

trast To The Fifth Circuit’s Interpretation, Is 

Erroneous And Presents No Ground For 

Certiorari. 

Finally, Petitioners claim that the interpretation of 

the Voting Rights Act by the Attorney General, who 

appeared as amicus for the plaintiffs in this case, is 

authoritative. Pet. at 18. In support of their claim Pe- 

titioners cite United States v. Board of Comm’rs of Shef- 

Feld, Ala. 435 US. 110, 131 983 8S. Ct. 963 (197%), 

in which this Court deferred to Attorney General Kat- 

zenbach’s interpretation of § 5 of the Voting Rights Act 

on the ground that the Attorney General played an 

extensive role “in drafting the statute and explaining its 

operation to Congress.” Pet. at 18. No one can contend 

that either the current Attorney General or Assistant 

Attorney General John Dunne, who has participated 

in this case as amicus, played a key role in drafting § 2 

of the Voting Rights Act in 1965 or in amending it in 

1982. Therefore the rationale for the deference paid by  



  

18 

this Court to Attorney General Katzenbach in 1978 

entirely disappears. But there is a still more compelling 

reason for rejecting the argument that the United States 

Attorney General’s interpretation of the Voting Rights 

Act is authoritative. 

The Attorney General plays a statutorily mandated 

role in interpreting § 5 of the Voting Rights Act since 

he is required by law to preclear changes in voting prac- 

tices and procedures in the affected states.” By contrast, 

the United States Attorney General plays no necessary 

role in § 2 cases. Nor, as argued above, is the Attorney 

General accorded free rein to interpret even § 5 at his 

whim. Rather, stringent federal regulations prescribe in 

detail the procedure the Attorney General must follow 

in interpreting § 5, including deferring to guidelines 

established by constitutional and statutory provisions de- 

signed to safeguard the right to vote — provisions which 

include § 2. See supra at 7. Moreover, the same regu- 

lations which require the Attorney General to be guided 

by those provisions explicitly require him to be guided 

by the federal courts’ interpretation of the relevant pro- 

visions. Thus, it is entirely wrong and misleading to 

assert that this or any federal Court must defer to the 

As an example on point, Assistant Attorney General 

Dunne this autumn refused preclearance of the creation 

of 15 new district judgeships in Texas, in part because 

5. See 42 U.S.C. § 1973c, reprinted in Appendix to Judge Wood’s 
Brief in Opposition to HLA’s Petition (“Wood App.”) at 4a; see 
also 28 C.F.R. (7-1-89) Ch. 1 § 51.51 et seq. 

6. Applicable federal regulations provide in relevant part, 
§ 51.56 Guidance from the courts. 

In making determinations the Attorney General will be guided 
by the relevant decisions of the Supreme Court of the United 
States and of other Federal courts. 

   



19 

Attorney General’s unilateral reading of § 5 when that 

Court is faced with interpreting the Voting Rights Act. 

he personally disagreed with the en banc decision in 

LULAC. See Opinion Letter of Assistant Attorney Gene- 

ral John Dunne to Texas Elections Division. App. at 

305a-307a. Petitioners the Houston Lawyers’ Associa- 

tion introduced Attorney General Dunne’s letter to the 

Texas Election Division into the record of this case 

as support for their claim (identical to LULAC’s claim) 

that the opinion of the Attorney General is authoritative 

even in § 2 cases in which the Attorney General is not 

a party and which present no §5 issues. Subse- 

quently the Mexican American Bar Association of Texas 

(“MABA”) brought suit against the State of Texas be- 

fore a three-judge court in the Western District of Texas 

seeking to enjoin the State from seating the new judges. 

That case was consolidated with a suit brought by the 

United States on the same issue. On December 26, 1990, 

the three-judge court ruled that the new benches had been 

precleared by operation of law before the Attorney Gene- 

ral made his untimely objection. Mexican Amr. Bar Ass'n 

of Texas v. State of Texas, No. MO-90-CA-171 (W.D. 

Tex., Dec. 26, 1990). MABA by itself should lay to 

rest Petitioners’ claim that the Attorney General’s or 

the Assistant Attorney General’s interpretation of the 

entire Voting Rights Act is final. Petitioners’ argument 

that the LULAC opinion should be reviewed because the 

Attorney General disagrees with it is without merit and 

should be rejected by this Court. 

 



  

20 

IV. If The Court Grants Certiorari It Should Con- 

sider All And Only Those Issues Presented By 

This Case. 

For the foregoing reasons, this Court should deny 

certiorari to review the scholarly and thorough en banc 

opinion of the Fifth Circuit Court of Appeals in this 

case. Nevertheless, Judge Wood recognizes the validity 

of Petitioners’ final argument that fundamental rights are 

at issue in this case — although she would frame those 

issues in a larger context than the single, admittedly 

fundamental, issue of voting rights. Pet. at 19-20. Not 

only are voting rights at issue, but also fundamental 

principles of due process, equal protection, the applic 

ability or inapplicability of the one man, one vote princi- 

ple to judicial elections and the fundamental right of a 

state to structure its judiciary. Judge Wood has already 

explored briefly these and other issues presented by the 

case in her Brief in Opposition to HL A’s Petition and 

hereby incorporates those arguments by reference. She 

therefore recognizes that the Court may well decide 

that certiorari is justified. In that event, she urges the 

Court to confine its review to the profound issues properly 

raised by this case and argued below and not to cloud 
those issues by granting certiorari to review other issues 
and other Voting Rights Act cases when and if it reviews 
this case. 

   



21 

CONCLUSION 

For the foregoing reasons, Harris County District Judge 

Sharolyn Wood respectfully requests that the Court deny 

the Petition for Writ of Certiorari or, in the alternative, 

that it grant certiorari to review all and only those issues 

fairly presented by this case and developed below. 

Respectfully submitted, 

J. EUGENE CLEMENTS 
PORTER & CLEMENTS 
3500 NCNB Center 
700 Louisiana Street 
Houston, Texas 77002-2730 
Telephone: (713) 226-0600 
Facsimile: (713) 228-1331 

Attorney of Record for Respondent 
Harris County District 
Judge Sharolyn Wood 

Of Counsel: 

EVELYN V. KEYES 
PORTER & CLEMENTS 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 
Telephone: (713) 226-0600 
Facsimile: (713) 228-1331 

MICHAEL J. WooD 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 
Telephone: (713) 228-5101 
Facsimile: (713) 223-9133