Supplemental Brief on Rehearing En Banc of Plaintiff-Intervenor-Appellees Houston Lawyers' Association

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April 16, 1993 

Mr. Richard E. Windhorst, Jr. 

Clerk 
Fifth Circuit Court of Appeals 
100 U.S. Court of Appeals Courthouse 
600 Camp Street 
New Orleans, LA 70130 

Re: LULAC v. Morales No. 90-8014 
  

Dear Mr. Windhorst: 

Enclosed please find an original and 20 copies of Appellee-Intervenors’ Houston 
Lawyers’ Association Supplemental Brief on Rehearing En Banc for filing in the above 
referenced case. 

All counsel have been served. 

  

Counsel for HLA 
Appellee-Intervenors 

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IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), COUNCIL #4434, 

et al, 

Plaintiffs- Appellees, 

HOUSTON LAWYERS’ ASSOCIATION, 

et al, 

Plaintiff-Intervenor- 

Appellees, 

DAN MORALES, et al., 

State Defendants- 

Appellants, 

JUDGE SHAROLYN WOOD AND 
JUDGE F. HAROLD ENTZ, 

Defendant-Intervenor- 

Appellant. 

  

Appeal from the United States District Court for the Western 
District of Texas, Midland-Odessa Division 

SUPPLEMENTAL BRIEF ON REHEARING EN BANC 
OF PLAINTIFF-INTER VENOR-APPELLEES 
HOUSTON LAWYERS’ ASSOCIATION, et al. 

ELAINE R. JONES 

CHARLES STEPHEN RALSTON 

SHERRILYN A. IFILL 

99 Hudson Street, 16th Floor 

New York, New York 10013 

(212) 219-1900 

GABRIELLE K. McDONALD, ESQ. 
Walker & Satterthwaite 

7800 N. Mopac, Suite 215 
Austin, Texas 78759 

(512) 346-6801 

 



  

TABLE OF CONTENTS 
Introductory Statement i... tL i ae  tis  a  e en e ee 1 

Summary OT ATOUIMENE os enn e ded ves vin ves iaisinininin sais wei ase ieee aia 2 

ATSUMEIN i ori cis enrinilly ssh aia ales a sin vs sialsis lem ae sn winininie s 0a siete 0 gui 3 

;  § The Standards of Review Advanced by the Dissent are Incompatible with 
the Guidelines for Assessing Vote Dilution Claims Set Out by Congress 
and the Supreme Court, and Followed by this Circuit .................. 3 

A. Plaintiffs in Section 2 Cases Need Not Show that White 
Voters are Racist in Order to Prove that Voting is Racially 
Polar Zed os oo oir nae i ie er nai ae ea a A aN a 4 

B. Gingles Does Not Require that Plaintiffs Prove the Cause of 
Racially Polarized VOLING . .... 0 cin ciiininnmaininin samivi sists 8 

C, No Other Court Has Required that Plaintiffs Prove the Cause of 
Racially Polarized VOHNE .. . . «vv sveen vin vinin si vininio vinnie 10 

IL. The Legitimacy of the State’s Interests is Not a Defense to Proven Vote 
cn RE TVR NG RR ES a Sie a PEE, TL COVE 11 

III. The State’s Interest Should be Weighed in the Totality of Circumstances ... 13 

IV. By Any Standard, Plaintiffs Proved Their Case in Harris County . .......... 18 

A. None of the Purportedly Non-Racial Rationale Offered by the 
Defendants In Fact Explain Racially Polarized Voting in Harris 
Coamty =. ....: Binet te onate is wih: on wie dB A aE a ee 18 

B. The Houston Lawyers’ Association Proved the Existence of Vote 
Dilution in Harris Coumty ii 0s «v0 Cre he ein se diainis ve vis wine 20 

C. The State Has Never, In Fact, Proved its Interest in "Linkage" ..... 23 

CC OTICIUSI ON ie i sii oe es a so yy ite aie alg aly a eh ik A a es 26 

 



  

TABLE OF AUTHORITIES 

Cases: Pages: 

Bazemore v. Friday, 
478 11.8. 3BS (1986). ec vie rv ve sea sia a i Sy ae 9 

Bradley v. Swearingen, 
5258 W.2d 280 (Tex. Civ. App. 1975) . ovis svtin anv ans snnvneiinins 25 

Campos v. City of Baytown, 
B40 F.24 1240. (Sth Cir. 1988). vv viva vu vv nin aitin stan viv 10, 11, 21 

Citizens for a Better Gretna v. City of Gretna, 
636 F. Supp. 1113 (E.D. La. 1986), aff'd, 834 
F2A496 (Sth Cir. 1987)... censors ssnnins sana di sitinnvintennss 11 

Dillard v. Crenshaw County, 
S31 F2d 240 (Ath Cir. 1086)... .... cv cnnmsint sin caspaivuimelsns wa 24 

Gingles v. Edmisten, 
SOOF. Supp. MM4S(E.DIN.C. 1984) .....00 ver nnnssinnsnnasgnacsnins passim 

Growe v. Emison, 
61 USL. W. 4163 (February 23, 1993)... cn snvivn sean cnsnrnnnnnsse 18 

HLA v. Attorney General of Texas, 
INSL. EA. 20 370 (A000) - ce. vives Sh a a saa el ae passim 

Jeffers v. Clinton, 
730 F. Supp. 196 (E.D. Ark. 1989) aff'd mem., 
21. Bd. 20656 (1991) . .... «iii ins snaa nn nisinien podem pn 10 

Kirksey v. Bd. of Sup’rs Hinds County, Miss., 
S54 FAI (SCI NTTT) 0. evs seen aa an an 15 

Kirksey v. City of Jackson, Miss., 
663 F.2d 659 (5th Cir. 1981) reh’g and reh’g en 
banc denied, 669 F.2d 316 (Sth Cir. 1982) .... 0c. ivr snvradanintaas oo 6 

LULAC v. Clements, 

G14 F.2d 620 (Sth Cir. 1990)... 0c vi vniin ssn vo mvinins's dirsinns sibs 12, 23 

ii 

 



LULAC v. Clements, 

914 F.2d 620 (5th Cir. 1990) 

LULAC v. Midland ISD, 
812 F.2d 1494 (5th Cir. 1987), vacated on other 
grounds, 829 F.2d 546 (5th Cir. 1987) 

Mallory v. Eyrich, 
707 F. Supp. 947 (S.D. Ohio 1989) 

Mobile v. City of Bolden, 
446 U.S. 55 (1980) 

Overton v. City of Austin, 

871 F.2d 529 (5th Cir. 1989) 

Sanchez v. Bond, 
875 F.2d 1488 (10th Cir. 1989) 

Solomon v. Liberty County, Florida, 
899 F.2d 1012 (11th Cir. 1990) 

Sweatt v. Painter, 

339 U.S. 629 (1950) 

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

Westwego Citizens for a Better Gov't v. City of 
Westwego, 872 F.2d 1201 (5th Cir. 1989), on remand, 946 

F.2d 1109 (5th Cir. 1991) 

Statutes: 

Senate Report No. 97-417, 97th Cong., 2nd Sess. (1982) 

42 U.S.C. § 1973, as amended  



  

Introductory Statement 

The interested persons are identical to those listed in the Houston Lawyers’ 

Association’s October 1991 Brief on Remand. 

Plaintiff-intervenors incorporate by reference the Statement of Jurisdiction, 

. Statement of Facts, and Statement of the Case contained in their October 1991 Brief on 

Remand. 

 



  

Summary of Argument 

This supplemental brief addresses three core arguments advanced by the defendant- 

intervenors and by Judge Higginbotham in his dissent from the recently vacated panel 

opinion’ as bases for denying relief to plaintiffs in this case? (1) that plaintiffs must show 

that the cause of racially polarized voting patterns is racism on the part of white voters; (2) 

that the existence of some non-racial state interest may, standing alone, rebut a showing 

of vote dilution, and (3) that the state of Texas has proven that it has a "substantial" 

interest in linking the electoral and jurisdictional base for judges. All three arguments rest 

on fundamental misreadings of the Voting Rights Act, its legislative history, and relevant 

Supreme Court precedent. But even if this Court were to adopt these unsupportable 

  

'On January 27, 1993, in LULAC v. Attorney General of Texas, a panel of this court affirmed the 

district court’s finding of vote dilution in eight of the nine counties at issue in this case. As stated 
by a majority of the panel, the record in this case supports the inescapable factual reality "that in 
Texas district court elections minority voters have less opportunity than white voters to participate 
in the political process and to elect representatives of their choice." Slip Op. at 8. The panel 
majority ("the majority") in a carefully reasoned, thorough analysis, describes the nature of the vote 
dilution which it found to be present in the eight relevant counties. Plaintiff-intervenors endorse 
the reasoning, analysis, and interpretation of the law articulated in that opinion. 

References to the majority panel opinion of January 27, 1993 will be to "Panel Op. at. 
References to Judge Higginbotham’s dissent and proposed opinion will be to "Dissent at ___." 

" 

2The Houston Lawyers’ Assocation has filed three briefs on appeal in this case. The first 
Brief on Appeal filed on February 27, 1990, we discussed the factual evidence in the record which 
supports the district’s court’s finding that district judge elections in Harris County violate Section 
2 of the Voting Rights Act, as amended. In our Supplemental Brief to this court en banc, filed on 
June 5, 1990, we argued that 59 trial judges elected in Harris County are not single-person officers, 
that all elections -- including judicial elections -- are covered by the Voting Rights Act. After the 
Supreme Court’s decision in HLA v. Attorney General of Texas, 115 L.Ed.2d 379 (1991), we filed a 
third brief in October 1991 responding to specific questions posed by this Court. In that brief, we 
set out the appropriate standards for assessing the state’s interest in a vote dilution analysis. 

Copies of these briefs have been furnished to the court. 

2 

 



  

positions, it should nonetheless affirm the district court’s holding that plaintiff-intervenors 

proved a violation of section 2 in Harris County. 

ARGUMENT 

L The Standards of Review Advanced by the Dissent are Incompatible with the 

Guidelines for Assessing Vote Dilution Claims Set Out by Congress and the 

Supreme Court, and Followed by this Circuit 

Defendant-intervenors have advanced two novel and eccentric interpretations of how 

vote dilution claims should be analyzed. First, defendant-intervenor Wood claims, in direct 

contradiction to Congress’ express and repeated directives, that plaintiffs must show that 

racial bloc voting is caused by the racism of the white electorate. Second, the defendant- 

intervenors and Judge Higginbotham seek to change the "totality of circumstances" test into 

an inquiry that gives dispositive weight to the state’s interest in maintaining its system. 

These proposed standards conflict with three fundamental legal principles which 

must govern this case. First, the central purpose of the 1982 amendments to the Voting 

Rights Act, 42 U.S.C §1973 as amended, was to eliminate any purpose or intent 

requirement from plaintiffs’ proof. Second, the "totality of circumstances” test set out by 

Congress and upheld by the Supreme Court in Thornburg v. Gingles, 478 U.S. 30 (1986), 

mandates that no one circumstance or factor dispose of section 2 claims. Third, HLA v. 

Attorney General of Texas, 115 L.Ed. 3d 379 (1991), squarely holds that section 2 of the 

Voting Rights Act and the "totality of circumstances" test applies to the election of judges. 

 



  

A. Plaintiffs in Section 2 Cases Need Not Show that White Voters are 
Racist in Order to Prove that Voting is Racially Polarized 

The very purpose of the amendments to section 2 was to eliminate any purpose or 

intent requirement from section 2 cases. Under amended section 2, courts must find 

violations whenever plaintiffs show that a challenged election practice results in denying 

minority voters an equal opportunity to participate in the political process and elect their 

candidates of choice, regardless of why the system was adopted or maintained. Requiring 

plaintiffs to prove that the refusal of white voters to support particular African American 

candidates is motivated by racism, as the defendant-intervenors advocate, requires asking 

about the presence of a discriminatory motivation and thus re-introduces "intent" as a 

critical element of proof under section 2. 

Such a requirement is entirely incompatible the 1982 amendments.” The Senate 

Report that accompanied the amendments contains the most compelling and unequivocal 

evidence of Congress’ commitment to eliminating proof of "intent" from section 2 vote 

dilution analysis: 

[T]he specific intent of this amendment [to Section 2] is that 
the plaintiffs may choose to establish discriminatory results 
without proving any kind of discriminatory purpose. 

Senate Report No. 97-417, 97th Cong., 2nd Sess. 28 (1982) (hereafter "S. Rep. at __") 

  

31t is undisputed that Section 2 of the Voting Rights Act was amended in 1982 to overturn 
the Supreme Court’s decision in Mobile v. City of Bolden, 446 U.S. 55 (1980) and to remove any 
requirement that minority voters prove racist intent on the part of whites in order to prevail in a 
Section 2 vote dilution claim. See Thornburg v. Gingles, 478 U.S. at 35 ("Congress substantially 
revised § 2 to make clear that a violation could be proved by showing discriminatory effects alone"). 

4 

 



  

(emphasis added).* In the Senate Report Congress articulated three principal reasons for 

rejecting any "intent" requirement, all of which compel the rejection of defendant- 

intervenors’ position. 

First, Congress determined that the motivation behind the adoption of a particular 

election practice is irrelevant, so long as that practice has the current effect of excluding 

minorities from meaningful participation in the political process. See S. Rep. at 36. Thus, 

the relevant question is not why white voters have cast their ballots in a particular way, but 

whether their voting pattern, in concert with other factors, denies African American voters 

the opportunity to elect their candidates of choice. 

Second, Congress’ review of prior cases showed that the "intent" inquiry proved 

unnecessarily divisive to communities, and undermined "existing racial progress" in local 

jurisdictions. S. Rep. at 36. Congress wanted to eliminate the need to "brand individuals 

as racist in order to obtain judicial relief." Id. Defendant-intervenors’ position would 

ultimately require plaintiffs to brand entire communities as racist. Only by engaging in the 

most cramped reading of the legislative history of the amendments to section 2 can one 

conclude that Congress’ policy concerns apply only to proof "that legislators intended to 

discriminate when they enacted or maintained a challenged electoral system" as Judge 

Higginbotham recently contended. Dissent at 71 (emphasis in original). Indeed, Congress 

expressly rejected the intent test because it required leveling charges of racism against 

  

*The Supreme Court has specifically recognized the Senate Report as the "authoritative source 
for legislative intent" in interpreting amended Section 2. Gingles, 478 U.S. at 43 n.7. 

5 

 



"individual officials or entire communities" S. Rep. at 36 (emphasis added).” If anything, 

requiring plaintiffs to prove the racism of individual white citizens to show polarized voting 

would be even more divisive than focusing solely on the behavior of a few, often long-gone 

state legislators. 

Third, Congress was concerned that an "intent" requirement imposed too high a 

burden of proof on the plaintiffs. - Defendant-intevenors’ position would in fact impose an 

impossible burden. This Court has already, and correctly, held that "[t]he motivation[s] of 

... individual voters may not be subjected to ... searching judicial inquiry" by plaintiffs who 

ask them to reveal individually how they cast their votes. Kirksey v. City of Jackson, Miss., 

663 F.2d 659, 662 (5th Cir. 1981) reh’g and reh’g en banc denied, 669 F.2d 316 (5th Cir. 

1982). Thus, plaintiffs are barred from seeking the most direct, relevant evidence of 

causation -- the motives of individual white voters who voted against African American 

candidates. Surely, plaintiffs cannot be required to prove by indirect evidence something 

they are barred from showing directly. 

Judge Higginbotham thus properly rejects the defendant-intervenors’ expansive 

purpose requirement because "a rule conditioning relief under Section 2 upon proof of 

racial animus in the electorate ... would impose far too great a burden on plaintiffs." 

Dissent at 36-37. But he then wrongly attempts to rescue the "causation" argument by 

recasting it and proposing that the plaintiffs’ showing be "limit[ed]" only to "whether 

  

>The strength of Congress’ commitment to avoiding any kind of "intent" inquiry is reflected 
in its list of the factors most likely to prove the existence of dilution (hereafter "Senate Factors"). 
Neither evidence of motivation or causation for vote dilution were included among the most 
probative factors set out by Congress.  



  

divergent voting patterns are caused by partisan differences." Dissent at 37.° But even 

a limited version of the "causation" requirement cannot withstand practical or legal scrutiny. 

Judge Higginbotham’s position only highlights the peculiarity of the new standard. 

Causation is an evidentiary Pandora’s box. Once evidence regarding the salience of 

partisan voting patterns becomes an essential element of the inquiry into racial bloc voting, 

the court can provide no reasoned justification for limiting review to only this one causative 

factor. Defendant-intevenor Wood’s somewhat breathless list of hypothetical, and 

unsupported explanations for the consistent defeat of African American candidates -- 

perhaps it was partisan voting,’ or perhaps the endorsement of the Houston Bar 

Association, or perhaps the endorsement of the Houston Post or the Houston Chronicle; 

maybe, sometimes, unflattering press accounts, or candidates’ Anglo-Saxon names, or the 

support of the Gay Political Caucus explain the outcomes -- shows the untethered nature 

of such a standardless inquiry: the recitation of excuses differs from election to election and 

from candidate to candidate. But even if the evidence were organized scientifically, and 

applied uniformly to all elections, a multivariate analysis inevitably would provide more 

  

Judge Higginbotham does contend however, that proof that white bloc voting cannot be 
explained by partisan voting establishes only "an inference . . . that race is at work." Dissent at 26. 
It is not readily apparent whether Judge Higginbotham contemplates limiting the causation 
requirement only to cases involving judicial elections, or whether this standard would be imposed 
upon all vote dilution cases. 

"Moreover, the defendant-intervenors’ insistence that judicial elections are controlled by partisan 
voting patterns conflicts with their passionately argued view, see, e.g., April 2, 1992, Brief of 
Defendant-Intervenor Entz at 19-22, shared by Judge Higginbotham, see Dissent at 47-48, that 
judicial elections should be assessed under different standards than those used to analyze elections 
for non-judicial offices, because the function of judges is different than other elected offices. 

Defendant-intervenors must choose between their characterization of elected judges as 
independent, impartial officers above the political fray, or as political candidates whose election is 
beholden to the rough and tumble of Texas partisan politics. 

7 

 



  

heat than light, since the analysis itself would say nothing about whether the allegedly non- 

racial factors raised by defendants were themselves the products of intentional 

discrimination.® The same barrage of excuses to explain the racially divergent voting 

patterns in North Carolina was offered by the State in Gingles. As discussed below, the 

district court rejected these offerings by the defendant, and determined that voting was 

racially polarized based on the statistical patterns in the relevant elections. See Gingles v. 

Edmisten, 590 F.Supp 345, 368 n.32 (E.D.N.C. 1984) (three-judge court). The district 

court’s finding of racially polarized was affirmed by the Supreme Court. 

B.  Gingles Does Not Require that Plaintiffs Prove the Cause of 
Racially Polarized Voting 

The theory that Gingles even permits, let alone requires, that plaintiffs prove that 

racism lies behind white voters’ refusal to support the African American community’s 

candidates of choice, rests on a fundamental flawed reading of the case. Justice Brennan’s 

plurality opinion squarely rejects such a claim: "the reasons black and white voters vote 

differently have no relevance to the central inquiry of § 2." Gingles, 478 U.S. at 63. Justice 

White's concurring opinion did not dispute this central point. Rather, he thought that the 

  

8For example, defendant-intervenor’s position would potentially permit such far-afield 
inquiries as whether the refusal of newspapers like the Houston Post and Chronicle to endorse 
minority judges running for a particular office was motivated by racism and that the Houston Bar 
Association’s failure to endorse African American candidates in particular elections was motivated 
by racism within the Bar Association. 

This would impose an inordinately high burden on plaintiffs, and would require the most 
divisive kind of investigation into the racial motivations of the electorate and local community 
institutions. It is difficult to imagine, given Congress’ emphasis in amending Section 2 as set out 
above, that Congress would have condoned an interpretation of section 2 which required this kind 
of proof. 

 



  

electoral success of minority candidates, regardless of whether they were supported by the 

African American community, might be used by defendants as rebuttal evidence.” (That 

difference of opinion is clearly irrelevant to Harris County, since white voters refused to 

vote for virtually any African American candidates, thus foreclosing the claim.) Nor does 

Justice O’Connor’s concurrence provide any support. White she suggested that she might 

find "[e]vidence that a candidate preferred by the minority group in a particular election was 

rejected for reasons other than those which made that candidate the preferred choice of 

the minority group," id. at 100 (emphasis added), she never intimated that defendants could 

use a bevy of excuses to justify maintaining a system in which "bloc voting by white voters 

will consistently defeat minority candidates." Id. (emphasis added). She remained firmly 

focused on the question whether minority voters could elect their preferred candidates. 

In any case, nothing in either Justice White's or Justice O’Connor’s respective 

concurrences urges imposing the burden on plaintiffs to prove that no non-racial factors 

explain the statistically proven racially divergent voting patterns. In short, Gingles does not 

authorize or require the kind of causation analysis promoted by the defendants or Judge 

Higginbotham." Cf. Bazemore v. Friday, 478 U.S. 385, 404 (1986) (rejecting the claim that 

plaintiffs must rebut all possible multivariate explanations as part of their case in chief). 

  

*This view is also the view expressed by Judge Higginbotham in his Dissent in LULAC. See e.g., 
Dissent at 10. No other justice on the Supreme Court in Gingles has supported giving weight to 
elections in which minority candidates who were not the choice of minority voters were elected. 

%Indeed, the Supreme Court in Gingles affirmed the district court’s finding of racially 
polarized voting, based on statistical evidence, despite the State’s insistence that partisan voting and 
other ostensibly non-racial factors explained the racially divergent voting patterns found in that case. 
See Gingles v. Edmisten, 590 F.Supp. at 368. 

 



  

C. No Other Court Has Required that Plaintiffs Prove the Cause of 
Racially Polarized Voting : 

Courts have been uniform in the view that the most salient elections for determining 

whether voting is racially polarized in a jurisdiction are elections involving African 

American and white candidates. Jeffers v. Clinton, 730 F.Supp. 196, 208-209 (E.D. Ark. 

1989) (three-judge-court) aff'd mem., 112 L.Ed.2d 656 (1991); Mallory v. Eyrich, 707 

F.Supp. 947, 951-952 (S.D. Ohio 1989); Sanchez v. Bond, 875 F.2d 1488 (10th Cir. 1989). 

None of these courts have required proof of causation in order for plaintiffs to prove 

racially polarized voting." 

The obvious limitations of an attempt to ascertain the "cause" of racially divergent 

voting patterns, as described above, have persuaded this Court to reject any requirement 

that plaintiffs prove racially polarized voting through "multivariate" statistical analysis." 

Every decision in this circuit which has addressed the question of the role of causation in 

an analysis of polarized voting, has concluded that a court need not engage in an inquiry 

into the motives of white voters in rejecting African American candidates. See Overton v. 

City of Austin, 871 F.2d 529,538 (5th Cir. 1989); Campos v. City of Baytown, 840 F.2d 

  

"The Eleventh Circuit did not endorse the view proferred by Judge Tjoflat and cited by the 
Dissent in LULAC, that plaintiffs must prove that the cause of white bloc voting is racism in the 
white community. See Solomon v. Liberty County, Florida, 899 F.2d 1012 (11th Cir. 1990). The 10th 

Circuit has expressly adopted the view that the "cause" of racial differences in candidate preferences 
is "unimportant" to the determination of bloc voting. Sanchez v. Bond, 875 F.2d 1488, 1493 (10th 
Cir. 1989). 

2In Overton v. City of Austin, for example, this Court held that the analysis used by the 
district court in LULAC, which focuses on the results of bivariate regression and homogenous 
precinct analysis and supporting lay testimony, rather than extrinsic factors such as political party, 
is an appropriate method of determining the existence of legally significant racial bloc voting. 871 
F.2d 529, 538 (5th Cir. 1989). See also LULAC v. Midland Ind. Sch. Dist., 812 F.2d 1494 (5th Cir. 
1987), vacated on other grounds, 829 F.2d 546 (5th Cir. 1987). 

10 

 



1240,1243 (5th Cir. 1988); Citizens for a Better Gretna v. City of Gretna, 636 F.Supp. 1113, 

1130 (E.D. La. 1986), aff'd, 834 F.2d 496 (5th Cir. 1987).” These decisions have 

consistently affirmed the view that the statistical bivariate regression analysis approved by 

the Supreme Court in Gingles is sufficient to prove the existence of racially polarized 

voting. 

IL The Legitimacy of the State’s Interests is Not a Defense to Proven Vote Dilution 

Plaintiff-intervenors have never argued that the state’s interests are entitled to no 

consideration in a vote dilution analysis. Thus there are only two questions before this 

court with regard to the state’s interest: (1) at what point in the "totality of circumstances" 

test is it appropriate to consider particular state interests, and; (2) how much weight should 

be afforded those interests in the calculus of dilution. 

Judge Higginbotham has interpreted HLA as "direct[ing] that on remand [the state’s] 

interest ... be weighed in determining whether a violation of the Act has occurred." Dissent 

at 44. He then proposes that in making this determination this court must decide "whether 

the state’s substantial interest [in the at-large election of district judges] outweighs plaintiffs’ 

proof of dilution." Dissent at 50. Under such a standard, the state’s interest is given 

controlling weight in the dilution analysis. The legitimacy or "substantiality" of the state’s 

interest in using a particular election structure is balanced against the plaintiffs’ proof of 

dilution. If the state’s interest is "substantial," according to the dissent, even proven vote 

  

BThis Circuit has consistently affirmed findings of racially polarized voting in the lower court 
based on a statistical review of elections involving African American and white candidate. See 
Campos v. City of Baytown, 840 F.2d 1240,1243 (5th Cir. 1988); LULAC v. Midland ISD, 812 F.2d 

1494,1501 n.14 (5th Cir. 1987), vacated on other grounds, 829 F.2d 546 (5th Cir. 1987). 

11  



  

dilution is outweighed. This view is simply in direct conflict with the "results" test. 

Much like the defendants’ proposed imposition of a causation showing for racially 

polarized voting, the view that a "substantial" state interest in at-large elections can trump 

plaintiffs’ proof of dilution re-imports an "intent" inquiry into the section 2 "results" 

determination. By removing any "intent" requirement from section 2, Congress deliberately 

shifted the focus of the dilution inquiry away from the purposes behind the state’s use of 

a challenged electoral practice. Giving the state’s interest dispositive weight in the dilution 

determination shifts the focus of the inquiry back to the intent underlying the enactment 

or maintenance of the challenged election practice, in direct conflict with Congress’ 

intention in amending Section 2. This court may not "supplant the stated aims of Congress 

with its own policy preferences." LULAC v. Clements, 914 F.2d at 654 (Johnson, J., 

dissenting). 

Congress’ views with regard to the significance of the state’s interest in the liability 

determination under amended section 2 is amply documented in the legislative history. In 

fact, Congress responded to precisely the position advanced by the defendants and Judge 

Higginbotham. It unequivocally declared that "if an electoral system operates today to 

exclude blacks or Hispanics from a fair chance to participate," then legitimate reasons for 

enacting the challenged law "100 years ago [are] of the most limited relevance." S. Rep. 

at 36. 

Congress specifically defined the limitation of the relevance of the state’s interest 

through the Senate Report factors. In keeping with the "results-oriented" inquiry, Congress 

deliberately assigned limited probative value to the state’s interest, citing the tenuousness 

12 

 



  

of the state’s interests as one factor perhaps to be considered in some cases. But it rejected 

the idea that the legitimacy of the challenged electoral practice somehow rebuts plaintiffs’ 

proof of dilution." See Additonal Views of Senator Robert Dole, S. Rep. at 195 

(rejecting suggestion that "defendants be permitted to rebut a showing of discriminatory 

results by a showing of some nondiscriminatory purpose behind the challenged voting 

practice or structure"). Moreover, Congress specifically cautioned against giving too much 

weight to the state’s interest, advising that "even a consistently applied practice premised 

on a racially neutral policy would not negate a plaintiff's showing through other factors that 

the challenged practice denies minorities fair access to the process." S. Rep. at 29 n.117." 

III. The State’s Interest Should be Weighed in the Totality of Circumstances 

Since this case was first appealed, the parties have presented differing views on when 

and how the state’s interests should be assessed in a vote dilution inquiry. The defendants 

have consistently advanced the view that the state’s interest must be weighed at the liability 

stage. Rather than just weighing the state’s interest with other relevant factors in the 

dilution analysis, however, the defendants and recently Judge Higginbotham, have argued 

that in this case the state’s asserted interest in linking the electoral and jurisdictional base 

of its trial judges must be weighed against the proof of vote dilution proferred by minority 

voters. 

  

“Neither the presence nor absence of any single factor can constitute "rebuttal evidence of non- 
dilution." S. Rep. at 29 n. 118. 

Texas has failed to even demonstrate that its purported interest in the "linkage" of electoral 
and jurisdictional base for trial judges is a "consistently applied practice." 

13 

 



  

In our view, the state’s interest, like other factors identified by Congress, is one 

factor which can be considered at the liability stage. But the state’s interest in entitled to 

no greater weight than other factors, such as the lack of minority electoral success, Texas’ 

long history of race discrimination, or the pervasiveness of racial bloc voting. 

During the liability phase of a section 2 case, the state’s interest in retaining its 

system should be accorded substantial weight only if tenuousness forms a major part of the 

plaintiff’s case, that is, if plaintiffs are challenging a particular practice precisely because of 

its reflection of the state’s policy. For example, if minority voters were to challenge a 

state’s decision to have a single chief executive, then the state’s interest in electing one 

Governor for the entire state would necessarily be a central feature of the liability phase. 

Similarly, if plaintiffs in this case challenged the requirement that district judges in Texas 

have legal training in order to qualify for office, the state’s interest in having a judiciary 

familiar with the law would be central to the liability question. 

But where minority voters do not claim that section 2 renders the state’s interest 

illegitimate, it is more appropriate to defer consideration of the state’s interest to the 

remedy phase. In this case, plaintiff-intervenors are not claiming that the state’s purported 

interest in linkage denies them an ability to participate equally in the political process or 

to elect the candidates of their choice. African American and Hispanic voters merely 

challenge the dilutive nature of the current system. Dilution in this case, does not turn on 

the presence or absence of the state’s interest in linkage. This is illustrated by the fact that 

non-dilutive electoral alternatives exist that would accomodate the state’s asserted interest 

14 

 



  

in linkage.!* At the remedy phase, where the State has the first opportunity to fashion 

an appropriate remedy, its interest in maintaining the use of the non-dilutive features of 

the challenged election system can be afforded appropriate weight." 

The Supreme Court’s decision in HLA supports our view. HLA held that "the 

State’s interest in maintaining an at-large, district-wide electoral scheme for single-member 

offices is merely one factor to be considered in evaluating the ‘totality of circumstances." 

115 L.Ed. 2d at 387. In accordance with that view, the Supreme Court reaffirmed the role 

of the state’s interest as a factor for consideration in the "totality of circumstances" vote 

dilution analysis. Id. The "totality of circumstances" test informs both the liability and 

remedy phase of the litigation. The Court did not direct this court to consider the state’s 

purported interest in "linkage" at the liability phase. To the contrary, the Court expressly 

contemplated that the state’s interest could be properly considered at the remedy phase: 

we believe [the state’s interests concerns] are matters that are 
relevant either to an analysis of the totality of circumstances 
that must be considered in an amplication of the results test 
embodied in Section 2, . . or to a consideration of possible 

remedies in the event a violation is proved. 

  

Moreover, where the state, as in this case, has failed to prove that it in fact has a state interest 

in "linkage" for trial court judges, consideration of that interest cannot be at the core of the liability 
determination. 

Nevertheless, this Court specifically has cautioned against accomodating the state’s interests 
"at the expense of effective black minority participation in democracy” when determining the 
appropriate remedy for proven dilution. Kirksey v. Bd. of Sup’rs Hinds County, Miss., 554 F.2d 139, 
151 (5th Cir. 1977). 

15 

 



  

HLA, 115 L.Ed. 2d at 387 (emphasis added).'® The interests asserted by Texas in this case 

are most appropriately considered at the remedy phase, since remedies exist which could 

cure the dilutive nature of the current system, while preserving the State’s asserted interests 

in "linkage." If "linkage" is such an important interest, the State may propose remedies such 

as cumulative or limited voting, which will cure the proven dilution, yet maintain the 

linkage of electoral and jurisdictional base of judges. 

The relevance of these alternative remedies to the "state’s interest” question cannot 

be dismissed as "red herring[s]." See Dissent at 51. The Supreme Court in HLA expressly 

recognized the availability of such remedies and cited their possible implementation as part 

of its rationale for rejecting the "single-person office exemption" argument for judicial 

elections from the scope of Section 2. 115 L.Ed. 2d at 388. See also discussion infra at 

. The availability of cumulative and limited voting remedies dramatized to the Supreme 

Court, in fact, the danger of immunizing elections for "single-person offices" from Section 

2 coverage. The Supreme Court in HLA specifically rejected the ationals of the 

concurring judges in LULAC who proposed that trial judges should be exempt from the 

  

'8The Court’s subsequent discussion of the state’s interest culminates in its statement, often 
quoted by the defendants out of context, that "a state interest is a factor to be considered by the 
court in evaluating whether the evidence in a particular case supports a finding of a vote dilution 
violation in an election for a single-member office." That discussion cannot be cited as a directive 
by Congress to courts to so consider the state’s interest. 

Instead, any fair reading of this section of HLA reveals that the Court’s statement is merely 
its response to a hypothetical conclusion which the Court never reached in HLA: "assum[ing], 
arguendo, that the State’s interest in electing judges on a district-wide basis may preclude a remedy 
that involves redrawing boundaries." HLA, 115 L.Ed. 2d at 387 (emphasis in original). The Court 
in HLA never held that Texas’ asserted interest in "linkage" in fact precludes a districting remedy; 
nor did the Court hold that the current election system is necessary to protect Texas’ asserted 
interests. In fact, the Court in HLA expressly refrained from addressing the merits of the specific 
interests raised by Texas and Judge Higginbotham in LULAC. See HLA, 115 L.Ed. 2d at 386. 

16 

 



strictures of Section 2, because of the strength of the state’s interest in "linking" the 

jurisdictional and electoral base of "single-person officers." In refusing to adopt the 

LULAC concurrence’s reasoning, the Court specifically identified the possibility that the 

"impairment of a minority group’s voting strength could be remedied without signficantly 

impairing the State’s interest in electing judges on a district-wide basis." HLA, 115 L.Ed. 

2d at 388. 

Similarly, the availability of cumulative and limited voting options dramatize the 

danger of affording the state’s interest controlling weight at the liability stage of Section 

2 vote dilution analysis. Contrary to Judge Higginbotham’s contention,” cumulative and 

limited voting are remedies which address the very features of the election system 

challenged by the plaintiff-intervenors. Plaintiff-intervenors specifically challenged the 

features of the at-large election system that cumulative and limited voting cure: “the 

exclusionary at-large, winner-take-all, numbered place" method of electing district judges. 

See Complaint of Houston Lawyers’ Association at paragraph 42. 

Judge Higginbotham also mistakenly concludes that the "Gingles elements. . . do not 

establish whether other features of an electoral scheme, such as anti-single shot rules or 

majority runoffs cause dilution." Dissent at 51. First, the test set out in Gingles is a 

"flexible, fact-intensive" test which can accomodate an analysis of many different kinds of 

  

“Judge Higginbotham states that 

"[c]Jumulative or limited voting are election mechanisms which preserve district-wide 
elections. Thus, they are not even remedies for the particular structural problem 
which the plaintiffs have chosen to attack." 

Dissent at 51.  



vote dilution problems. See e.g, Growe v. Emison, 61 U.S.L.W. 4163 (February 23, 1993) 

Slip Op. at 14 (holding that the Gingles elements are applicable to claims challenging 

minority fragmentation in single-member districts). Second, both the Senate Report and 

Gingles expressly direct that courts examine the very electoral features cited by the Dissent 

as incompatible with a Gingles analysis. See S. Rep. at 29 (identifying anti-single shot 

provisions as procedures which "may enhance the opportunity for discrimination against the 

minority group"); Gingles, 478 U.S. at 38 (citing Senate Report). These enhancing features 

together create the exclusionary nature of the at-large system at issue in LULAC, which 

plaintiff-intervenors have contended, since the very outset, could be cured through the use 

of alternative non-exclusionary at-large election systems. 

IV. By Any Standard, Plaintiffs Proved Their Case in Harris County 

A. None of the Purportedly Non-Racial Rationale Offered by the 
Defendants In Fact Explain Racially Polarized Voting in Harris 
County 

Even if the defendants’ and Judge Higginbotham’s proposed standards for assessing 

racially polarized voting were adopted by this Court, plaintiff-intervenors would prevail in 

Harris County.” The uncontroverted evidence in the record shows that partisan voting 

does not, in fact, explain racially divergent voting patterns or lack of minority electoral 

success in district judge elections in Harris County, Texas. 

  

2This brief addresses only the claims of the Harris County plaintiff-intevenors. We therefore 
do not address the claims of plaintiffs in other counties, and nothing in this brief should be taken 

to suggest that they are not entitled to relief. 

18  



Judge Higginbotham concludes based on the defendant-intervenors’s exhibits, that "of 

22 black Democrats only three were elected, about 13.64%. By contrast, white Democrats 

won four out of five, 80% of their races." Dissent at 112. Judge Higginbotham also 

found that "four out of six black Democratic candidates, Berry, Fitch, Fisher, and Lee, lost 

in 1986, a year in which all other Democrats won." Id. The Plaintiff-intervenors’ exhibits 

correctly indicate that in addition to those African American candidates, incumbent African 

American judge Matthew Plummer also ran for election in 1986 and lost. See P-I Exhibit 

1. Plummer, Berry, Fitch, and Williams were all Democratic incumbents who had been 

appointed to fill unexpired terms, but lost their election bids in 1986. It should be noted 

Mark White, won a majority of the votes in Harris County. The district court found that 

Governor White at the top of the ticket "swept" into office every incumbent white 

Democratic district judge, but failed to "sweep" in the African American Democratic 

incumbents. LULAC v. Clements, RE at 28. The evidence is overwhelmingly clear: 

partisan voting does not, in fact, explain the loss by African American candidates in district 

judge elections in Harris County. 

Nor does partisan voting explain the differences in candidate preferences between 

white and African American voters found by the experts. Plaintiff-intervenors’ expert, Dr. 

Engstrom, testified that the overwhelming majority of African American district judge 

  

2IDr. Engstrom, the expert for the plaintiff-intervenors in Harris County testified that between 
1980 and 1988 only 12.5% of African American Democratic district judge candidates were elected, 
while during the same period 52% of white Democratic district judge candidates were elected. TR. 
at 3-134-135. By both the plaintiff-intervenors and the defendant-intervenors’ evidence, partisan 
voting does not explain lack of minority electoral success or racially polarized voting in Harris 
County. ; 

19  



  

candidates who ran in general elections between 1980 and 1988 in Harris County received 

a number of votes which consistently put African American candidates in the bottom half 

of all candidate vote getters in the County. TR. at 3-134-136. See Gingles v. Edmisten, 590 

F.Supp. at 368 (white voters in heavily Democratic areas consistently ranked African 

American candidates next to last among all candidates). 

The Harris County evidence withstands even the racial polarization standards 

advanced by the defendant-intervenors, Judge Higginbotham, and the concurring justices 

in Gingles. The record is replete with evidence that the non-racial explanations offered by 

the defendants do not explain the consistent defeat of African American judicial candidates 

in Harris County. In 1986 when all of the white Democratic judges were swept into the 

office by the Democrat at the top of the ticket, all of the African American Democratic 

district judge lost their election bids. Several of the defeated Aliens American candidates 

were incumbents (Judges Berry, Fitch and Plummer had been appointed and thus ran as 

incumbents). Judge Francis Williams was endorsed by the Houston Bar Poll and at least 

one of the major Houston newspapers. 

B. The Houston Lawyers’ Association Proved the Existence of Vote 
Dilution in Harris County 

The Houston Lawyers’ Association also proved the existence of other factors which 

support its claim that the current method of electing district judges in Harris County, 

dilutes the voting strength of politically cohesive African American voters. 

It was undisputed at trial that African Americans could constitute a majority of the 

20 

 



  

voting age population in at least nine single-member judicial districts. Plaintiff-intervenors 

profferred illustrative electoral sub-districts in order to illustrate to the court, in accordance 

with the first prong of the three-part Gingles test, the nature of the dilution challenged. 

It was also conceded by all parties that African American voters in Harris County are 

politically cohesive. In 16 of 17 election contests involving white and African American 

candidates examined by the  plaintiff-intervenors’ expert, African American voters 

consistently gave at least 97% of their vote to the African American candidate. RE at 26. 

The record also attests to the lack of African American electoral success in Harris 

County. Only three African Americans successfully ran in an opposed general election for 

district judge in Harris County during the 1980s.” One of those judges, John Peavy, was 

initially appinted to the bench and has run unopposed since 1978. The other sitting African 

  

2The suggestion that the success of African American candidates who were not the candidate 
of choice of African American voters should be given weight in the polarized voting analysis has 
been rejected by this court. Campos v. City of Baytown, 840 F.2d 1240, 1245 (5th Cr. 1988)(a "viable 
candidate is one which the minority group sponsors"). Similarly, the suggestion that the election 
of white candidates who were supported by African American voters in any way changes plaintiff- 
intervenors’ proof of racially polarized voting ignores the common-sense conclusion of this court 
that "[eJvidence of black support for white candidates in an all-white field . . . tells us nothing about 
the tendency of white bloc voting to defeat black candidates." Westwego Citizens for a Better Gov't 
v. City of Westwego, 872 F.2d 1201, 1208 n.7 (5th Cir. 1989), on remand, 946 F.2d 1109, 1119 n. 15 

(5th Cir. 1991). 
Finally, Judge Higginbotham’s suggestion that elections involving Hispanic candidates must 

be considered in the racial bloc voting analysis in Harris County is entirely insupportable. Plaintiffs 
have advanced no claim on behalf of Hispanics in Harris County. Plaintiff-intervenors advanced 
a claim on behalf of African American voters only. African American voters in Harris County 
cannot be forced to include Hispanics in their vote dilution analysis simply because entirely different 
parties claim that African Americans and Hispanics are politically cohesive in an entirely different 
county in the state. The vote dilution inquiry under Section 2 is "an intensely local appraisal’ 
Gingles, 478 U.S. at 79 (emphasis added). The presence of political cohesiveness between African 
Americans and Hispanics in Midland County, therefore, does not "compel the conclusion that there 
is also black-Hispanic cohesion in Harris" County as Judge Higginbotham contends. Dissent at 40. 

Moreover, racial minorities protected under the Voting Rights Act are not interchangeable. 
White voters support of Hispanic candidates does not tell us anything about the willingness of white 
voters to support African American candidates. 

21 

 



  

American district judge, Carl Walker, won in 1986, winning a judicial seat that had been 

held by a white judge also named Walker. The late Thomas Routt, the third African 

American judge who ran in an opposed district judge general election and won, testified 

that minority candidates enjoy greater success if they do not disclose their racial identity 

when they run for judicial office in Harris County. TR. at 3-206. Then-incumbent Judge 

Routt barely defeated his white opponent, ‘a virtual unknown in 1982, by receiving 51%, a 

bare majority of the total vote.” See Gingles, 478 U.S. at 60-61 (appropriateness of closely 

examining circumstances of election of African Americans). 

In addition to proof of racially polarized voting and lack of minority electoral 

success,” plaintiff-intervenors proved the presence of the other particularly relevant 

Senate Report factors as well. The District Court took judicial notice of the history of 

discrimination which has touched the right of African Americans to vote and otherwise 

participate in the political process. RE at 69-70. Plaintiff-intervenor Weldon Berry, a 

member of the Houston Lawyers’ Association, attested to the history of discrimination in 

education in Harris County which precipitated his attendance at Texas State University for 

Negroes in 1950 in order to receive a legal education in the state of Texas. Texas State 

University for Negroes was erected by the State to avoid permitting African Americans to 

attend the University of Texas Law School. See Sweatt v. Painter, 339 U.S. 629 (1950). 

Similarly, the evidence regarding the lingering effects of discrimination in Harris 

  

BIn 1991, African American Judge John Kyles was appointed to fill the seat vacated upon the 
death of Judge Routt. In his election bid to retain his seat, Judge Kyles was defeated by a white 
opponent in the November, 1992 general election. 

24Proof of racially polarized voting and lack of minority electoral success are the two most 
important factors to consider in the vote dilution analysis. Gingles, 478 U.S. at 48 n.15. 

0 

 



  

County which affects the socioeconomic condition of African Americans, see Plaintiff's 

Exhibit H-08, was essentially undisputed. 

C The State Has Never, In Fact, Proved its Interest in "Linkage" 

At trial the State of Texas offered 3 reasons to support its interest in using the 

challenged election district judge election system: 

"(1) judges elected from smaller districts would be more 
susceptible to undue influence by organized crime; (2) changes 
in the current system would result n costly administrative 
changes for District Clerk’s offices; and (3) the system of 

specialized courts in some counties would disenfranchise all 
voters rights to elect judges with jurisdiction over some 
matters.?" 

RE at 76. The District correctly found that these interests were not "compelling," in part 

because the State’s concerns could be accomodated by several remedial options. Id. 

In reliance on the analysis set out in LULAC II, 914 F.2d 620 (5th Cir. 1990), the 

defendants have now discovered a "new" primary interest in preserving the current district 

judge election system as an interest in "linking" the electoral and jurisdictional base of 

district judges. But Texas’ rhetorical assertion of its interest on appeal cannot translate into 

proof that such an "interest" exists, nor that such an interest is sufficiently strong to 

outweigh the consistent denial of equal voting opportunity to African American voters. 

The interests actually asserted by Texas at trial are de minimis, and obviously 

insufficient to warrant great weight in the vote dilution analysis. .. The district court’s 

  

251t was in the context of specialized courts that the State raised the "linkage" argument at 

trial. 

23 

 



findings as to the state’s interest actually asserted at trial is undoubtedly not clearly 

€IToneous. 

The state’s asserted fear that judges elected from small districts would be subject to 

the influence of organized crime is undermined by the existence of current judicial districts 

smaller than the hypothetical sub-districts for Harris County proferred by plaintiff- 

intervenors. The state’s administrative concerns regarding specialized courts and the cost 

of reorganization are irrelevant to the question whether the current system discriminates 

against minority voters. This Court has held that administrative considerations should not 

"play a role in determining whether there has been a violation of section 2." Westwego, 872 

F.2d at 1211.. The disrupution of the specialized functions of elected officials resulting from 

a proposed change in the electoral system "is not a sufficient ground for maintaining an 

otherwise flawed system." Id., citing Dillard v. Crenshaw County, 831 F.2d 246 252 (11th Cir. 

1986). Clearly the interest asserted by the State during trial -- the appropriate forum for 

advancing such claims -- are not "compelling" or even "substantial." 

Even the "linkage" interest Texas asserts on appeal is not persuasive. First, Texas’ 

interest is undermined by its own Constitution, which provides that counties may choose 

to elect their judges from sub-districts. Art. 5 Section 7(a)(i), Texas Constitution of 1876, 

as amended. The fact that since 1985, when this provision was enacted in the Constitution 

no county has exercised the option to elect district judges from sub-districts does not, as 

Judge Higginbotham overstates, constitute "254 distinct affirmations of [the state’s] policy." 

Dissent at 50. Texas’ policy interest is indicated more directly by its decision to include 

such an option in its Constitution.  



  

Texas’ claim that the "linkage" of the jurisdictional and electoral base for judges is 

essential to maintaining judicial independence and accountability is simply not supported 

by Texas’ practices. First, Texas does not require "linkage" for its Justices of the Peace, 

who are elected from sub-districts within the county, but exercise countywide jurisdiction. 

See Bradley v. Swearingen, 525 S.W. 2d 280,282 (Tex. Civ. App. 1975). Moreover, Texas 

does not insure that litigants will appear before judges over whom they have electoral 

control -- a central argument advanced by the proponents of the "linkage" argument. See 

Higginbotham Dissent at 47. Chief Justice Phillips, chair of the Texas Judicial Districts 

Board, testified at trial that judges in Texas are often called to hear cases in counties 

outside of the county from which they were elected to assist with docket control. TR. 5- 

120. As a result, litigants in Texas may often appear before judgs over whom they have no 

electoral control. | 

This court may not simply assume the legitimacy of the "linkage" interest. Many 

states, such as North Carolina, New York, New Mexico, Louisiana, Mississippi and 

Arkansas, elect some of their trial judges from districts which are not co-terminous with the 

judge’s area of primary jurisdiction. These states are presumably also concerned with 

having a qualified, independent judiciary. Nothing in the record, Texas law, or the 

imaginative hypothesizing of inventive defendants can justify concluding that Texas’ 

eleventh-hour invocation of linkage outweighs the national policy of giving minority voters 

an equal opportunity to participate and elect the candidates of their choice. 

25 

 



  

CONCLUSION 

For the foregoing reasons, plaintiff-intervenors respectfully request that this Court 
affirm the findings of the district court as to Harris County, Texas. 

Gabrielle K. McDonald, Esq. 
Walker & Satterthwaite 
7800 N. Mopac 

Suite 215 
Austin, TX 78759 
(512) 346-6801 

Council for Houston Lawyers’ Association 

April 19, 1993 

   
Respectfully submitted, 

A HL 
  

    

Elaine R/ Joes 

Charles Stephen Ralston 
Sherrilyn A. Ifill 
99 Hudson Street 
16th Floor 

New York, NY 10013 

(212) 219-1900 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that on this 19th day of April, 1993 a true and correct copy of an 

Appellee-Intervenors’ Supplemental Brief on Rehearing En Banc was mailed to counsel of 

record in this case by first class United States mail, postage pre-paid, as follows: 

William L. Garrett 
Brenda Hall Thompson 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, TX 75225 

Rolando L. Rios 

The Law Office of Rolando 
L. Rios 

Milam Building, Suite 1024 
115 E. Travis Street 
San Antonio, TX 78205 

Edward B. Cloutman, III 

Cloutman, Albright & Bower 
3301 Elm Street 

Dallas, TX 75226-1637 

J. Eugene Clements 
John E. O’Neill 

Evelyn V. Keyes 
Porter & Clements 

700 Louisiana, Suite 3500 

Houston, TX 7002-2730 

Michael J. Wood 

Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 77002 

John L. Hill, Jr. 

Liddell, Sapp, Zivley, 
Hill & LaBoon 

3300 Texas Commerce Tower 

Houston, TX 77002 

David R. Richards 
Special Counsel 
600 West 7th Street 
Austin, TX 78701 

Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 
1717 Main Street 

Dallas, TX 75201 

Gabrielle K. McDonald 

Walker & Satterthwaite 
7800 N. Mopac 
Suite 215 

Austin, TX 78750 

 



  

Dan Morales 

Will Pryor 
Mary F. Keller 
Renea Hicks 

Javier Guajardo 
Attorney General's Office 
Price Daniel Sr. 

Office Building 
209 W. 14th Street 

Austin, TX 78701-2548 

Seagal V. Wheatley 
Donald R. Philbin, Jr. 

Oppenheimer, Rosenberg, 
Kelleher & Wheatley, Inc. 

711 Navarro, Sixth Floor 
San Antonio, TX 78205 

E. Brice Cunningham 
777 South R.L. Thornton Freeway 
Suite 121 
Dallas, TX 75203 

Darrell Smith 

10999 Interstate Highway 10 
Suite 905 

San Antonio, TX 78230 

Walter L. Irvin 

5787 South Hampton Road 
Suite 210, Lock Box 122 

Dallas, TX 75232-2255 

Ken Oden 

Travis County Attorney 
P.O. Box 1748 

Austin, TX 78767 

Tom Rugg 

Jefferson County 
Courthouse 

Beaumont, TX 77701 

Jessica Dunsay Silver, Esq. 
Mark Gross, Esq. 
c/o Attorney General of the 
United States 

United States Department 
of Justice 

Main Justice Building 
10th & Pennsylvania 
Avenue, N.W. 

Washington, D.C. 20530 

  

Sherrilyn 
Attorney 

A Spt Ifill” 
r Plaintiffs-Appellees