LULAC v. Clements Opinion

    LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

LEAGUE OF UNITED LATIN AMERI- 

CAN CITIZENS COUNCIL NO. 4434, 

Plaintiffs-Appellees, 

and 

Jesse Oliver, et al., Intervening 

Plaintiffs—Appellees, 

Vv. 

William P. CLEMENTS, etc., et 

al., Defendants, 

Jim MATTOX, et al., 

Defendants—-Appellees, 

Appellants, 

V. 

Judge F. Harold ENTZ, etc., Judge Sharo- 

lyn Wood, etc., and George S. Bayoud, 

Jr., etc., Defendants—-Appellants, 

and 

Tom Rickhoff, Susan D. Reed, John J. 

Specia, Jr., Sid L. Harle, Sharon Mac- 

rae and Michael P. Pedan, Bexar Coun- 

ty, Texas State District Judges, Appel- 

lants. 

No. 90-8014. 

United States Court of Appeals, 

Fifth Circuit. 

Sept. 28, 1990. 

Action was brought under Voting 

Rights Act challenging at-large method of 

election of trial court judges in certain Tex- 

as counties. The United States District 

Court for the Western District of Texas, 

Lucius Desha Bunton, III, Chief Judge, 

granted relief, and appeal was taken. The 

Court of Appeals reversed, 902 F.2d 293. 

239 

On rehearing en banc, the Court of Ap- 

peals, Gee, Circuit Judge, held that when 

Congress amended the Voting Rights Act 

to add a results test for dilution of minority 

voting strength in elections for “represent- 

atives,” it did not intend the amendment to 

apply to election of judges. 

Reversed. 

Clark, Chief Judge, filed a specially 

concurring opinion. 

Patrick E. Higginbotham, Circuit 

Judge, filed an opinion concurring in the 

judgment in which Politz, King and W. 

Eugene Davis, Circuit Judges, joined and 

of which Johnson and Wiener, Circuit 

Judges, concurred in part. 

Johnson, Circuit Judge, filed a dissent. 

1. Elections &12(1) 

Violation of Voting Rights Act is 

shown on a demonstration, by the totality 

of the circumstances, that state or political 

subdivision nomination and election pro- 

cesses for representatives of the people’s 

choice are not as open to minority voters as 

to others. Voting Rights Act of 1965, 

§ 2(b), as amended, 42 U.S.C.A. § 1973(b). 

2. Elections ¢=12(1) 

Provisions of the Fourteenth and Fif- 

teenth Amendments, enforceable by means 

of § 1983 actions, applied to judicial elec- 

tions to forbid intentional discrimination in 

any aspect of them. 42 U.S.C.A. § 1983; 

U.S.C.A. Const. Amends. 14, 15. 

3. Judges €=24 

Judiciary 

function whatever; 

one. 

serves no representative 

judge represents no 

Synopsis, Syllabi and Key Number Classification 

COPYRIGHT © 1990 by WEST PUBLISHING CO. 

The Synopsis, Syllabi and Key Number Classifi- 

cation constitute no part of the opinion of the court.  



  

240 

4. Judges <3 

Judicial election cannot be attacked 

along lines that the process results in unin- 

tentional dilution of the voting strength of 

minority members. Voting Rights Act of 

1965, § 2(b), as amended, 42 U.S.C.A. 

§ 1973(b). 

5. Elections 12(3) 

Absent the one-person, one-vote rule, 

there is no requirement that any individu- 

al’s vote weigh equally with that of anyone 

else. 

6. Elections &12(3) 

It is the assumption of substantial 

equality, which is achieved through guaran- 

tee of one-person, one-vote, that underlies 

the concept of minority vote dilution. Vot- 

ing Rights Act of 1965, § 2(b), as amended, 

42 U.S.C.A. § 1973(b). 

7. Elections &212(3) 

Assumption of substantial equality 

does not cbtain in judicial elections and, 

without that assumption, there exists no 

yardstick by which to measure either the 

correct magnitude of minority voting 

strength or the degree of minority vote 

dilution. Voting Rights Act of 1965, 

§ 2(b), as amended, 42 U.S.C.A. § 1973(b). 

8. Judges 24 

Judges do not represent people, and 

thus have no constituents. 

* Judges Williams and Garwood took no part in 
the Court's deliberations or decision of this ap- 

peal. When this case was orally argued before 
and considered by the court, Judge Reavley was 
in regular active service. He participated in 

both the oral argument and the en banc confer- 

ence. 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

9, Statutes 212.6 

Court must presume that Congress 

was aware of the uniform construction 

which courts had placed on term which 

Congress selected for use in amending stat- 

ute. 

10. Elections &=12(3) 

When Congress amended § 2 of the 

Voting Rights Act to impose a results test 

in elections for “representatives,” it did not 

intend to apply the results test to vote 

dilution claims in judicial contests, and the 

latter are regulated and controlled by state 

law, the Constitution, or other provisions of 

the Voting Rights Act; overruling Chisom 

v. Edwards, 839 F.2d 1056. Voting Rights 

Act of 1965, § 2(b), as amended, 42 U.S. 

C.A. § 1973(b). 

See publication Words and Phrases 
for other judicial constructions and 
definitions. 

11. Judges €=3 

State process for filling judicial offices 

need not be elective. U.S.C.A. Const. Art. 

4, 8 4. 

Appeal From the United States District 

Court for the Western District of Texas. 

Before CLARK, Chief Judge, GEE, 

POLITZ, KING, JOHNSON, JOLLY, 
HIGGINBOTHAM, DAVIS, JONES, 
SMITH, DUHE, WIENER, and 
BARKSDALE, Circuit Judges.* 

In United States v. American-Foreign 
Steamship Co., 363 U.S. 685, 80 S.Ct. 1336, 4 
L.Ed.2d 1491 (1960), the Supreme Court, in- 
terpreting 28 U.S.C. § 371(b), decided which 
senior judges are eligible to participate in an 
en banc court. Compare United States v. 
Cocke, 399 F.2d 433, 435 n. 4 (5th Cir.1968) 

As Judge Reavley reads the (en banc). 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

GEE, Circuit Judge: 

Today we must decide whether Congress, 

by amending Section 2 of the Voting 

Rights Act in 1982 to add a “results” test 

for dilution of minority voting strength, 

meant to subject the selection of state 

judges to the same test as that for repre- 

sentative political offices by incorporating 

language from the Supreme Court decision 

in White v. Regester.! For reasons to be 

given—and for the cardinal reason that 

judges need not be elected at all—we con- 

clude that it did not. 

In summary, these are that Congress 

was at great pains to phrase the new Sec- 

tion 2 in such language as to make clear 

that its results test applies to voting in 

elections of representatives only; that as 

of the amendment’s time judicial offices 

had never been viewed by any court as 

representative ones; that characterizing 

the functions of the judicial office as repre- 

sentative ones is factually false—public 

opinion being irrelevant to the judge’s role, 

and the judge’s task being, as often as not, 

to disregard or even to defy that opinion, 

rather than to represent or carry it out; 

that, because of the highly intrusive nature 

of federal regulation of the means by 

which states select their own officials, leg- 

islation doing so should not be pushed be- 

yond its clear language; and that, in view 

of these considerations, we should place 

such a construction on the 1982 enactment 

reluctantly and only if Congress has clearly 

mandated such a singular result. 

American-Foreign Steamship Co. opinion, he 

considers himself ineligible now to partic- 
ipate in the decision of this case, and he has 
not therefore done so. 

1..412°1.8, 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 
(1973). 

241 

We have carefully weighed the text and 

provenance of the statutory language 

against the opposing factors urged upon us 

as interpretive guides. Having done so, we 

conclude that the language of the 1982 

amendment is clear and that it extends the 

Congressional non-Constitutional “results” 

test for vote dilution claims no further than 

the legislative and executive branches, 

leaving the underlying, Constitutional “in- 

tent” test in place as to all three. Espe- 

cially telling, we conclude, is the circum- 

stance that in borrowing language from 

the Court’s White opinion Congress fo- 

cused upon its reference to electing “legis- 

lators,” broadening it so far, but only so 

far, as to electing “representatives,” a 

term inclusive of elective members of the 

executive branch as well as of the legisla- 

ture but not—as, say, state officials would 

have been—of members of the judiciary. 

That Congress did exactly as we have de- 

scribed is as undeniable as it is inexplicable 

on any basis other than that of a legislative 

purpose to include all elected legislative 

and executive state officials but to exclude 

elected judges. 

Finally, and bearing in mind the well-set- 

tled principle of statutory construction that 

the enacting Legislator is presumed to 

have been aware of the judicial construc- 

tion of existing law,2 we note that, as of 

the time of the addition of Section 2(b) and 

of the explicit results test to the Voting 

Rights Act, every federal court which had 

considered the question had concluded that 

state judges were not ‘representatives’ 

and did not fall within the definition of that 

2. See, e.g., Shapiro v. United States, 335 U.S. 

1, 16, 68 S.Ct. 1375,:1383, 92 L.Ed. 1787 

(1948); United States v. PATCO, 653 F.2d 
1134, 1138 (7th Cir.), cert. denied, 454 U.S. 
1083, 102 S.Ct. 639, 70 L.Ed.2d 617 (1981).  



  

242 

term. Had Congress, then, meant to ex- 

clude votes in judicial elections from the 

ambit of its new results test, it could 

scarcely have done so more plainly than by 

adopting the term “representative” to de- 

scribe that ambit. 

Facts and Procedural History 

The underlying facts of this appeal are 

carefully and correctly set out in the panel 

opinion, 902 F.2d 293 (5th Cir.1990); we 

recapitulate them here no further than is 

necessary to an understanding of what we 

write today. 

Plaintiffs attacked the Texas laws pro- 

viding for county-wide, at-large election of 

judges of the trial court of general jurisdic- 

tion, asserting that the imposition of a sin- 

gle-member system was necessary to pre- 

vent dilution of black and Hispanic voting 

strength. In a bench trial, the federal 

court rejected their constitutional argu- 

ments grounded in the Fourteenth and Fif- 

teenth Amendments, finding a failure to 

prove the requisite discriminatory intent 

for relief under those provisions. The 

court determined, however, that the Texas 

law produced an unintended dilution of 

minority voting strength, a circumstance 

sufficient to call for relief under the Voting 

Rights Act, as amended in 1982 to incorpo- 

rate a “results” test dispensing with the 

necessity of proof of discriminatory intent. 

In consequence, and after pausing to allow 

for possible remedial action by the state, 

the court enjoined further use of the at- 

large system, confected and imposed a sys- 

tem of single-member elections, and direct- 

ed that these be held last Spring. 

3. It is the settled law of our Circuit that one 
panel of the Court does not overrule another. 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

On appeal, we stayed the court’s order, 
expedited the appeal, held a panel hearing 

on April 30, and handed down an opinion on 

May 11. Four days later, pursuant to a 

majority vote of active judges, we ordered 
rehearing of the appeal en banc; and we 

now render our opinion. 

Analysis 

The Panel Opinion 

At the time of its decision, our panel was 

constrained by an earlier decision of the 

Circuit holding that Section 2 of the Act 

applied to elections held to fill positions on 
the Louisiana Supreme Court, a seven- 

member body. Chisom v. Edwards, 839 

F.2d 1056 (5th Cir.1988). Constraint was 

superfluous, however; for the panel em- 
braced and agreed with the holding and 

reasoning of Chisom applying the Act to 

judicial elections. It went on, however, to 
conclude that although in its view judges 

were indeed ‘representatives of the peo- 
ple,” and although as their representatives 

the judges’ elections were controlled by 

Section 2(b) of the Act, the elections of 
trial judges were not subject to voter- 

strength dilution concerns because their of- 
fices are single-member ones; and there is 

no such thing as a “share” of a single- 
member office. LULAC v. Clements, 902 

F.2d 293, 305 (5th Cir.1990). See Butts v. 

City of New York, 779 F.2d 141 (2d Cir. 

1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 

3335, 92 L.Ed.2d 740 (1986) (offices of may- 

or, council president, comptroller are sin- 

gle-member ones) and United States wv. 

Dallas County, Ala., 850 F.2d 1433 (11th 

Cir.1988) (county probate judge). A vigor- 

ous dissent by Judge Johnson, author of 

the panel opinion in Chisom, disputed the 

Ryals v. Estelle, 661 F.2d 904 (5th Cir.1981). 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

panel majority's characterization of judges 

from multi-judge districts as holders of sin- 

gle-member offices. We need not resolve 

this disagreement within the panel, how- 

ever, as we do not reach the issue. 

Statutory Background 

Originally enacted in 1965 as an anti-test, 

anti-device provision to relieve blacks of 

state-law strictures imposed upon their Fif- 

teenth Amendment voting rights, Section 2 

of the Voting Rights Act was construed by 

the Supreme Court in City of Mobile wv. 

Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 

L.Ed.2d 47 (1980), as adding nothing to the 

Fourteenth and Fifteenth Amendment 

claims there made and as requiring, for its 

enforcement, proof of racially-discriminato- 

ry intent. At the time of Bolden, Section 2 

read: 

No voting qualification or prerequisite to 

voting, or standard, practice, or proce- 

dure shall be imposed or applied by any 

State or political subdivision to deny or 

abridge the right of any citizen of the 

United States to vote on account of race 

or color, or in contravention of the guar- 

antees set forth in section 1973b(f)(2) of 

this title. 

Congress reacted to Bolden by amending 

Section 2 to add to the statute a limited 

“results” test, to be applied and adminis- 

tered “as provided in subsection (b) of this 

section.” As amended, Section 2 was cast 

in two subsections: 

(a) No voting qualification or prerequi- 

site to voting or standard, practice, or 

procedure shall be imposed or applied 

by any State or political subdivision in 

a manner which results in a denial or 

abridgement of the right of any citizen 

of the United States to vote on account 

of race or color, or in contravention of 

243 

the guarantees set forth in section 

1973b(f)(2) of this title, as provided in 

subsection (b) of this section. 

(b) A violation of subsection (a) of this 

section is established if, based on the 

totality of circumstances, it is shown 

that the political processes leading to 

nomination or election in the State or 

political subdivision are not equally 

open to participation by members of a 

class of citizens protected by subsec- 

tion (a) of this section in that its mem- 

bers have less opportunity than other 

members of the electorate to partic- 

ipate in the political process and to 

elect representatives of their choice. 

The extent to which members of a 

protected class have been elected to 

office in the State or political subdivi- 

sion is one circumstance which may be 

considered: Provided, That nothing in 

this section establishes a right to have 

members of a protected class elected in 

numbers equal to their proportion in 

the population. 

Earlier, in the course of deciding White, 

a 1973 voting rights case invoking constitu- 

tional grounds, the Court had described the 

required standard of proof in felicitous 

terms: 

The plaintiffs’ burden is to produce evi- 

dence to support findings that the politi- 

cal processes leading to nomination and 

election were not equally open to partic- 

ipation by the group in question—that 

its members had less opportunity than 

did other residents in the district to 

participate tn the political processes 

and to elect legislators of their choice. 

412 U.S. at 766, 93 S.Ct. at 2339 (emphasis 

added). 

Casting about for appropriate language in 

which to couch its new subsection, and  



  

244 

having inserted the reference to results in 

old Section 2, Congress settled upon the 

italicized portion of Justice White’s opinion 

quoted above, adopting it with only one 

significant alteration. 

[1] New subsection (b), then, is pat- 

terned on the White court’s language and 

provides with great specificity how viola- 

tions of the newly incorporated results test 

must be established: a violation is shown 

on a demonstration, by the totality of the 

circumstances, that state (or political subdi- 

vision) nomination and election processes 

for representatives of the people’s choice 

are not as open to minority voters as to 

others. The precise language of the sec- 

tion is significant; a violation is shown, it 

declares, if it is established that members 

of the protected classes 

have less opportunity than other mem- 

bers of the electorate to participate in 

the political process and to elect repre- 

sentatives of their choice. 

[2] Both the broad and general opportu- 

nity to participate in the political process 

and the specific one to elect representatives 

are thus treated in the new section.’ As 

for the former, protecting it appears to 

involve all of the primal anti-test, anti-de- 

vice concerns and prohibitions of original 

Section 2; and its provisions may well ex- 

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

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

6. That scope is not at issue today, the trial 
court having found an absence of discrimi- 
natory intent; and we do not decide it. We 
point out, however, that there can be no 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

tend to all elections whatever, as did they.® 

These broader considerations center on the 

voter and on his freedom to engage fully 

and freely in the political process, untram- 

meled by such devices as literacy tests and 

poll-taxes. Where judges are selected by 

means of the ballot, these safeguards may 

apply as in any other election, a matter not 
presented for decision today. The second 

consideration—opportunity to elect repre- 

sentatives of one’s choice—is also couched 

in the language borrowed from White v. 

Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 

2339, 37 L.Ed.2d 314 (1973); and, as we 

have noted, the Congress was at some 

pains to adapt and broaden the Court's 

phrases so as to convey its precise mean- 

ing. Before pursuing this aspect of our 

inquiry further, however, we turn aside to 

consider briefly the nature of the judicial 

office and two other closely related topics: 

judicial selection and the state of authority 

on judges’ status as representatives. 

The Judicial Office 

Senators and members of the House of 

Representatives hold clearly political of- 

fices. Today, both are directly elected by 

the people; and it is their function as repre- 

sentatives to synthesize the opinions of 

their constituents and reflect them in the 

debate and deliberation of public issues.’ 

doubt whatever that the provisions of the 
Fourteenth and Fifteenth Amendments, en- 
forceable by means of Section 1983 actions, 
apply to judicial elections to forbid intention- 
al discrimination in any aspect of them. 
City of Mobile v. Bolden, 446 U.S. 55, 100 
S.Ct. 1490, 64 L.Ed.2d 47 (1980); Voter Infor- 
mation Project v. City of Baton Rouge, 612 
F.2d 208 (5th Cir.1980). 

7. James Madison, discussing the unique re- 
lationship of the representative to his con- 
stituents, for example, referred to a rela- 
tionship of “intimate sympathy” between 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

The executive branch of the government, 

headed by our highest officer elected at 

large in the nation, is also expected to 

bring the views and opinions which he of- 

fered the electorate in seeking the Presi- 

dency to bear on the job of running the 

federal machinery. 

[3] By contrast, the judiciary serves no 

representative function whatever: the 

judge represents no one.® As Professor 

Eugene Hickok has recently observed, in 

terms upon which we cannot improve: 

The judiciary occupies a unique position 

in our system of separation of powers, 

and that is why the job of a judge differs 

in a fundamental way from that of a 

legislator or executive. The purpose of 

the judiciary is not to reflect public opin- 

ion in its deliberations or to satisfy public 

opinion with its decisions. Rather, it is 

to ensure that the ordinary laws do not 

run contrary to the more fundamental 

law of the Constitution, to resolve dis- 

putes and controversies surrounding the 

law, and to resolve disputes among con- 

testing parties over the meaning of the 

law and the Constitution. If a member 

the elected and his electors, and argued 

that a legislator should feel an “immediate 
dependence” upon the will of his constitu- 
ents. Frequent elections, according to Ma- 
dison, are the only way to ensure this sort 
of relationship. Only by requiring legisla- 
tors to return periodically to their constitu- 
ents to seek their ongoing support and 
input, can the communication between the 

voters and their representatives that is es- 
sential to the maintenance of democratic 
government take place. Congress is a 
“popular” institution; it is, therefore inher- 

ently political. 
Hickok, Judicial Selection: 
Roots of Advice and Consent in Judicial Se- 
lection: Merit, Ideology, and Politics 4 (Na- 

tional Legal Center for the Public Interest 
1990). 

The Political ~ 

245 

of congress serves to make the law and a 

president to enforce it, the judge serves 

to understand it and interpret it. In this 

process, it is quite possible for a judge to 

render a decision which is directly at 
odds with the majority sentiment of the 

citizens at any particular time. A judge 
might find, for example, a very popular 

law to be unconstitutional. Indeed, it 

can be argued that the quality most 

needed in a judge is the ability to with- 

stand the pressures of public opinion in 
order to ensure the primacy of the rule 

of law over the fluctuating politics of the 

hour. 

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

Thus the scholar, and with one voice the 

case authority of the time agreed. In 1982, 
as of the time of Congress's adoption of 

the Court's language from White, at least 

fifteen published opinions by federal 

courts—opinions which we list in the mar- 

gin—had held or observed that the judicial 

office is not a representative one, most 

often in the context of deciding whether 

the one-man, one-vote rubric applied to ju- 

dicial elections. Not one had held the con- 

trary. 

8. That this is the case is strongly implied in 
the Constitution, which provides for an ap- 
pointive federal judiciary and was adopted 
by thirteen states, none of which had an 
elective one. Yet the Framers believed they 
were confecting a federal republic, and Arti- 
cle 4, Section 4, of the Constitution guaran- 

tees “to every State in this Union a Republi- 
can Form of Government. ...” But if judges 
hold representative offices, or represent any 
constituency, appointing them is scarcely 
consistent with a republican system, defined 

by the Third Edition of Webster's Una- 
bridged as “[A] government in which su- 
preme power resides in a body of citizens 
entitled to vote and is exercised by elected 
officers and representatives. ..."” 

9. Sagan v. Commonwealth of Pennsylvania, 
542 F.Supp. 880 (W.D.Pa.1982), appeal dis-  



  

246 

Typical of these is the opinion in Wells v. 

Edwards, a decision by a three-judge dis- 
trict court from our own circuit which was 

affirmed on appeal by the Supreme Court.1° 

There, after reviewing various authorities, 

the district court expressed the entire ratio- 

nale of its view as follows: 

“Judges do not represent people, they 

serve people.” Thus, the rationale be- 
hind the one-man, one-vote principle, 

which evolved out of efforts to preserve 

a truly representative form of govern- 

ment, is simply not relevant to the make- 

up of the judiciary. 

“The State judiciary, unlike the legisla- 

ture, is not the organ responsible for 

achieving representative government.” 

missed, 714 F.2d 124 (3rd Cir.1983) (cross 
filing permitted by candidates for judicial 
office, prohibited for legislative and execu- 

tive candidates) 
Concerned Citizens of Southern Ohio, Inc. 
v. Pine Creek Conservancy Dist, 473 
F.Supp. 334 (S.D.Ohio 1977) 
The Ripon Society, Inc. v. National Republi- 
can: Party, 525 F.2d 5367 (D.C.Cir.1973), 
cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 
1148, 47 L.Ed.2d 341 (1976) 
Fahey v. Darigan, 405 F.Supp. 1386 (D.C.R. 
1.1975) 

Gilday v. Board of Elections of Hamilton 
County, Ohio, 472 F.2d 214 (6th Cir.1972) 
Wells v. Edwards, 347 F.Supp. 453 (M.D. 
La.1972), affd mem. 409 U.S. 1095, 93 

S.Ct. 904, 34 L.Ed.2d 679 (1973) 

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

Holshouser v. Scott, 335 F.Supp. 928 (M.D. 
N.C.1971), affd mem., 409 U.S. 807, 93 
S.Ct. 43, 34 L.Ed.2d 68 (1972) 

Sullivan v. Alabama State Bar, 295 F.Supp. 
1216 (M.D.Ala.), aff'd per curiam, 394 U.S. 
812, 89 S.Ct. 1486, 22 L.Ed.2d 749 (1969) 
(involving Board of Commissioners of Ala- 
bama State Bar) 
Irish v. Democratic-Farmer-Labor Party of 
Minnesota, 287 F.Supp. 794 (D.C.Minn.), 
affd, 399 F.2d 119 (8th Cir.1968) 

Buchanan v. Rhodes, 249 F.Supp. 860 
(N.D.Ohio 1966), appeal dismissed, 385 
U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3 (1966), and 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

347 F.Supp., at 455-56 (quoting from Bu- 

chanan v. Rhodes, 249 F.Supp. 860 and 

New York State Association of Trial Law- 

yers v. Rockefeller, 267 F.Supp. 148). It is 

impossible, given the single point at issue 

and the simple reasoning stated, to believe 

that the majority of the Supreme Court, in 

affirming Wells, did not concur in that 

reasoning. If there were doubt, however, 

it would be laid to rest by the terms of the 

dissent, which attacks the district court 

opinion in stern, egalitarian terms for hav- 

ing, like other opinions cited by it, held 

“that the one-person, one-vote principle 

does not apply to the judiciary.” 409 U.S. 

1095, 1096 n. 2, 93 S.Ct. 904, 905 n. 2. Nor 

is it likely, we think, that the Supreme 

vacated, 400 F.2d 882 (6th Cir.1968), cert. 
denied, 393 U.S. 839, 89 S.Ct. 118, 21 
L.Ed.2d 110 (1968) 
N.Y. State Assn. of Trial Lawyers v. Rocke- 
feller, 267 F.Supp. 148 (S.D.N.Y.1967) 
Kail v. Rockefeller, 275 F.Supp. 937 (E.D.N. 
Y.1967) 
Romiti v. Kerner, 256 F.Supp. 35 (N.D.IIL 
1966) 
Stokes v. Fortson, 234 F.Supp. 575 (N.D.Ga. 
1964) 
Since 1982 a few courts have held that the 

use of the term “representatives” in Section 2 
does not necessarily exclude judges. See 
Southern Christian Leadership Conference of 
Alabama v. Siegelman, 714 F.Supp. 511 
(M.D.Ala.1989); Clark v. Edwards, 1725 
F.Supp. 285 (M.D.La.1988); Mallory v. Ey- 
rich, 839 F.2d 275 (6th Cir.1988); Martin v. 
Allain, 658 F.Supp. 1183 (S.D.Miss.1987). 
(All recognizing that the “one-man, one-vote” 
principle does not apply to judicial elections 
and that, unlike legislators, judges do not 
“represent” those who elect them, but, never- 
theless, refusing to apply its established 
meaning to Congress’ use of the term “repre- 
sentatives” in Section 2 of the Voting Rights 
Act). 

10. 347 F.Supp. 453 (M.D.La.1972), affd 
mem., 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 
679 (1973) (Justice White, joined by Justices 
Douglas and Marshall, dissenting). 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

Court would hold, as it necessarily did in 

affirming Wells v. Edwards, that although 

for purposes of the Equal Protection 

Clause of the Fourteenth Amendment 

judges “do not represent people,” all the 

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

Voting Rights Act, judges are “representa- 

tives of [the people’s] choice.” Both must 

be true, or neither one.!l 

[4,5] Wells is not only instructive as to 

the meaning of “representatives” and thus 

as to the scope of Section 2, it is dispositive 

of the precise issue of the scope of Section 

2’s applicability raised in this case. The 

Wells holding—that the one-person, one- 

vote rule does not apply to the judiciary— 

leads inexorably to the conclusion that judi- 

cial elections cannot be attacked along lines 

that their processes result in unintentional 

dilution of the voting strength of minority 

members. Absent the one-person, one-vote 

rule—that the vote of each individual voter 

must be roughly equal in weight to the 

vote of every other individual voter, re- 

gardless of race, religion, age, sex, or even 

the truly subjective and uniquely individual 

choice of where to reside—there is no re- 

quirement that any individual's vote weigh 

equally with that of anyone else. This 

being so, and no such right existing, we 

can fashion no remedy to redress the non- 

existent wrong complained of here. 

11. It is interesting to note that the dissent 
from the panel opinion, in the very course of 
complaining of the majority's refusal to ap- 
ply Section 2 to trial judges, candidly recog- 
nizes that judges, unlike legislative and exec- 
utive officers, “represent” no one: 

When weighing a state’s claim that it has a 
compelling interest in retaining the exist- 
ing at-large system, courts should keep in 
mind the common sense notion that the 
role of judges differs from that of legisla- 
tive and executive officials. Since it is not 
the role of judges to “represent” their con- 
stituents an examination of the “respon- 

247 

The notion of individual vote dilution, 

first developed by the Supreme Court in 

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 

1362, 12 L.Ed.2d 506 (1964), was the foun- 

dation for the concept of minority vote 

dilution to be later elaborated in Whitcomb 

v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 

L.Ed.2d 363 (1971) !%, White v. Regester, 

supra, and Zimmer v. McKeithen, 485 

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

dilution was remedied by the Court 

through the concept of one-person, one- 

vote—the guarantee of substantial equality 

among individual voters. With that guar- 

antee in mind, remedial schemes to combat 

minority vote dilution were devised on a 

case by case basis. 

[6,7] Almost twenty years ago, we ar- 

ticulated the conceptual link between indi- 

vidual vote dilution and minority vote dilu- 

tion, making clear the latter’s dependence 

on the former: 

Inherent in the concept of fair represen- 

tation are two propositions: first, that in 

apportionment schemes, one man’s vote 

should equal another man’s vote as near- 

ly as practicable; and second, that as- 

suming substantial equality, the 

scheme must not operate to minimize or 

cancel out the voting strength of racial 

elements of the voting population. 

siveness” of the elected official to minority 
concerns is clearly irrelevant. 

902 F.2d at 317 n..17. 

12. In Whitcomb v. Chavis the Supreme Court 
directly considered a racial dilution chal- 
lenge and rejected the claim that the Indiana 
legislative reapportionment plan operated to 
minimize or cancel out minority voting 
strength. The Court held that the mere fact 
that ghetto residents were not proportionate- 
ly represented did not prove a constitutional 
violation unless they were denied equal ac- 
cess to the political process.  



  

248 

Zimmer, 485 F.2d at 1303 (emphasis add- 

ed). 

For it is the assumption of substantial 

equality (achieved through the guarantee 

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

concept of minority vote dilution. This as- 

sumption, the Court held in Wells, does not 

obtain in judicial elections; and without 

that assumption there exists no yardstick 

by which to measure either the “correct” 

magnitude of minority voting strength or 

the degree of minority vote dilution. Thus, 

on a conceptual level, and to paraphrase 

Justice Harlan, we are asked to undertake 

the ineffable task of equalizing that which 

we cannot measure. Whitcomb, 403 U.S. 

at 169, 91 S.Ct. at 1883 (Harlan, J., sepa- 

rate opinion). 

We are therefore unable to take the cru- 

cial step from individual vote dilution to 

minority vote dilution in this case, not only 

because the holding in Wells forbids us to 

assume the existence of “substantial equal- 

ity,” but because it compels us to recognize 

that no such equality need exist in the 

arena of judicial elections. The bridge be- 

tween the two concepts, fashioned by the 

Court in Reynolds v. Sims and applied 

there to state legislatures, is of limited 

length and, as the Court made clear by 

affirming Wells v. Edwards, does not ex- 

tend to the judiciary. 

[8] Finally, as the district court stated 

in Wells: 

The primary purpose of one-man, one- 

vote apportionment is to make sure that 

each official member of an elected body 

speaks for approximately the same num- 

ber of constituents. 

Wells, 347 F.Supp. at 455. 

We reiterate that judges do not represent 

people and, thus, have no constituents. 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

Judges speak the voice of the law. In 
doing so they speak for and to the entire 
community, never for segments of it and 
still less for particular individuals. To de- 
scribe the judge’s office merely as “not a 

representative one” is a gross understate- 
ment; in truth, it is rather the precise 

antithesis of such an office. Just insofar 
as a judge does represent anyone, he is not 
a judge but a partisan. 

New Section 2(b) 

[9,10] So the land lay when Congress 

enacted Section 2(b) in 1982, choosing to 

replace the term “legislator” in the White 
phraseology with the term ‘representa- 
tive”’—a term which is employed only at 
this spot and appears nowhere else in the 
entire Voting Rights Act. By the settled 
canon of construction, we must presume 
that Congress was aware of the uniform 

construction which had been placed by the 
courts on the term that it selected, a con- 

struction by which the judicial office was 
not deemed a “representative” one. Good- 
year Atomic Corp. v. Miller, 486 U.S. 174, 
108 S.Ct. 1704, 100 L.Ed.2d 158 (1988); 
Sutton v. United States, 819 F.2d 1289 
(5th Cir.1987). Against this background, 
then, the Congress deliberately picked a 
term of art for use in amending Section 2 
that up to that time had been universally 

held, and which it knew had been universal- 

ly held by every federal court that had 
considered it as of that date, neither to 

include judges nor to comprise judicial of- 
fices. In view of these circumstances, we 

find it all but impossible to avoid the con- 
clusion that Congress intended to apply its 
newly imposed results test to elections for 
representative, political offices but not to 
vote dilution claims in judicial contests, 
leaving the latter to be regulated and con- 
trolled by state law, by the Constitution, or 
by other provisions of the Voting Rights 

   



  

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 249 

Act’? Given the mutual exclusiveness of 
the two terms, to suggest that Congress 
chose “representatives” with the intent of 
including judges is roughly on a par with 

suggesting that the term night may, in a 
given circumstance, properly be read to 

include day. 

We are further persuaded by the knowl- 

edge that in amending Section 2 Congress 
was well aware of the genesis of the con- 
cept of minority vote dilution. The legisla- 
tive history makes clear that Congress 
knew that “[t]he principle that the right to 
vote is denied or abridged by dilution of 
voting strength derives from the one-per- 

son, one-vote reapportionment case of 

Reynolds v. Sims.” S.Rep. No. 417, 97th 

Cong., 2d Sess., reprinted in 1982 U.S. 
Code Cong. & Admin.News at 177, 196. 
Given its awareness of the Wells v. Ed- 

wards holding—that the one-person, one- 
vote rule does not apply to the judiciary— 

we must conclude that Congress, aware of 
the combined effect of Reynolds and 

Wells, limited the scope of amended Section 
2 so as to rule out the judicial branch, an 

area within which the issue of the viability 
of minority vote dilution claims had been 

well settled. 

Countervailing Arguments 

Thus we find on one side of the argu- 

ment whether Section 2(b)’s results test for 

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

In view of this, and while it is certainly 

possible to imagine Congress's taking the po- 

  

elections applies to judicial ones the Con- 

gress’s carefully chosen term of art—‘“rep- 

resentatives”’—deliberately selected by 

Congress and placed in the section itself, 

with a settled legal meaning excluding 

judges. On the other side are ranged con- 

tentions of a more attenuated and deriva- 

tive nature, which we now consider briefly. 

First we are told that the definition of 

“voting,” included in the original act as 

Section 14(c)(1) and now codified as 42 

U.S.C. § 19731 (c)(1), refers to “candidates 

for public or party office” and that, since 

judicial hopefuls are included within the 

generality of such a reference to candi- 

dates, the results test which applies to all 

others must be applied to them as well. 

The specific controls the general here, how- 

ever, as in any other instance of statutory 

construction; and we see little force in the 

claim that an inference from a general 

term buried in a definitional section far 

from Section 2 should control the specific 

and supervening language inserted by Con- 

gress in the section itself. Nor is there 

any necessary conflict between the two 

provisions: as we have noted, it is only the 

application of the results test portion of 

amended Section 2 to vote dilution claims in 

judicial elections that is at issue today. 

Other portions of the section may well ap- 

ply to such elections, as may the results 

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



  

250 

test to claims other than those of vote 

dilution, along with the indubitably applica- 

ble Constitutional prohibitions against any 

intentional act of discrimination in any elec- 

toral aspect. 

The same answer also refutes the next 

argument: that because, as was held in 

Haith v. Martin, 618 F.Supp. 410 (E.D.N.C. 

1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 

3268, 91 L.Ed.2d 559 (1986), Section 5 of 

the Act applies to state judicial elections, 

Section 2 must apply as well. As we have 

explained, portions of Section 2 may well 

apply—except for the results test intro- 

duced in response to the holding in Bolden 

to govern vote dilution in the election of 

“representatives,” which by its own terms 

does not. 

Next we are told, in yet another general 

argument similar to those we have just 

rejected, that we must apply the dilution 

results test to judicial elections because the 

1982 amendments to Section 2 were intend- 

ed to expand, rather than to restrict, the 

section’s coverage. Doubtless they were 

generally so intended; doubtless they did 

so; but the presence of a general intent to 

expand coverage requires neither an expan- 

sion at all points nor the maximum imagin- 

able expansion at any and is not even nec- 

essarily at odds with a specific intent to 

restrict coverage at one or another of 

them. Section 2 was greatly expanded, 

expanded to add a results test to the intent 

14. Thus, as Justice Scalia has very recently 
suggested, we “appl[y] to the text of the stat- 
ute the standard tools of legal reasoning, 
instead of scouring the legislative history for 
some scrap that is on point....” Begier v. 

*LRS., — US. —, ——, 110 S.Ct. 2258, 

2269, 110 L.Ed.2d 46, 63 (1990) (concurrence 
in judgment). 

And these small matters are indeed scour- 
ings. The panel opinion avers, 902 F.2d at 
299, and we do not doubt, that the reference 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

test of the Fourteenth and Fifteenth 

Amendments—expanded in most respects, 

but not in all. 

Finally, in a scatter of birdshot conten- 

tions, counsel point to the broad construc- 

tion that the Attorney General has histori- 

cally accorded the Voting Rights Act, to 

the absence in the Act’s legislative history 

of any explicit statement that judicial elec- 

tions are mot covered, to the presence in 

that history of references to statistics on 

minority performance in various elections 

(including judicial ones), and to a single 

reference to ‘judicial districts” in a cau- 

tionary parade of horribles to be found in a 

subcommittee report hostile to the pro- 

posed 1982 amendments. None of these 

seems to us to weigh very heavily in the 

scales against the specific terminology of 

Section 2 itself.’ In the words of Justice 

Frankfurter, writing for a unanimous court 

in Greenwood v. United States, it appears 

to us that “this is a case for applying the 

canon of construction of the wag who said, 

when the legislative history is doubtful, go 

to the statute.” 350 U.S. 366, 374, 76 S.Ct. 

410, 415, 100 L.Ed. 412 (1956). 

It is, and we do so. 

Conclusion 

In no area should federal courts tread 

more cautiously than where it is contended 

that Congress has imposed incremental 

to “judicial districts” is the sole reference to 
the judiciary in all the legislative history of 
the 1982 amendments of the Act. It will be 
noted that even this reference is one to judi- 
cial districts, not to judicial candidates; and 
in our Circuit many officials such as sheriffs, 
highway commissioners, district attorneys 
and clerks of court, who are “representa- 
tives” and not judges, are elected from judi- 
cial districts, e.g., Miss.Code Ann. (1972) 65- 
1-3. 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

Federal power on the States; and the near- 

er to the core of traditional state authority 

and concern we are asked to venture, the 

more warily we should tread. The point is 

elegantly made by the panel opinion in this 

very case: 

Few would quarrel with the assertion 

that Section 2(b) as interpreted has 

worked a fundamental change in the Act, 

highly intrusive to the states. We have 

insisted in other contexts that Congress 

clearly state its intent to supplant tradi- 
tional state prerogatives. Judicial insis- 

tence upon clear statement is an impor- 

tant interpretative tool vindicating con- 

cern for separation of powers and feder- 

alism. See Atascadero State Hospital v. 

Scanlon, 473 U.S. 234, 105 S.Ct. 3142 [87 

L.Ed.2d 171] (1985); Pennhurst State 

School and Hospital v. Halderman, 465 

U.S. 89, 104 S.Ct. 900 [79 L.Ed.2d 67] 

(1984) (Pennhurst II). This insistence 

upon an ‘unequivocal expression of con- 

gressional intent,” Pemnhurst II, 465 

U.S. at 99, 104 S.Ct. at 907, is based upon 

the fundamental nature of the interests 

at stake. “The ‘constitutionally mandat- 

ed balance of power’ between the states 

and the Federal Government was 

adopted by the Framers to ensure the 

protection of ‘our fundamental liber- 

ties.” Atascadero, 105 S.Ct. at 3147 

(quoting Garcia v. San Antonio Metro- 

politan Transit Authority, 469 U.S. 528, 

15. Both the dissent and, more obliquely, the 
special concurrence take our writing to task 
as resting on the narrow foundation of one 
word. In main, this is true; for the substitu- 
tion of the term “representative” is all but 
the sole clue to be found—in either the statu- 
tory text or the legislative history—to guide 
the interpreter in unraveling the legislative 
intent behind this enigmatic statute. Dim or 
no, it is the only light available to guide our 
footsteps, and we have followed it as best we 
could. 

  

251 

572, 105 S.Ct. 1005, 1028 [83 L.Ed.2d 
1016] (1985) (Powell, J., dissenting)). 

LULAC, 902 F.2d at 301. 

It is hard to envision any area lying 

closer to the core of state concerns than 
the process by which it selects its own 
officers and functionaries. Any federal 

trenching here strikes at federalism’s jug- 
ular; and such a radical federal trenching 
as is contended for today should therefore 
demand a very clear statement indeed. In- 

stead, as regards the issue in this case, our 

investigation reveals an all but total ab- 

sence of relevant legislative history and a 
statutory text that unambiguously ex- 

cludes elections of non-representative state 
officers from Section 2’s highly intrusive 

results test. If this was not the intended 

effect of Congress’s substitution of repre- 

sentatives for legislators in Justice White's 
language, no other suggests itself; and we 

must reject any notion that Congress went 
to all the trouble of selecting that language 

and carefully modifying it, just so far and 
no further, randomly and with nothing par- 

ticular in mind.! It is never proper for us 

to extend a statute’s force by construction 

into areas where Congress has not seen fit 
or has been unable to agree to go, and 

never less proper than in such supremely 

sensitive territory as this. 

[11] Judicial offices and judicial selec- 
tion processes are sui generis in our na- 

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

  

 



  

252 

tion’s political system; they determine the 

referees in our majoritarian political game. 

These offices are not ‘representative’ 

ones, and their occupants are not repre- 

sentatives. Indeed, the state processes for 

filling them need not even be elective, as 

those for all representative offices presum- 

ably must be. See U.S. Const., Art. 4, Sec. 

4. In 1982, when Congress determined to 

expand Section 2 of the Act to incorporate 

a results test for vote dilution, it stopped 

short of imposing such a test for judicial 

offices on the States by limiting it to their 

election of “representatives.” Should Con- 

gress seek to install such a test for judicial 

elections, it must say so plainly. Instead, it 

has thus far plainly said the contrary. 

Chisom v. Edwards, 839 F.2d 1056 (5th 

Cir.1988) is overruled. 

REVERSED. 

CLARK, Chief Judge, concurring 

specially: 

This brief soliloquy is necessarily said, in 

my respectful view, because every other 

opinion goes farther than the Voting 

Rights Act intends. My brothers Gee and 

Higginbotham are at odds about the way 

the court should take to reach the same 

result. While their disagreement centers 

on the representative nature of the judicial 

office, the essence of their analyses of the 

impact of racial vote dilution in this judicial 

election process based on the nature of the 

office is similar—so similar that, if their 

opinions were expressly limited to the facts 

of the present case, I agree with both. 

There is no disagreement that Section 2 

of the Voting Rights Act, before its amend- 

ment, forbade any practice or procedure 

that abridged the right to vote because of 

race or color. All also agree that the legis- 

lative intent of the amendment was only to 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

broaden the test for vote dilution from 

“intent” to “result.” 

The elements of Judge Gee’s analysis are 

that, since section 2(b) defines vote dilution 

in terms of representatives, no vote dilution 

claim can be made in any election of a 

judicial officer because a judge can never 

be a representative—a conclusion he finds 

confirmed by the Supreme Court’s refusal 

in Wells v. Edwards to apply one-man, 

one-vote standards to judicial election dis- 

tricts. 

Judge Higginbotham rejects this analy- 

sis. He would base reversal on the prem- 

ise that none of several elected trial judges 

who all function singularly in their work 

can be subject to the single-member redis- 

tricting claim made here. My concern is 

that the court’s opinion, as now written, 

puts vote dilution attacks on (1) judicial 

elections which cannot be resolved by ex- 

amining the nature of the office, and (2) 

“issue” elections (such as referenda on con- 

stitutional amendments and bond issue 

elections) beyond the reach of amended sec- 

tion 2. 

Judge Gee starts with the observation 

that the words of section 2 expressly limit 

vote dilution to elections of representatives. 

I can readily agree section 2 does not apply 

to the elections challenged here. It in- 

volves only the election of persons and 

voter impact turns entirely on the nature of 

the judicial office. This brings section 2(b) 

into play. The inherent nature of the judi- 

cial function and, indeed, the constitutional 

limits of due process require that every 

judge be impartial between litigants and 

neutral as to claims presented. In the dis- 

charge of official duties, no judge can ever 

“represent” the electors in the jurisdiction 

served by the court. A vote for a judge 

differs from a vote for other types of offi- 

   



  

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 253 

cers. Whether the choice be for council 

man, sheriff or governor, and whether it be 

based on whim or party or nonpartisan 

analysis of the individual candidate, votes 

for these types of officials are cast for 

those who will best express the wishes and 

views of their constituents. This cannot be 

so when a voter picks a judge. Legislators 

and executives are expected to represent. 

Voters must know judges cannot. The 

same principles control when a state pro- 

vides for election rather than appointment 

of its judiciary. The choice seeks to assure 

the public that the judicial function will be 

kept accountable to the common sense of 

the electorate. It is expected that candi- 

dates who lack training or a reputation for 

honesty or sound intellect will not be elect- 

ed. In like manner, those who are indolent, 

will not decide cases or decide erratically 

will not be re-elected. Overarching any 

considerations of voter motivation is the 

due process neutrality required in the con- 

duct of the office. It does not permit the 

judge’s responsiveness to the electorate’s 

concept of common sense to become repre- 

sentation of the electorate. The State of 

Texas has a strong interest, and, indeed, a 

fundamental right to choose to have these 

judges elected in the manner provided here. 

Its choice does not violate amended section 

2. 

The difficulty I have with Judge Gee's 

analysis is that it has no limit. There are 

many types of elections which involve is- 

sues, not candidates, which surely ought to 

be subject to the vote dilution stricture of 

section 2 despite the absence of any ques- 

tion of representation. But merely noting 

the applicability to “issue” elections would 

not adequately define the reach of section 

2. It is imperative, in my view, that a 

bright circle be drawn around judicial elec- 

tions as well. Judge Gee’s reasoning 

  

would expressly deny section 2(a) coverage 

to judicial elections in situations beyond 

today’s facts, as he makes clear by overrul- 

ing Chisom v. Edwards. Section 2(a) is an 

integral part of a remedial statute. It de- 

serves to be interpreted so as to prevent 

racial vote abridgment even when it occurs 

in a judicial election. The phrase ‘“‘as pro- 

vided in subsection (b) of this section” 

which appears at the end of subsection (a) 

should be read as giving an example of 

proscribed vote dilution. It does not pro- 

vide that section 2(b) establishes the only 

way the section can be violated. 

It is clear to me that when a state contin- 

ues to apply a voting procedure in a man- 

ner which now results in an abridgment of 

the right of a citizen to vote on account of 

race, that procedure is still condemned by 

amended section 2(a), just as it was before 

the amendment. 

Nothing we say today should be taken as 

passing on a claim that a judicial election 

process in which judges are elected by few- 

er than all of the eligible voters within the 

jurisdictional area of the court on which the 

judge will serve has become a violation of 

section 2. Such elections involve district- 

ing of voters in a manner entirely un- 

related to the representative nature of the 

judge’s office. 

[Thornburg v.] Gingles [478 U.S. 30, 106 

S.Ct. 2752, 92 L.Ed.2d 25 (1986) ] tells me 

that whether the political process chosen 

by Texas for selecting its judges is equally 

open depends upon evaluation of past and 

present reality under a functional view of 

the process. There is nothing wrong with 

the state’s choice to elect any number of a 

county’s district judges county-wide. How- 

ever, if the state has chosen to divide a 

single judicial jurisdiction into separate 

groups of electors, that choice could, with



  

254 

changes in demographics or other condi- 

tions come to raise real issues of racial 

gerrymander, gross diminution of voting 

strength, candidate slating ability or other 

violations of equal protection which have 

nothing to do with the due process con- 

cerns which control the execution of judi- 

cial duties, or with the manner in which the 

office of judge is carried out. Of course, I 

agree that Wells v. Edwards establishes 

that approximate numeric equality of vot- 

ers between judicial districts is not re- 

quired. However, we need not and should 

not decide now that judicial subdistricts 

which grow to have gross numeric or racial 

disparities in their make-up will always be 

free of possible section 2 problems. For 

this reason, I respectfully, but expressly, 

disagree with the majority’s flat-out over- 

ruling of Chisom v. Edwards. 

We are not confronted here with any 

claim of vote dilution resulting from long- 

established subdistricts alleged to have be- 

come racially invidious on a basis of intra- 

jurisdictional voter distribution. This was 

the claim that was before this court in 

Chisom. The holding in Chisom reversed 

a dismissal on the pleadings. I agree that 

such a reversal was proper, even though I 

cannot agree with all said in Part I of 

Judge Higginbotham’s concurrence or 

Judge Johnson’s dissent because both deny 

vitality to section 2(b). Since we are writ- 

ing en banc, I am free to disagree with the 

reason given for the result in Chs- 

som—that section 2 applies to all judicial 

elections. I am of the opinion that it is 

equally wrong to say that section 2 covers 

all judicial elections as it is to say it covers 

none. However, if today’s facts were the 

same as Chisom’s, I would hold a claim 

that judicial subdistricts, once having no 

invidious purpose, but alleged, over time, to 

have come to abridge section 2 rights, must 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

be factually developed and cannot be dis- 

missed on pleadings alone. 

If the issue were reached in today’s case, 

I would also agree with Judge 

Higginbotham that the presence of multi- 

ple judicial posts on the ballots of plaintiffs 

here gives them no section 2 right to have 

single-judge subdistricts drawn. I would 

do so because I am not required to agree 

that the principle applies on any broader 

scale than the facts before us present. His 

function-of-the-office analysis is, to me, 

identical in concept to the majority view. 

The caveat I think must be added to both is 

that only when the area of jurisdiction of 

each of several jurist to be elected is coex- 

tensive with the area of residence of those 

that elect them, is each vote for a judge 

bound to be equal to every other vote that 

may be cast. 

I would not agree with Judge 

Higginbotham that the single-judge, trial- 

court function of the judicial office is a 

critical factor. The analysis ought to be 

the same regardless of how the judge 

judges. When an appellate judge—who 

must function with other appellate judges 

to accomplish the judicial task—serves the 

same jurisdictional area as that which de- 

fines the electorate, section 2 does not al- 

low a single member subdistricting remedy 

to be applied. This is so because no intrad- 

istrict or intrastate violation of section 2 is 

possible. The collegial nature of the appel- 

late office in no way alters the compulsion 

for due process neutrality. When this neu- 

trality is coupled with congruence of juris- 

diction and electorate, they jointly assure 

equality in voting practices and procedures, 

negate representation and eliminate the 

possibility of vote dilution. 

However, as with my partial agreement 

with Judge Gee’s analysis, agreement with 

 



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

Judge Higginbotham should not be taken 

as controlling fact situations not before us 

here. The single-judge, trial-court func- 

tional analysis proceeds solely on what the 

judge does and the way he does it. These 

analyses change no basic principles. If the 

coincidence of voter residence and jurisdic- 

tion does not exist, the same possible vote 

dilution violations mentioned above, which 

have nothing to do with the function of the 

office being voted on, could occur. The 

importance of the policy embodied in sec- 

tion 2 compels me to say that these limits 

must be placed on what we write so that 

future courts will not cut short the intend- 

ed reach of section 2. In my view, the 

majority view should be limited to the facts 

before us. 

I re- 

judg- 
With the reservations expressed, 

spectfully concur in reversing the 

ment appealed from. 

HIGGINBOTHAM, Circuit Judge, with 

whom, POLITZ, KING and DAVIS, join, 

concurring in the judgment.* 

JOHNSON, Circuit Judge, concurs in 

Part 1. WIENER, Circuit Judge, 

concurs in Part 2. 

This is a voting rights suit challenging 

the election of district judges on a county- 

wide basis in Texas. The suit was filed in 

a United States District Court by the 

League of United Latin American Citizens 

against the Attorney General of Texas, the 

Secretary of State, and other state offi- 

* When this case was orally argued before and 
considered by the court, Judge Reavley was in 

active service. He participated in both the oral 
argument and the en banc conference. He took 
senior status, however, on August 1, 1990. 

Based on his understanding of the Supreme 
Court decision in United States v. American-For- 
eign Steamship Corp., 363 U.S. 685, 80 S.Ct. 
1336, 4 L.Ed.2d 1491 (1960), he considers him- 

self ineligible to participate in the decision of 

255 

cials, seeking a declaratory judgment that 

the at-large election of state district judges 

in nine targeted counties is illegal under 

Section 2 of the Voting Rights Act, 42 

U.S.C. § 1973, and violative of the four- 

teenth and fifteenth amendments of the 

United States Constitution. Plaintiffs re- 

quested the district court to enjoin further 

elections and to impose a districting 

scheme that included single-member dis- 

tricts. Texas has 254 counties, but the suit 

attacked only Harris, Dallas, Tarrant, Be- 

xar, Travis, Jefferson, Lubbock, Ector, and 

Midland Counties.! These nine counties 

have more than one district judge elected 

county-wide, and elect 172 of the state's 

390 district judges. As we will explain, the 

suit targets Texas law requiring election of 

a state district judge from a district no 

smaller than the county, the geographical 

area of its jurisdiction. 

After a bench trial, the district court 

found violations of the Voting Rights Act 

in each of the nine counties, but rejected 

the constitutional arguments, finding that 

plaintiffs had failed to prove that the elec- 

toral system was instituted or maintained 

with discriminatory intent. On January 2, 

1990, the district court enjoined defendants 

from: 

Calling, holding, supervising and certify- 

ing elections for state district judges in 

Harris, Dallas, Tarrant, Bexar, Travis, 

Jefferson, Lubbock, Hector and Midland 

this case, but he adheres to the views in this 

opinion. See Sawyer v. Butler, 881 F.2d 1273 
(5th Cir.1989) and Court Policy 21.C. 

1. Ten counties actually are targeted. The 
challenged 72nd Judicial District encompass- 
es two counties, Lubbock and Crosby. We 
will refer to the nine targeted Judicial Dis- 
tricts as nine counties. 

 



  

256 

Counties under the current at-large sys- 

tem with an order for interim relief. 

The district court divided the nine counties 

into electoral sub-districts, tracing the dis- 

tricts of state representatives and the pre- 

cinct lines of County Commissioners or Jus- 

tices of the Peace. The district courts 

order affected 115 of the 172 district 

courts. The district court also ordered a 

non-partisan election for May 5, 1990, with 

any run-off to be held on June 2, 1990. We 

stayed the district court’s order pending 

this appeal. 

Defendants first argue that the Voting 

Rights Act as amended in 1982 has no 

application to the election of judges. This 

argument rests on the assertion that the 

use by Congress of the word “representa- 

tives” in Section 2(b), added by amendment 

in 1982 and popularly known as the Dole 

compromise, unambiguously excluded elect- 

ed judges because elected judges are not 

representatives. This argument in its 

broadest form—Section 2 of the Act has no 

application to any judicial elections—was 

rejected by this court in Chisom v. Ed- 

wards, 839 F.2d 1056 (5th Cir.), cert. de- 

nied sub mom. Roemer v. Chisom, 488 

U.S. 955, 109 S.Ct. 390, 102 L.Ed.2d 379 

(1988). The panel opinion was unanimous. 

The petition for rehearing en banc was 

denied without a single member of the 

court requesting a poll. Relatedly, but 

with less sweep, defendants argue that 

Section 2(b) has no application to state dis- 

trict judges because such judges do their 

judging singly and not as part of a collegial 

body. Finally, defendants attack the find- 

ings below as well as the ordered remedy. 

In addition to quarrels with the sufficiency 

of proof that the votes of minorities were 

diluted, defendants argue that the findings 

are flawed by the erroneous legal conclu- 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

sion that the contribution of partisan vot- 

ing to election outcomes is not relevant. 

We are unpersuaded that Chisom ’s deci- 

sion regarding the election of appellate 

judges was incorrect, but are persuaded 

that Section 2(b) will not support this at- 

tack upon the countywide election of trial 

judges. Because we would decide the case 

on this ground we do not reach defendants’ 

other contentions. 

LL. 

A. 

We are pointed to no evidence of how the 

Framers’ viewed elected judges. This is 

not surprising; judges were not elected at 

the time the Constitution was written and 

ratified. The thirteen original states em- 

ployed various methods of judicial selec- 

tion, seven using appointment by the legis- 

lature, five by governor and council, and 

one by governor and legislature. See Win- 

ters, Selection of Judges—an Historical 

Introduction, 44 Tex.L.Rev. 1081, 1082 

(1966). Electing judges was a Jacksonian 

reform aimed at making judicial selection 

more democratic: 

Popular sovereignty and popular con- 

trol of public affairs through the elective 

system were hallmarks of the Jacksonian 

era, and, not surprisingly, the movement 

for popular election of judges dates from 

this period. Dissatisfaction with the ju- 

diciary was widespread among Jacksoni- 

ans. It arose from several factors in- 

cluding a general disaffection with the 

legal profession, abuses in the judicial 

appointment systems, and a feeling, car- 

ried over from the Jeffersonian period, 

that the courts were basically 

undemocratic. Consequently, the aboli- 

tion of tenure during good behavior and 

the adoption of the elective system were 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

advocated as reform measures and were 

hailed as in accord with the egalitarian 
spirit of the times. 

Note, The Equal Population Principle: 

Does It Apply to Elected Judges? 47 No- 

tre Dame L.Rev. 316, 317 (1971). 

The first judicial elections took place as 

early as 1812 for Georgia lower court 

judges, Ga. Const. art. III, § 4 (1812), and 
in 1832 Mississippi adopted a completely 

elective judiciary. Miss. Const. art. IV, 
§§ 2, 11, 16 (1832). When it joined the 

Union, Texas ironically became the first 

new state to adopt the federal method of 

selecting judges, by executive appointment 
with confirmation by the state senate. Id.; 

Tex. Const. art. IV, Section 5 (1845). The 

wholesale change from appointed to elected 

judges can be marked by New York’s adop- 

tion of judicial elections in 1846. N.Y. 

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

new states entering the union after that 

date, until the entrance of Alaska in 1958, 

used elections as their method of judicial 
selection, and Georgia, Maryland, Virginia, 

and Pennsylvania switched from appoint- 

ment to election. Winters, Selection of 
Judges, 44 Tex.L.Rev. at 1082. In short, it 

is fair to conclude that electing judges was 

viewed as being more democratic and as a 

way of ensuring that judges remained sen- 

sitive to the concerns of the people. 

It is vigorously argued that Section 2 of 

the Voting Rights Act has no application to 

judicial elections because judges are not 

representatives. The argument in its 

strongest form is that the word “represent- 

atives,” found in Section 2(b), unambig- 

uously excludes judges because judges 

have no constituents. The argument con- 

tinues that there is no occasion for explor- 

ing legislative history because the inquiry 

ends with the plain words of the statute. 

While drawing the language of Section 2(b) 

257 

from White v. Regester, 412 U.S. 755, 93 

S.Ct. 2332, 37 L.Ed.2d 314 (1973) Congress 

substituted the word “representatives” for 

“legislators,” at the least to insure it 

reached elected executive officials. This 

much defendants do not deny. Rather, 

they argue that although “representatives” 

may encompass executive officials, Con- 

gress intended that the term not encom- 

pass judges. 

To be unambiguously inapplicable to 

judges, the word “representatives” must 

be certain of only one relevant meaning 

and that meaning must exclude judges. 

Defendants must concede, however, that at 

one level of generality judges are repre- 

sentatives. The history of electing judges 

and the political impulses behind that 

choice are powerful evidence of considered 

decisions to keep judges sensitive to the 

concerns of the people and responsive to 

their changing will. This reality belies the 

bold assertion that judges are in no sense 

representatives. The assertion that judges 

are not representatives actually. masks a 

concern that judges should mot be repre- 

sentatives. This is a choice left to the 

states, and Texas has chosen to elect 

judges convinced that direct accountability 

insures that judges represent the people in 

their judicial tasks. 

Judges are oath bound to obey the law 

and to make decisions in an impartial man- 

ner but that does not mean that they are in 

no practical sense representatives of the 

people. Yet, executive officials, who are 

considered representatives, are bound by 

the same oath. While judges are indeed 

far removed from the logrolling give and 

take of the legislative and even executive 

processes, the effort to assure “sensitivity” 

and “accountability” through elections is 

no more than an insistence that the judges 

 



  

258 

represent the people in their task of decid- 

ing cases and expounding the law. State 

judges, wearing their common law hats, 

face decisions such as whether to adopt a 

comparative fault standard, and in doing so 

represent the people in a very real sense. 

At least at this level of generality judges 

are indisputably representatives of voters. 

Saying so in no way steps on the equally 

‘indisputable difference between judges and 

other representatives—that judges do not 

represent a specific constituency. 

It is true that judges do not carry the 

views of a certain group of people into a 

larger governmental body, attempting to 

sway that body toward decisions favorable 

to their constituency.? That is not the nec- 

essary role of a representative. We extoll 

the virtues of the jury in criminal cases— 

the jury is said to be the representatives of 

the people. Both judicial opinions and aca- 

demic writings describe members of juries 

as representatives. See Spaziano v. Flor- 

ida, 468 U.S. 447, 104 S.Ct. 3154, 3176, 82 

L.Ed.2d 340 (1984); Gillers, Deciding Who 

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

Kalven & H. Zeisel, The American Jury 

436 (1966). The examples can be multi- 

plied, but the point is plain. The conclusion 

that the word “representative” has the sin- 

gular meaning of legislator is nothing more 

than an effort to substitute judicial will for 

that of Congress. It is an undisguised 

effort by judges to claim for judges an 

exemption from the Voting Rights Act. 

This exercise of raw judicial power claims 

for federal courts, power belonging to Con- 

2. The same may be said for county survey- 
ors, treasurers, court clerks and a myriad of 
office holders. 

3. It is argued that, whether or not the un- 
amended Section 2 reached judicial elections 
is irrelevant, because Section 2(b) represents 
not just an amendment to but a fundamental 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

gress and to the states. Texas has decided 
to elect its judges and Congress has decid- 

ed to protect the rights of voters in those 

elections. 

In sum, we cannot determine whether 

Section 2(b) of the Voting Rights Act ap- 

plies to judicial elections by looking only to 

the word “representative.” Rather, we 

must look to the context in which the word 
is used and legislative history, cautious as 

we must be over that enterprise. Explora- 

tion of this context requires that we deter- 

mine whether in using the word representa- 

tive in the 1982 amendments, Congress in- 

tended to withdraw the Act’s existing cov- 

erage of judicial elections. That is, the 

freight the majority’s use of representative 

must bear becomes enormous if, before the 

1982 amendments, the Voting Rights Act 

reached judicial elections.? 

We therefore turn first to whether the 

Voting Rights Act covered judicial elections 

before 1982. We consider the 1982 amend- 

ments to the Act and review the legislative 
history of the amendments. We then turn 

to the question whether Congress was re- 

quired to mention specifically the election 

of judges in the statute. The resolution of 

this question is informed by application of 

settled principles of federalism; we deter- 

mine that the election of judges has no 

claim to the protections of federalism not 

shared by other institutions of state 

government. We next reject the argument 

that because the one-person, one-vote prin- 

ciple is inapplicable to the judiciary, racial 

vote-dilution claims under Section 2 must 

shift in the operation of the Act. As such, 
the amended Section 2 should not be read to 
reach judicial elections unless Congress ex- 
plicitly so provided. See Atascadero State 
Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 
3142, 87 L.Ed.2d 171 (1985). We refute this 

argument in the text below. 

   



*LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

be inapplicable as well. Finally, we look at 

the interplay of Sections 2 and 5 to deter- 

mine whether differences between the two 

sections preclude the application of Section 

2 to judicial elections despite Section 5's 

coverage of those same elections, and con- 

clude that they do not. 

B. 

Section 2, before the 1982 amendments, 

provided as follows: 

§ 1793. Denial or abridgement of right 

to vote on account of race or color 

through voting qualifications or pre- 

requisites. 

No voting qualification or prerequisite 

to voting, or standard, practice, or proce- 

dure shall be imposed or applied by any 

State or political subdivision to deny or 

abridge the right of any citizen of the 

United States to vote on account of race 

or color, or in contravention of the guar- 

antees set forth in section 1973b(f)(2) of 

this title. 

42 U.S.C. § 1973 (1975). 

Section 2 by its express terms reached 

state judicial elections. “Vote” or “voting” 

was defined as including “all action neces- 

sary to make a vote effective in any pri- 

mary, special or general election ... with 

respect to candidates for public or party 

office and propositions for which votes are 

received in an election.” 42 U.S.C. § 1973! 

(c)(1). There was no mention of judges or 

the judiciary. There also was no mention 

of any other specific office. Judges are 

“candidates for public or party office” 

elected in a “primary, special, or general 

election.” Congress intended to reach all 

types of elections, rather than to pick and 

choose. Indeed, even votes on propositions 

are within the purview of the Act. Section 

14(c)(1), 42 U.S.C. § 19731 (c)(1). 

259 

Defendants argue that the Act is silent 

as to judges, so it must be construed as not 

including judicial elections. They argue 

that, while judges in Texas are “candidates 

for public office,” it is uncertain whether 

Congress, by providing a broad definition 

of “vote,” also intended to create a private 

remedial cause of action of similar scope in 

Section 2. Congress expressly defined the 

term ‘vote” or ‘voting,’ however, and 

nothing suggests that Congress did not 

intend that definition to apply throughout 

the Act, including Section 2. 

Congress intended that its 1965 Act pro- 

vide protection coextensive with the Consti- 

tution. Justice Stewart reiterated this in 

City of Mobile v. Bolden: 

[I]t is apparent that the language of sec- 

tion 2 no more than elaborates upon that 

of the Fifteenth Amendment, and the 

sparse legislative history of section 2 

makes clear that it was intended to have 

an effect no different from that of the 

Fifteenth Amendment itself. ... 

446 U.S. 55, 60-61, 100 S.Ct. 1490, 1495 

1496, 64 L.Ed.2d 47 (1980). We reject the 

implicit suggestion that the protections of 

the Fifteenth Amendment do not extend to 

minorities whose right to vote in judicial 

elections is abridged. The Fifteenth 

Amendment applies to all elections, and 

Congress intended the Voting Rights Act 

of 1965 to apply to all elections. 

By its terms the 1965 Act included judi- 

cial elections. Under defendants’ argu- 

ment then the word representative in Sec- 

tion 2(b) must bear the burden of being the 

sole means by which Congress in the 1982 

amendments exempted judicial elections 

from the Act’s coverage. The record is 

barren of any hint that Congress’s effort in 

1982 to expand the Voting Rights Act car- 

 



  

260 

ried a sub rosa withdrawal of coverage for 

state judicial elections. 

C. 

Congress amended Section 2 in 1982 in 

partial response to the Supreme Court's 

decision in City of Mobile v. Bolden, 446 

U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 

(1980). Thornburg v. Gingles, 478 U.S. 30, 

106 S.Ct. 2752, 2758, 92 L.Ed.2d 25 (1986). 

Bolden held that in order to establish a 
violation under Section 2 of the Act a plain- 

tiff must prove purposeful racial discrimi- 

nation. Bolden, 446 U.S. at 66, 100 S.Ct. at 

1499. Congress incorporated a “results 

test” into Section 2(a) to diminish the bur- 

den of proof necessary to prove a violation. 

Congress also added Section 2(b), which 

codified the legal standards enunciated in 

White v. Regester, 412 U.S. 755, 93 S.Ct. 
2332, 37 L.Ed.2d 314 (1973). As amended 

in 1982, Section 2 now provides: 

(a) No voting qualification or prerequi- 

site to voting or standard, practice, or 

procedure shall be imposed or applied by 

any State or political subdivision in a 

manner which results in a denial or 

abridgement of the right of any citizen of 

the United States to vote on account of 

race or color, or in contravention of the 

guarantees set forth in section 

1973b(f)(2) of this title, as provided in 

subsection (b) of this section. 

(b) A violation of subsection (a) of this 

section is established if, based on the 

totality of circumstances, it is shown that 

the political processes leading to nomina- 

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

The plaintiffs’ burden is to produce evi- 
dence to support findings that the political 
processes leading to nomination and elec- 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

tion or election in the State or political 

subdivision are not equally open to par- 

ticipation by members of a class of citi- 

zens protected by subsection (a) of this 

section in that its members have less 

opportunity than other members of the 

electorate to participate in the political 

process and to elect representatives of 

their choice. The extent to which mem- 

bers of a protected class have been elect- 

ed to office in the State or political subdi- 

vision is one circumstance which may be 

considered: Provided, that nothing in 

this section establishes a right to have 

members of a protected class elected in 

numbers equal to their proportion in the 

population. 

42 U.S.C. § 1973 (1982). 

The plain language of Section 2(a) reach- 

es judicial elections, using the same broad 

language as the 1965 Act, referring gener- 

ally to “voting” and “vote,” the definitions 

of which continued unchanged under the 

1982 amendments. The legislative history 

of the 1982 amendments does not indicate 

that the terms “vote” or “voting” do not 

include judicial elections, or that “candi- 

dates for public office” does not include 

judges. While retaining the identical statu- 

tory reach, Congress added the word “re- 

sults” as the measure of violation. The 

word representative does not appear in 

subsection (a). 

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

1982 amendments. Section 2(a) refers to 

“denial or abridgement of the right ... to 

tion were not equally open to participation 
by the group in question—that its mem- 
bers had less opportunity than did other 
residents in the district to participate in 
the political processes and to elect legisla- 
tors of their choice. 

412 U.S. at 766, 93 S.Ct. at 2339. 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

vote on account of race or color ..., as 

provided in subsection (b) of this section.” 

Section 2(a) anticipates that subsection (b) 

will define how a violation of subsection (a) 

can be established. Other than the previ- 

ously discussed vague use of the word 

“representative,” there is no reason to sup- 

pose that subsection (b), defining a type of 

proof sufficient under Section 2, was meant 

to withdraw all coverage from judicial elec- 

tions. Before we turn to the legislative 

history of the 1982 amendments for evi- 

dence of intent to exclude judicial elections 

from coverage, we pause to emphasize that 

the exercise is itself not necessary. A 

straightforward reading of both Sections 

2(a) and 2(b) leaves little doubt but that 

Section 2(a)’s broad reach was never in- 

tended to be limited by use of the word 

representative in the explanation in Section 

2(b) of how a violation might be shown. 

Congress used the word “candidates” in- 

terchangeably with “representatives” in 

the legislative history. There was no indi- 

cation that “representatives” was intended 

to have a limited meaning, applying only to 

legislative and executive officials, but not 

to elected members of the judiciary. Even 

Senator Dole, who proposed the language 

of compromise in Section 2, stated 

Citizens of all races are entitled to have 

an equal chance of electing candidates 

of their choice, but if they are fairly 

afforded that opportunity, and lose, the 

law should offer no redress. 

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

(Additional Views of Senator Robert Dole), 

reprinted in 1982 U.S.Code Cong. & Ad- 

min.News 177, 364 (emphasis added), and 

[The standard is whether the political 

processes are equally “open” in that 

members of a protected class have the 

same opportunity as others to partic 

261 

ipate in the political process and to elect 

candidates of their choice. 

Id. (emphasis added). 

In the one place where the judiciary is 

specifically mentioned in the legislative his- 

tory of the 1982 amendments, the report of 

the subcommittee on the Constitution 
states that the term “ ‘political subdivision’ 

encompasses all governmental units, in- 

cluding city and county councils, school 

boards, judicial districts, utility districts, 

as well as state legislatures.” Report of 
the Subcommittee on the Constitution of 

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

97th Cong., 2d Sess., reprinted in 1982 

U.S.Code Cong. & Admin.News 177, 323 

(emphasis added). Of course, a brief state- 
ment in a subcommittee report opposing 

the amendments is not much. None- 

theless, the proponents of the changes to 
the Act did not contest this description, 

although they would have had incentive to 
do so to alleviate any fears of such extend- 

ed coverage if such a broad scope of appli- 
cability were not intended. 

The Senate and House hearings regard- 

ing the 1982 amendments contain various 
references to judicial elections, primarily in 

the context of statistics presented to Con- 

gress indicating the progress made by mi- 

norities under the Act up to that date. The 

charts indicated when minorities were 

elected to office, and included judicial elec- 
tion results. See Extension of the Voting 

Rights Act: Hearings on H.R. 1407, H.R. 

1731, HR. 3119, HR. 3198, HR. 3473 and 

HR. 3,98 Before the Subcomm. on Civil 

and Constitutional Rights of the House 

Comm. on the Judiciary, 97th Cong. 1st 

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

1182, 1188, 1515, 1528, 1535, 1745, 1839, 

2647 (1981); Voting Rights Act: Hearings 

on S 53, 8 1761, S. 1975, S. 1993, and 

H.R. 3112 Before the Subcomm. on the 

 



  

262 

Constitution of the Senate Comm. on the 

Judiciary, 97th Cong. 2d Sess. 669, 748, 

788-89 (1982). 

To summarize, the relevant legislative 

history concerning the 1982 amendments 

suggests that Section 2(b) was intended to 

reach all elections, including judicial elec- 

tions. There is no hint that Congress in- 

tended to withdraw coverage. 

But, it is argued, even if other aspects of 

Voting Rights law do apply to judicial elec- 

tions, nonetheless, vote-dilution claims 

should not, because these claims are a new 

and fundamentally different ground for re- 

lief under amended Section 2 and because 

anti-dilution remedies are particularly in- 

trusive on the judiciary. Therefore, the 

argument continues, had Congress intend- 

ed the Act to apply to judicial elections, it 

should have said so explicitly, which it did 

not. We reject this argument that Con- 

gress singled out both judicial elections and 

dilution claims for distinct treatment. In 

plain language it argues that Congress af- 

firmatively turned its head away from the 

dilution of minority votes in judicial elec- 

tions. 

The first flaw in this argument is that 

vote-dilution claims were not newly autho- 

rized by amended Section 2. There were 

many vote dilution cases before 1982. The 

statutory prohibition of vote dilution by the 

Voting Rights Act is as old as the Act 

itself. It was first raised as early as 1965, 

the year of the Act’s inception, when the 

Supreme Court observed 

It might well be that, designedly or oth- 

erwise, a multi-member constituency ap- 

portionment scheme, under the circum- 

stances of a particular case, would oper- 

ate to minimize or cancel out the voting 

strength of racial or political elements of 

the voting population. When this is dem- 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

onstrated it will be time enough to con- 

sider whether the system still passes con- 

stitutional muster. 

Fortson v. Dorsey, 379 U.S. 433, 439, 85 

S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). Vote- 

dilution claims were considered in Burns v. 

Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 

L.Ed.2d 376 (1966), and Whitcomb v. Chav- 

7s, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 

363 (1971), where the plaintiffs were unsuc- 

cessful, and in White v. Regester, 412 U.S. 

755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), 

and Zimmer v. McKeithen, 485 F.2d 1297 

(6th Cir.1973) (en banc), aff'd sub mom. 

East Carroll Parish School Board v. Mar- 

shall, 424 US. 636, 96 S.Ct. 1083, 47 

L.Ed.2d 296 (1976), where the plaintiffs 

prevailed. These cases were decided under 

the results test. Finally Mobile v. Bolden, 
446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 

(1980), where the Supreme Court articu- 

lated the intent standard, was a dilution 

case. The 1965 Act, therefore, was con- 

sidered to prohibit vote dilution as well as 
more straightforward denials of the right 

to vote. By its terms the act covered judi- 

cial elections. The 1982 amendments sim- 

ply made it clear that results and not intent 

were the basis for finding a violation. 

However difficult in application the results 

test may have proved to be, the amend- 

ments to Section 2 did not themselves cre- 

ate a vote-dilution claim. To the contrary, 

the dilution of the voting strength of mi- 

norities was the accepted premise of the 

debate. Indeed Zimmer v. McKeithen, 485 

F.2d 1297 (5th Cir.1973) (en banc), the 

source of the “senate factors” that became 

part of the congressionally required in- 

quiry, was a dilution case. 

Much of the legislative history of the 

1982 amendments indicates that Congress 

intended to return to pre-Bolden standards, 

and was not otherwise reaching for a new 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

and more intrusive private cause of action. 

As we will explain, at least Senator Hatch 

feared the language of the 1982 amend- 
ment would be much more intrusive, ex- 

pressing concern that its uncertainty would 

lead to proportional representation. His 

fear was fueled by the restoration of the 
results test, however, not dilution theory, 

which had been part of the voting rights 

law for at least seventeen years. 

The principal focus of the House debates 

centered on Section 5, but the Senate de- 
bates were centered on the meaning of the 

Section 2 amendments. Nonetheless, there 

was some discussion in the House, and at 

least some witnesses argued that ‘‘the 

amended Section 2 ... would restore to 
black Southerners the right to challenge 

alleged discriminatory election schemes 

which were developing before Mobile, [and 

that] notwithstanding the Court’s claim to 
the contrary in Mobile, the intent test first 

became a constitutional standard in 1976 

with Washington v. Davis, an employment 

case.” Boyd & Markman, The 1982 
Amendments to the Voting Rights Act: A 

Legislative History, 40 Wash. & Lee 

L.Rev. 1347, 1366 (citing comments by 

James Blacksher and David Walbert). 

Congressman Sensenbrenner argued that 

the Rodino amendment to Section 2 was 

necessary in order to clarify the standard 

of proof required in order to establish viola- 

tions of the Act. 127 Cong.Rec. H6850 

(daily ed. Oct., 1981) at H6983. 

In the Senate Report on the Amendments 

the purpose of the bill was stated as 

designed to make clear that proof of 

discriminatory intent is not required to 

establish a violation of Section 2. It 

thereby restores the legal standards 
based upon the controlling Supreme 

Court precedents, which applied in voting 
discrimination claims prior to the litiga- 

263 

tion involved in Mobile v. Bolden. The 

amendment also adds a new subsection 

to Section 2 which delineates the legal 

standards under the results test by codi- 

fying the leading pre-Bolden vote dilu- 

tion case, White v. Regester. 

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

in 1982 U.S.Code Cong. & Admin.News at 

179 (emphasis added). 

Senator Hatch opposed the change, argu- 

ing that it “would redefine the concept of 

‘discrimination’ and would ‘transform the 

Fifteenth Amendment and the Voting 

Rights Act from provisions designed to en- 

sure equal access and equal opportunity in 

the electoral process to those designed to 

ensure equal outcome and equal success.” ” 

Boyd, Voting Rights Act Amendments, 40 

Wash. & Lee L.Rev. at 1389 (quoting Hear- 

ings on the Voting Rights Act Before the 

Senate Subcommittee on the Constitu- 

tion of the Committee on the Judiciary, 

97th Cong., 2d Sess. 3 (1982)). But, Sena- 

tor Mathias, a proponent of the bill, argued 

The House amendment is needed to clari- 

fy the burden of proof in voting discrimi- 

nation cases and to remove the uncertain- 

ty caused by the failure of the Supreme 

Court to articulate a clear standard in 

the City of Mobile v. Bolden.... We 
are not trying to overrule the Court. 

The Court seems to be in some error 

about what the legislative intent was. ... 

Prior to Bolden, a violation in voting 

discrimination cases [could] be shown by 

reference to a variety of factors that, 

when taken together, added up to a find- 

ing of illegal discrimination. But in Bol- 

den, the plurality appears to have aban- 

doned this totality of circumstances ap- 

proach and to have replaced it with a 

requirement of specific evidence of intent 

. this is a requirement of a smoking 

 



  

264 

gun, and I think it becomes a crippling 

blow to the overall effectiveness of the 

Act. 

Hearings on the Voting Rights Act Before 
the Senate Subcommittee on the Consti- 

tution of the Committee on the Judiciary, 
97th Cong., 2d Sess. 3, 199 (1982). 

Senator Hatch persisted that the results 
test represented a new test, but supporters 

of the bill took issue with this view. 
Laughlin McDonald of the ACLU argued 

that “[p]rior to Mobile, it was understood 

by lawyers trying these cases and by the 
judges who were hearing them that a viola- 

tion of voting rights could be made out 

upon proof of a bad purpose or effect ... 
Mobile had a dramatic effect on our cases.” 
Id. at 369. Defenders of the amendment 

assumed that the results test represented a 

restatement of the law prior to Bolden. 

Critics of the results test argued that 
even if the lower federal courts had 

adopted a results test in their pre-Bolden 

interpretation of Section 2, the original in- 
tent of Congress had been the establish- 

ment of a test in Section 2 using the tradi- 
tional standard of intent or purpose. Boyd, 

Voting Rights Act Amendments, 40 Wash. 
& Lee L.Rev. at 1405 (citing Appendix to 
Additional Views by Senator Hatch, S.Rep. 

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

Proponents responded by arguing that 

there was no evidence that Congress meant 

an intent test to apply. The Senate Report 

of the Committee on the Judiciary adopted 

this view, citing Attorney General Katzen- 

bach’s testimony during the hearings on 

the Voting Rights Act of 1965 to the effect 

that “Section 2 would ban ‘any kind of 

practice ... if its purpose or effect was to 

5. Of course, when the 1982 amendments are 
considered in light of the Supreme Court's 
interpretation in Gingles, we cannot con- 
clude that the 1982 amendments to Section 2 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

deny or abridge the right to vote on ac- 

count of race or color.” S.Rep. 417, 97th 

Cong., 2d Sess., reprinted in 1982 U.S. 

Code Cong. & Admin.News at 194 (citing 

Hearings on S. 1564 before the Committee 

on the Judiciary, 89th Cong., 1st Sess., 

191 (1965)). 

This legislative history generally indi- 

cates an intent to retain pre-Bolden stan- 

dards rather than create a more intrusive 

new cause of action.’ We have insisted in 

other contexts that Congress clearly state 

its intent to supplant traditional state pre- 

rogatives. Judicial insistence upon clear 

statement is an important interpretative 

tool vindicating concern for separation of 

powers and federalism. See Atascadero 

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

105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); 

Pennhurst State School and Hospital v. 

Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 

L.Ed.2d 67 (1984) (Pemmhurst II). This 

insistence upon “an unequivocal expression 

of congressional intent,” Pennhurst II, 465 

U.S. at 99, 104 S.Ct. at 907, is based upon 

the fundamental nature of the interests at 

stake, Atascadero, 105 S.Ct. at 3147 (“The 

‘constitutionally mandated balance of pow- 

er’ between the states and the Federal 

Government was adopted by the Framers 

to ensure the protection of ‘our fundamen- 

tal liberties.’ ”’) (quoting Garcia v. San An- 

tonio Metropolitan Transit Authority, 

469 U.S. 528, 572, 105 S.Ct. 1005, 1028 

(Powell, J., dissenting)). These mighty 

principles do not carry us very far here. 

Congress has clearly expressed the Act's 

application to the states, and has clearly 

expressed its intent that violations of the 

worked no changes from the pre-Bolden in- 
terpretation of the Act. But this is what it 
became, not necessarily what it was when 
voted upon. 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

Act be determined by a results test rather 
than an intent standard. By these actions, 
the Act, with all of its intrusive effect, has 

been made to apply to the states. Signifi- 

cantly, the “results tests” did apply to all 
elections including judicial elections until 

the 1980 decision of Mobile v. Bolden, su- 

pra. Thus, intrusive as it is, the Act, in- 

cluding the anti-dilution provisions, applied 

to judges before the 1982 amendment. The 
suggestion that anti-dilution and results 

tests were introduced by the 1982 amend- 

ments is wrong. 

The majority’s argument is by necessity 

a demand for the exemption of judicial 
elections from the Act as a whole. We 

cannot recognize this broad exemption.b 

Section 5, commonly seen as the most far 
reaching of the Voting Act provisions, see 

South Carolina v. Katzenbach, 383 U.S. 

301, 358-62, 86 S.Ct. 803, 833-35, 15 
L.Ed.2d 769 (1966) (Black, J., dissenting), 

has allowed no escape for elected state 

judiciaries. Haith v. Martin, 618 F.Supp. 
410 (E.D.N.C.1985), aff'd mem., 477 U.S. 

901, 106 S.Ct. 3268, 91 L.Ed.2d 559 (1986). 
As an inferior court we are bound by the 

holding of the Supreme Court that judicial 
elections are covered by Section 5 of the 
Act, a result explicitly urged by then Solici- 

6. Congress dispensed with proof of purpose- 
ful violation for any voting qualifications or 
prerequisites to voting or standard, practice 
or procedure “which results in a denial or 
abridgement....” It did so by using the 
word results in both Sections 2(a) and 2(b). 
The word representative, so critical to defen- 

dants’ argument, does not appear in the 
broad prohibition of Section 2(a). The Sen- 
ate Report explained that the results test 
apply to a variety of violations. 

For example, a violation could be proved 
by showing that the election officials made 
absentee ballots available to white citizens 
without a corresponding opportunity being 
given to minority citizens. See Brown v. 
Post, 279 F.Supp. 60, 63-64 (W.D.La.1968). 

265 

tor General Charles Fried and by then head 

of the Civil Rights Division, Assistant At- 

torney General William Bradford Reynolds. 

The same officials argued in Chisom that 

amended Section 2 of the Act is equally 

applicable, as does the present administra- 

tion. 

D. 

Finally, it is argued that an elected state 

judiciary is somehow free of the anti-dilu- 

tion prohibitions of the Voting Rights Act 

but remains subject to its other strictures. 

The argument has two premises: First, 

because the pre-Bolden anti-dilution cases 

did not involve judicial elections, Section 2’s 

prohibition against vote dilution does not 

extend to judicial elections; second, be- 

cause the one-person, one-vote principle has 

been held not to apply to judicial elections, 

vote-dilution claims under Section 2 do not 

apply either. 

The first premise is obviously flawed. 

Nothing in the pre-Bolden cases suggests 

that the prohibition against vote dilution 

does not apply to judicial elections. That 

those cases involved elections of officials 

other than judges was happenstance; cases 

involving judicial elections simply had not 

Likewise, purging of voters could produce 
a discriminatory result if fair procedures 
were not followed. Toney v. White, 488 
F.2d 310 (5th Cir.1973), or if the need for a 
purge were not shown or if opportunities 
for re-registration were unduly limited. 
Administration of an election could like- 
wise have a discriminatory result if, for 

example, the information provided to vot- 

ers substantially misled them in a discrimi- 
natory way. United States v. Post, 297 
F.Supp. 46, 50-51 (W.D.La.1969), 412 U.S. 
at 769-770 [93 S.Ct. at 2341]. 

S.Rep. 97-417 n. 119 p. 208. 
We decline to say that Congress intended 

to exempt state judicial elections from statu- 
tory regulation of these practices. 

 



  

266 

yet come up. Furthermore, the statutory 

language cannot be parsed to read that 

judicial elections are not subject to dilution 
claims, but are subject to the remaining 

strictures of Section 2. This is so even if 

representative is found to mean elected 

members of the legislative and executive 

branches but not the judicial branches of 
state government. Further, concluding 

that Section 2 does not apply would create 

the anomaly that Section 5, conceded to 

reach elected judges, and Section 2 use 

identical language to define their reach. 

Section 2 either applies in its entirety or 

not at all and defendants’ efforts to soften 

the full force of their extraordinary conten- 

tion must fail. 

The second premise—that because the 

one-person, one-vote principle does not ap- 

ply to judicial elections, the vote-dilution 

prohibition does not either—must also fail. 

The prohibition of geographical discrimina- 

tion in voting expressed in Baker v. Carr, 

369 .U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 

(1962) and Reynolds v. Sims, 377 U.S. 533, 

84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), com- 

monly referred to as the one-person, one- 

vote principle, was held not to apply to the 

apportionment of state judiciaries in Wells 

v. Edwards, 347 F.Supp. 453 (M.D.La.1972) 

(83—judge court), aff'd mem., 409 U.S. 1095, 

93 S.Ct. 904, 34 L.Ed.2d 679 (1973) (three 

justices, dissenting). It is argued that vote 

dilution principles cannot be applied to an 

elected judiciary because the one-man, one- 

vote principle does not apply, and without 

requiring equal apportionment there is no 

benchmark for concluding that there is 

vote dilution. This argument rests upon 

the equating of racial and non-racial acts 

by the state that deny voting strength. 

Yet they measure equality on quite differ- 

ent planes. One is facially neutral in the 

matter of race; indeed compliance may ad- 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

versely affect black voting power. The 
other rests on core concerns of the Civil 

War amendments—submerging of minority 

voting strength by the combined force of 
election methods and bigotry. In the more 

concrete terms of this case, that the state 

has chosen to allot thirty-some judges to 

Dallas County and only one to another 

county is not relevant. Submerging votes 

of protected minorities by a cohesive white 

majority is relevant. 

It is perverse now to reason that because 

the elections of state judges are free of the 

Reynolds’ command of numerical equality, 

an elected judiciary is a fortiori free from 

the racial equality commands of the Civil 
War Amendments and the Voting Rights 

Act. It is perverse because even the de- 

fenders of the “political thicket” doctrine 

at all times maintained that the courts 

must hold to the core values of the Civil 
War Amendments. For example, Justice 

Frankfurter, in his famous dissent to the 

Court’s entry into the political thicket in 

Baker v. Carr admitted, joined by Justice 

Harlan, that “explicit and clear constitu- 

tional imperatives guided judicial interven- 

tion in state government on the issue of 

black disenfranchisement.” Baker wv. 

Carr, 369 U.S. 186, 285-86, 82 S.Ct. 691, 

747-48, 7 L.Ed.2d 663 (1962) (Frankfurter, 

J., dissenting). 

The courts have struggled to develop a 

measure of dilution stemming from the 

combination of racial voting patterns and 

state election practices. Gingles itself was 

the first detailing of that enterprise by the 

Supreme Court. At earlier times, various 

justices have referred to our efforts to do 

so in Zimmer v. McKeithen as amorphous. 
But, this difficulty has nothing to do with 

the inapplicability of the command of nu- 

merical equality, nor is its difficulty pecu- 

liar to judicial elections. We remind that 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

the effort in this case to measure the sub- 

merging of black and Hispanic voting pow- 

er begins with a system that is numerically 

perfect—county-wide elections. 

We are pointed to several lower court 

opinions stating that judges are not “repre- 

sentatives.” 7 These cases held that the 

prohibition against geographical discrimi- 

nation does not reach judicial elections. 

The argument is that because many of 

these courts held that judges are not “rep- 

resentatives,” Congress must have meant a 

similar exclusion in its use of the word. 

We disagree. Words come to their full 

meaning in context. This argument of in- 

corporated definition is unsupported by a 

trace of legislative history and is no more 

than an assertion. Indeed we showed 

above that Congress meant ‘“representa- 

tive” to include judges for the purposes of 

the Voting Rights Act. The Reynolds prin- 

ciple is race neutral, different, as we ob- 

served, from the race-based focus of the 

Voting Rights Act. However problematic 

locating the principle of one-person, one- 

vote in the fourteenth amendment may be, 

race-based concerns are at its core. Noth- 

ing in policy or logic suggests that de- 

7. See, e.g., Concerned Citizens of Southern 
Ohio, Inc. v. Pine Creek Conservancy Dist., 
473 F.Supp. 334 (S.D.Ohio 1977); The Ripon 
Society, Inc. v. National Republican Party, 
525 F.2d 567 (D.C.Cir.1975), cert. denied, 424 
U.S. 933, 96 S.Ct. 1147, 1148, 47 L.Ed.2d 341 

(1976); Fahey v. Darigan, 405 F.Supp. 1386 
(D.C.R.1.1975); Gilday v. Board of Elections 
of Hamilton County, Ohio, 472 F.2d 214 (6th 
Cir.1972); Wells v. Edwards, 347 F.Supp. 453 
(M.D.La.1972), affd, 409 U.S. 1095, 93 S.Ct. 

904, 34 L.Ed.2d 679 (1973); Buchanan v. 
Gilligan, 349 F.Supp. 569 (N.D.Ohio 1972); 
Holshouser v. Scott, 335 F.Supp. 928 (M.D.N. 
C.1971), .affd, 409.11.S. 807,.93 S.Ci. 43, 34 
L.Ed.2d 68 (1972); Irish v. Democratic-Farm- 
er-Labor Party of Minnesota, 287 F.Supp. 794 
(D.C.Minn.), affd, 399 F.2d 119 (8th Cir. 

1968). But cf. cases dealing with the Voting 

267 

clining to extend the Reynolds principle to 
judicial elections carries any sway in free- 
ing judicial elections from race-focused con- 

cerns. 

Wells was distinguished from cases chal- 
lenging election practices in Lefkovits v. 
State Board of Elections, 400 F.Supp. 1005 

(N.D.I11.1975) (83—judge court), aff'd mem., 

424 U.S. 901, 96 S.Ct. 1092, 47 L.Ed.2d 306 

(1976), where the court stated: 

[W]hen a judge is to be elected or re- 
tained, regardless of the scheme of ap- 
portionment, the equal protection clause 
requires that every qualified elector be 
given an equal opportunity to vote and 

have his vote counted. 

Id. at 1012. This was the precise point 

made by Solicitor General Fried in his suc- 
cessful argument to the Supreme Court 

that it should summarily affirm Haith v. 

Martin. 

In Haith the district court held that judi- 

cial elections are covered by Section 5 and 
the preclearance requirements of the Act. 

The district court found, using an analysis 
similar to that used by this circuit in Voter 

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

Rights Act, Southern Christian Leadership 
Conference of Alabama v. Siegelman, 714 
F.Supp. 511 (M.D.Ala.1989); Clark v. Ed- 
wards, 725 F.Supp. 285 (M.D.La.1988); Mal- 
lory v. Eyrich, 839 F.2d 275 (6th Cir.1988); 
Martin v. Allain, 658 F.Supp. 1183 (S.D.Miss. 
1987); Lefkovits v. State Board of Elections, 
400 F.Supp. 1005 (N.D.IIL.1975), affd, 424 

U.S. 901, 96 S.Ct. 1092, 47 L.Ed.2d 306 

(1976). To the extent that any cases from 
the Sixth Circuit are used to support the 
proposition that Section 2 of the Voting 
Rights Act does not encompass judicial elec- 
tions, they are no longer good law, for the 
Sixth Circuit specifically held in Mallory v. 
Eyrich, 839 F.2d 275 (6th Cir.1988), that Sec- 

tion 2 of the Voting Rights Act applies to 
judicial elections. 

 



  

268 

one-person, one-vote principle may not ap- 
ply to judicial elections, claims with respect 
to the Voting Rights Act do not deal with 
numerical apportionment, but with discrimi- 
nation. The court held that “the Act ap- 

plies to all voting without any limitation as 
to who, or what, is the object of the vote.” 
618 F.Supp. at 413.8 In short, Haith re- 
jects the suggestion that inapplicability of 
the Reynolds principle is any barrier to the 
application of the Voting Rights Act. We 
are bound by Haith, and the relevance of 
that bind turns on whether Section 5, dealt 

with in Haith, and Section 2 are coexten- 
sive in their application to the judicial elec- 
tions. We turn now to that question. 

E. 

Defendants have raised no compelling 

reason to distinguish between Section 5 
and Section 2 with respect to their applica- 
bility to judicial elections. To distinguish 

the Sections would lead to the incongruous 
result that if a jurisdiction had a discrimi- 

natory voting procedure in place with re- 

spect to judicial elections it could not be 
challenged, but if the state sought to intro- 

duce that very procedure as a change from 

existing procedures, it would be subject to 

Section 5 preclearance and could not be 
implemented. Sections 2 and 5 operate in 
tandem, with Section 2 prohibiting the con- 

tinued use of discriminatory practices, and 

Section 5 preventing the imposition of new 

8. The changes required to be precleared in 
Haith had to do with the elections of trial 
judges. The district court did not reach the 
merits of any vote-dilution claims, for it had 
no jurisdiction to do so. New voting practic- 
es must be submitted to either the Attorney 
General or the United States District Court 
for the District of Columbia for preclear- 
ance. Other district courts only have juris- 
diction to decide whether a practice is a 
change requiring preclearance. Consequent- 
ly, the merits of a vote-dilution claim with 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

discriminatory practices to replace those 

condemned in those areas subject to pre- 

clearance. Section 5 contains language de- 

fining its scope that is almost identical to 

the language in Section 2: “any voting 

qualification or prerequisite to voting, or 

standard, practice, or procedure with re- 

spect to voting....” 

There are important differences in the 

two sections, however. Section 5 requires 

preclearance of any new voting practices 

and procedures, and, in determining wheth- 

er or not a new practice is entitled to 

preclearance, only the effect of the new 

practice is considered. City of Lockhart v. 

United States, 460 U.S. 125, 103 S.Ct. 998, 

74 L.Ed.2d 863 (1983); Beer v. United 

States, 425 U.S. 130, 96 S.Ct. 1357, 47 

L.Ed.2d 629 (1976). This has been de- 

scribed as a retrogression test, with pre- 

clearance denied only if the new practice 

has a retrogressive effect, rather than a 

results test, for the effects of the existing 

system on minorities are not considered. 

Thus in Section 2 the entire scheme of 

voting practices and procedures is con- 

sidered to see whether it results in less 

than an equal opportunity to participate in 

the political process, whereas under Section 

5 only the effects of new practices and 

procedures are considered. Section 2 is, 

therefore, arguably more intrusive than 

Section 5,° for Section 5 only regulates 

respect to trial judges was not before the 
Supreme Court. 

9. Some see Section 5 as being the most intru- 
sive aspect of the Voting Rights Act: 

This so-called “preclearance” requirement 
is one of the most extraordinary remedial 
provisions in an Act noted for its broad 
remedies. Even the Department of Justice 
has described it as a “substantial departure 
... from ordinary concepts of our federal 
system”; its encroachment on state sover- 

eignty is significant and undeniable. The 

 



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

whether or not changes may be implement- 

ed, whereas Section 2, if a violation is 

found, can lead to the dismantling of an 

entire system of voting practices that may 
have been in place for many years. This is 

a distinction between the two sections, but 

our question must be whether the differ- 

ence means that Section 5 applies to judi- 

cial elections, but Section 2 does not. 

There appears to be no relevant reason 
why judicial elections are so different from 

legislative or executive elections that both 
sections should apply to one and not the 

other. 

The Voting Rights Act plainly covered 

judicial elections before the 1982 amend- 
ments. It is equally plain that there is 

little evidence that Congress intended any 
retrenchment by its 1982 amendments. In 

sum, defendants are left with the uncon- 

vincing argument that the changes of the 
1982 amendments were fundamental in 

ways unique to judicial elections. Certain- 
ly, the Voting Rights Act intrudes heavily 

into state matters but it is no more specifi- 
cally intrusive in judicial elections than in 

any others. We would hold that Section 2 
of the Voting Rights Act applies to judicial 

elections. 

1, 

We now turn to the quarrel with the 

county-wide election of Texas trial judges. 

The Voting Rights Act does not purport to 

change the choices by a state of the duties 

and means for their discharge it gives to a 

particular office it chooses to create. 

Rather, the Act accepts these state crea- 

tures but patrols for impermissible vote 

dilution of minority voting power caused by 

section must, therefore, be read and inter- 
preted with care. 
United States v. Sheffield Board of 
Comm'rs, 435 U.S. 110, 141, 98 S.Ct. 965, 

  

269 

the features of the election process in com- 

bination with racially molded voting pat- 

terns in any election of such officials. The 

statute, however, gives no right to choose 

how the combination will be broken. It is 

important, then, that we keep in mind that 

the analysis of Thornburg v. Gingles is 

relevant only to an inquiry into whether an 

at-large election impermissibly dilutes mi- 

nority voting strength; it is not a way of 

assessing every claimed vote dilution. 

Texas has structured its government 

such that it wields judicial power at the 

trial level through trial judges acting sepa- 

rately, with a coterminous or linked elector- 

al and jurisdictional base, each exercising 

the sum of judicial power at that level, and 

all with review by courts acting collegially. 

We are persuaded that, for purposes of the 

Voting Rights Act, because the fact and 

appearance of independence and fairness 

are so central to the judicial task, a state 

may structure its judicial offices to assure 

their presence when the means chosen are 

undeniably directly tailored to the objec- 

tive. The choice of means by Texas here— 

tying elective base and jurisdiction—de- 

fines the very manner by which Texas’ 

judicial services are delivered at the trial 

court level. These means define the office. 

Nothing in the Voting Rights Act grants 

federal courts the power to tamper with 

these choices. It requires no narrow read- 

ing to conclude that the statute does not by 

its terms purport to do more. Stated in 

traditional fourteenth amendment terms, 

there is compelling necessity sufficient to 

overcome the strict scrutiny of state acts 

impinging upon a fundamental interest. 

984, 55 L.Ed.2d 148 (1978) (Stevens, J., 
dissenting) (footnote omitted). See also 
Katzenbach, 383 U.S. at 358-62, 86 S.Ct. at 
833-35 (Black, J., dissenting). 

 



  

270 

We would not lightly suppose that the Vot- 

ing Rights Act reached further than the 

Civil Rights Amendments except for dis- 

pensing with the requirement of purposeful 

violation. 

It follows that inquiry into the Section 2 

claims proceeds by accepting that trial 

judges are officials exercising the full au- 

thority of their positions alone whose full 

authority has its source in the electors 

from a district coterminous with their juris- 

diction. There can be no dilution of votes 

for a single judge because each judge holds 

a complete judicial office. This feature of 

the trial judge will alone decide this case 

but, as we will explain, we need not rest 

only on this proposition. Rather, that the 

trial judges act singly is also integral to the 

linking of jurisdiction and elective base. 

A. 

The district courts are the primary trial 

courts in Texas. Indeed, the constitution 

of the Republic of Texas provided: 

The Republic of Texas shall be divided 

into convenient judicial districts, not less 

than three, nor more than eight. There 

shall be appointed for each district a 

judge, who shall reside in the same, and 

hold the courts at such times and places 

as Congress may by law direct. 

Guittard, Court Reform, Texas Style, 21 

Sw. LJ. 451, 456 (1967). The first state 

constitution, adopted in 1845, contained es- 

sentially the same provision in article IV, 

section 6. This provision was amended in 

1850 to allow for the election of district 

judges by the people, but the subsequent 

constitution of 1861 provided that district 

judges were to be appointed. Tex. Const. 

art. V, § 7, interpretive commentary (1876, 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

amended 1985). Texas constitutions 

adopted since 1861, including the current 

constitution, which was adopted in 1876, 

have provided for elected district judges. 

All the constitutions have provided that 

the district courts are to be held by district 

judges chosen from defined districts, fol- 

lowing the pattern of the Constitution of 

the Republic of Texas. Although in the 

Constitution of the Republic of Texas the 

number of district courts was limited to not 

more than eight, subsequent constitutions 

have left the number of courts to the legis- 

lature. All Texas constitutions, including 

the current one, before it was amended in 

1985, suggested that each district would be 

served by only one judge. See Tex. Const. 

art. V, § 7 (1876, amended 1985) (“[f]or 

each district there shall be elected ... a 

Judge....”). A one judge per district sys- 

tem, however, presupposes districts of sub- 

stantially equal population. Guittard, su- 

pra at 456. Thus, with the growth of the 

population in certain counties it became 

necessary for the legislature to make ad- 

justments. 

The system challenged in this case was 

set up according to this pattern. See Tex. 

Gov't Code §§ 24.001-.954 (Vernon 1988 & 

Supp.1990). With the exception of the 

72nd district, each challenged judicial dis- 

trict in the nine targeted counties is coex- 

tensive with one county. The 72nd district 

is composed of two counties. Id. § 24.174 

(Vernon 1988). Since 1907 district judges 

have been elected county-wide. In 1985, 

however, a section was added to article V 

of the 1876 Constitution which specifically 

allows the creation of judicial districts 

smaller than a county. Tex. Const. art. V, 

§ Ta(i) (1985). A majority of the voters in 

the county must authorize the division. 7d. 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

This power has yet to be exercised.’ 

The district courts in multi-district coun- 

ties were unified for certain administrative 

purposes in 1939 through the passage of 

the Special Practice Act, which is now, for 

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

(i). Guittard, supra at 457-58. The rele- 

vant parts of the Special Practice Act es- 

sentially provide that cases can be freely 

transferred between judges and that any 

judge can work on any part of a case 

including preliminary matters. Also, 

“[alny judgment rendered or action taken 

by any judge in any of said courts in the 

county shall be valid and binding.” Tex.R. 

Civ.P. 330(h). 

The Administrative Judicial Act, original 

ly passed in 1927 and subsequently amend- 

ed on several occasions, divides Texas into 

nine administrative regions, each with a 

presiding judge appointed by the governor 

with the advice and consent of the senate. 

See Tex. Gov't Code §§ 74.005, .042 (Ver- 

non 1988). The “presiding administrative 

judge is the key administrative officer in 

the Texas judicial system.” Guittard, su- 

pra at 459. He is empowered to assign 

judges as necessary within his region. Id. 

§§ 74.052-056 (Vernon 1988 & Supp.1990); 

see also Judicial Administration Rule 8 

(Vernon 1988 & Supp.1990). He is required 

to call two meetings of all judges in his 

administrative region each year and any 

other meetings as necessary. Tex. Gov't 

Code § 74.048(a) (Vernon 1988); Judicial 

Administration Rule 4 (Vernon 1988 & 

10. The only time a district has been drawn 
smaller than a county was when the legisla- 
ture divided both Dallas and Bexar counties 
into two districts, each district having juris- 
diction throughout the whole county. The 
judge for each district was elected by the 
voters in the district in accordance with the 
constitution’s command, Tex. Const. art. V, 
§ 7 (1876, amended 1985), as opposed to 

271 

Supp.1990). This conference is for “consul- 

tation and counseling concerning the state 

of the civil and criminal business” and is 

empowered to promulgate administrative 

rules, rules governing the order of trials 

and county-wide recordkeeping, and other 

rules deemed necessary. Tex. Gov't Code 

§ 74.048(b)~(c) (Vernon 1988). 

The local administrative judge is elected 

by a majority vote of all the judges in the 

county, including both district and statu- 

tory judges. Id. § 74.091 (Vernon 1988 & 

Supp.1990). His duties on the county level 

are similar to those of the presiding admin- 

istrative judge. See id. § 74.092. The lo- 

cal administrative judge has the power to 

assign judges within his county. Id. 

§ 74.094. Under the leadership of the local 

administrative judge, the district and statu- 

tory judges in each county are directed to 

adopt local rules of administration. Id. 

§ 74.093. These rules must provide for, 

among other things, the “assignment, dock- 

eting, transfer, and hearing of all cases” 

and “fair and equitable division of case- 

loads.” Id. § 74.094(b); see also Judicial 

Administration Rule 9(b) (Vernon 1988 & 

Supp.1990). All local rules, of course, must 

be consistent with state and regional rules. 

Judicial Administration Rule 10 (Vernon 

1988). In this regard, the present Chief 

Justice of Texas testified at trial that the 

only collegial decision-making by district 

judges in a county is in the handling of 

some administrative matters. 

being elected by county-wide vote as now. 
Thus, we cannot say that there is no prece- 

dent for dividing counties into geographical- 
ly distinct districts. We can say that the 
state experimented with 2 of its 25 counties 
but abandoned the idea nearly a century ago. 
The statutes dividing Bexar and Dallas Coun- 
ties into two districts were repealed in 1895 
and 1907, respectively. 

 



  

272 

B. 

A distinction was drawn between multi- 

member and single-member structures in 
Butts v. City of New York, 779 F.2d 141 

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

106 S.Ct. 3335, 92 L.Ed.2d 740 (1986). In 
that case the plaintiffs contested a primary 

run-off law, contending that it violated the 
Equal Protection Clause and the Voting 

Rights Act. The Second Circuit noted that 
one of the ways that a class of citizens may 
have less opportunity to participate is when 

there are electoral arrangements that di- 

minish a class’s opportunity to elect repre- 
sentatives in proportion to its numbers. 

The court distinguished, however, between 

multi-member bodies, where at-large elec- 
tions may produce this result, and elections 
for single-member offices. Butts, 779 F.2d 

at 148. The court found that the Supreme 
Court had made this distinction implicit in 

City of Port Arthur v. United States, 459 

U.S. 159, 103 S.Ct. 530, 74 L.Ed.2d 334 

(1982), where the Supreme Court struck 

down a run-off requirement for seats on a 

multi-member city council, but did not men- 

tion the run-off requirement for mayor. 

The Eleventh Circuit followed Butts in 

United States v. Dallas County, Ala., 850 

F.2d 1430 (11th Cir.1988), in holding that 

“the at-large election of the probate judge 

is permissible under the Voting Rights Act 

with respect to the judicial aspects of that 

office.” :' Id at 1432 n. 1. 

The positions at issue in Butts and Dal- 

las County, and the position not considered 

in Port Arthur, were what can be viewed 

11. The district court in Clark v. Edwards, 725 
F.Supp. 285 (M.D.La.1988), also held that the 
at-large system of electing trial judges in 
Louisiana impermissibly diluted black voting 
strength, assuming that districts with more 
than one judicial position were multi-mem- 
ber districts. In Haith v. Martin, 618 F.Supp. 
410 (D.C.N.C.1985), aff'd mem., 477 U.S. 901, 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

as traditional single member offices, i.e., 

mayor, city council president, single pro- 

bate judge, or comptroller. There was only 

one of each office in a given geographical 

area, and no problem with overlapping jur- 

isdictions. Here, there are many judges 

with overlapping jurisdictions.  None- 

theless, each acts alone in wielding judicial 

power, and once cases are assigned there is 

no overlap in decision-making. 

Indeed there are special courts created 

within some judicial districts that empha- 

size the single-member nature of the of- 

fices, for not all of the judges handle the 

same type of work. Some are courts of 

general jurisdiction, but some judges are 

elected specifically to handle juvenile cases, 

or family law cases, or criminal cases. To 

that extent they are separate offices, just 

as county treasurer and sheriff are differ- 

ent positions. Of course, many of the 

judges do handle the same type of cases 

and the cases are assigned to any of these 

judges within a given geographical jurisdic- 

tion. There are many of them within a 

geographical area, and the plaintiffs would 

find this dispositive. A United States dis- 

trict court in Alabama has held that Ala- 

bama trial courts similar to the Texas 

courts are multi-member positions. 

Southern Christian Leadership Conf. wv. 

Siegelman, T14 F.Supp. 511 (M.D.Ala. 

1989). The court considered Dallas Coun- 

ty and Butts, but concluded that 

Although neither court expressly defined 

the term ‘single-member office,” it is 

106 S.Ct. 3268, 91 L.Ed.2d 559 (1986), the 
district court referred to the superior court 
judges in North Carolina, also trial judges, as 
“designated seats in multi-member districts.” 
Id. at 414. The issue there was not a viola- 
tion of Section 2, however, but whether Sec- 

tion 5 of the Act applied to such judicial 
elections, requiring preclearance of changes. 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

clear to this court that the phrase, as 

used in those cases, refers to a situation 

where under no circumstances will there 

ever be more than one such position in a 

particular geographic voting area. 

Siegelman, 714 F.Supp. at 518. 

The court found that exclusive authority 

alone does not define single-member offi- 

cial. Id. We disagree with this view of 

multi-member versus single-member office 

and agree with the argument made by de- 

fendants in Siegelman that 

the hallmark of a single member office, 

as [the Butts and Dillard v. Crenshaw 

County, 831 F.2d 246 (11th Cir.1987) ] 

courts use the term, is not the fact that 

the office is traditionally held by only 

one individual but, more importantly, the 

fact that the full authority of that office 

is exercised exclusively by one individual. 

714 F.Supp. at 518. 

Viewing district judges as members of a 

multi-member body is flawed in concept. 

Before any suits are filed, before any cases 

are assigned, there is a group of judges 

with concurrent jurisdiction, and plaintiffs 

maintain that this group should have mi- 

nority members, so that minorities’ views 

and concerns are considered by the judges 

who decide important issues in their lives. 

The problem is that once a case is assigned, 

it is decided by only one judge. The other 

judges have absolutely no say over the 

disposition of that case, and no influence 

over the deciding judge. One commentator 

has described the Texas system as a “one- 

judge, one court organization at the trial 

level, with rigid jurisdictional lines and 

with each judge largely independent of any 

supervisory control, except by way of ap- 

pellate review.” Guittard, Court Reform 

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

  

273 

C. 

It is implicit in Gingles that the effect of 

election practices must be considered after 

taking the underlying definition of the of- 

fices of state government as given. Even 

the sharply divided Gingles Court agreed 

that its inquiries were only into the legality 

of at-large methods of electing representa- 

tives to a larger governing body. Section 2 

does not grant federal courts the authority 

to disregard the states’ basic arrange- 

ments. We would not rest on inference to 

support such a grant of authority. -It 

would run counter to fundamental concepts 

of federalism: 

As broad as the congressional enforce- 

ment power is [under the fifteenth 

amendment], it is not unlimited. Specifi- 

cally, ... the power granted to Congress 

was not intended to strip the States of 

their power to govern themselves or to 

convert our national government of enu- 

merated powers into a central govern- 

ment of unrestrained authority over ev- 

ery inch of the whole Nation. 

Oregon v. Mitchell, 400 U.S. 112, 128, 91 

S.Ct. 260, 266, 27 L.Ed.2d 272 (1970). 

The State of Texas has chosen to have 

trial judges who wield full judicial authori- 

ty alone, a structure we must accept. Sub- 

districting would not create an equal oppor- 

tunity for representation in decision-mak- 

ing, for 

[there can be no equal opportunity for 

representation within an office filled by 

one person. Whereas, in an election to a 

multi-member body, a minority class has 

an opportunity to secure a share of rep- 

resentation equal to that of other classes 

by electing its members from districts in 

which it is dominant, there is no such 

 



  

274 

thing as a “share” of a single-member 
office. 

Butts, 779 F.2d at 148. What subdistrict- 

ing does, rather than provide minorities 

with representation in all decisions, is to 
simply allocate judges, and thus judicial 

decisions, among various population 

groups. The Voting Rights Act does not 
authorize such allocation. It cannot be 

made to authorize allocating judges by sim- 

ply restating the office of district judge as 

a shared office or by asserting that the 
“function” of an office is not relevant. 

Saying that district judges in fact share a 
common office that can be subdistricted 

does not make it so. Nor does the asser- 

tion that function is not relevant make 

sense. Function is relevant to the thresh- 

old question of what features of the state 

arrangement define the office. 

These judges all hear and decide their 

own docket of cases, and their character as 

single-office holders instead of members of 

a multi-member body is emphasized by the 

problems inherent in attempting to break 

the linkage of jurisdiction and elective 

base. To do so may well lessen minority 

influence instead of increase it, surely not 

what Congress intended when it enacted 

the Voting Rights Act or its amendments. 

The current system of electing district 

judges at least permits voters to vote for 

each and every judicial position within a 

given district, generally a county. It is 

more likely, therefore, that minority voters 

will have some influence on the election of 

each judge. Under the district court’s or- 

der, each voter would have the opportunity 

to vote for only one judge in each district, 

the judge whose position was assigned to 

the subdivision. At the same time, a mi- 

12. Moreover, cases without minority parties, 

but nonetheless concerning issues important 
to minority groups, would have an 84.75% 

  

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

nority litigant will be assigned at random 

to appear before any district judge in the 

county. Under the district court’s orders it 

is much more likely than not that a minori- 

ty litigant will be assigned to appear before 

a judge who is not elected from a voting 

district with greater than 50% minority 

population. Instead, the great majority of 

district judges will be elected from new 

voting subdistricts with negligible minority 

populations and, consequently, negligible 
minority political influence on the outcome 

of those elections. Under the new order 

requiring election of judges from subdis- 

tricts, 9 of the 59 judicial positions in Har- 

ris county would be elected from minority- 

dominated subdivisions. Minority voters 

would have very little influence over the 

election of the other 50 judges, for the 

minority population is concentrated in 

those 9 subdivisions. When minority mem- 

bers are litigants, however, they would not 

necessarily appeal before one of the judges 

elected from a minority-dominated subdivi- 

sion. Instead, a minority member would 

have an 84.75% chance of appearing before 

a judge who has little direct political inter- 

est in being responsive to minority con- 

cerns.!? The minority member would have 

a 98.3% chance of appearing before a judge 

in whose election he had not been able to 

vote. This is not like the situation in Chzi- 

som, where the judges were all part of one 

body, and every case that went to the Loui- 

siana Supreme Court was heard by all of 

the judges, so every individual litigant 

from the state of Louisiana was assured 

that a judge for whom he had an opportuni- 

ty to vote would hear his case. 

Requiring subdistricting for purposes of 

electing district judges, unlike other of- 

chance of being assigned to a judge with no 
accountability to minorities living in the 
county. 

 



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

fices, would change the structure of the 

government because it would change the 

nature of the decision-making body and 
diminish the appearance if not fact of its 

judicial independence—a core element of a 

judicial office. Trial judges would still ex- 

ercise their full authority alone, but that 

authority would no longer come from the 

entire electorate within their jurisdictional 

area. Subdistricting would result in deci- 

sions being made for the county as a whole 

by judges representing only a small frac- 

tion of the electorate. This does not occur 

when members of larger bodies are elected 

from subdistricts, for when the body makes 

a decision, the interests of all electors are 

still represented in each decision. When 

the decisions are not made by a group, the 

nature of the decision-making body as rep- 

resentative of all of the electors is funda- 

mentally changed through subdistricting. 

The State of Texas has struck for the es- 

sential and defining quality of indepen- 

dence by defining the office of trial judge 

as a person who judges singly and whose 

power is derived from an electoral base 

equal to jurisdictional base. Trial judges 

are not members of a multi-member body, 

although there are many district judges, 

for the district judges do not decide cases 

as a body. Disregarding the state’s insist- 

ed linkage of elective base and jurisdiction 

for single office holders by subdistricting 

or ignoring their discrete activity, causes a 

fundamental change in the very office of 

district judge, a result not contemplated by 

the Voting Rights Act. These elements 

define the office; they are far more than 

the “manner” of election. 

One can view, the single-official doctrine 

as being no more than a statement of the 

mechanical impossibility of gaining greater 

representation for minorities. This ap- 

proach is simply a resignation to the reality 

  

275 

that if there is only one official, there can 

only be an at-large election. A second view 

is that the single official exception express- 
es far more. This view recognizes that we 

must accept the state’s definition of the 

office, and that where functions are singly 
exercised, providing single-member dis- 

tricts is no more than proportional repre- 

sentation in its most superficial form. 

Some district courts have proceeded with 
the first view, concluding that the single 

official doctrine is inapplicable where more 

than one official was elected at-large by 

the same electorate. It is plain that this 

entire suit rests upon the premise that the 
single official exception reflects no more 

than the reality that there is nothing to 

divide unless there is more than one judge 

in a single county. It is no accident that 

this suit attacks only the nine counties with 
multiple district judges and minority popu- 

lations. But, the right secured to minori- 

ties under Section 2 of the Voting Rights 

Act to not have their vote diluted is ex- 

pressed in the assertion that their interests 

are to be represented in governmental deci- 

sions. Where judges make their decisions 

alone, electing judges from single member 

districts only increases the likelihood that a 

small number of governmental decisions 

will be influenced by minority interests, 

while minority interests will not be repre- 

sented at all in the majority of judicial 

decisions. In this way subdistricting would 

work a fundamental change in the scheme 

of self governance chosen by the state of 

Texas, for it would change the authority 
behind the decisionmaking body of the Tex- 

as courts—and in doing so it would retard, 

not advance the goals of the Voting Rights 

Act. 

In sum, the single-official concept as we 

apply it here, whatever its full import in 

other contexts, is no more than a specific 

 



  

276 

application of the basic principle that analy- 

sis under the Voting Rights Act proceeds 

without changing the state’s definition of 

the office. With the judges acting alone, 

each judge the decision-making body, a co- 

terminous electoral and jurisdictional base 

is a core component of the office. Subdis- 

tricting would change that office in ways 

wholly different from changing the selec- 

tion of members of a governing body as 
distinguished from the body itself. 

D. 

Plaintiffs argue that the state’s interest 

in linking jurisdiction and elective base is 

weakened because in 1985 Texas granted 

authority to counties to provide for the 

election of district judges from smaller geo- 

graphical units. There are two difficulties 

with this argument. First, no county has 

elected to do so, and, second, the change 

only allows the creation of districts smaller 

than a county. It does not purport to 

authorize the election of district judges 

with countywide jurisdiction from districts 

smaller than the county. 

It is also suggested that there is no 

unacceptable appearance of bias (translate, 

you still have a court of law) in the prose- 

cution of claims where one litigant is a 

constituent of a district judge and the other 

is not. The argument continues that such 

a circumstance is presented where one of 

the parties is from another county. This 

suggestion ignores the fact that the state 

recognized that elimination of this risk and 

appearance of bias was essential to the 

office it was creating by an elaborate set of 

1. This Court's history of courageous efforts 
to end racial discrimination in the South are 
well known. See J. Bass, Unlikely Heroes 
(1981). For instance, in 1973 this Court 
handed down a landmark Voting Rights Act 
decision, Zimmer v. McKeithen, 485 F.2d 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

rules controlling venue. Indeed, Texas has 

perhaps the most developed venue practice 

of any of the states, doubtlessly attributa- 

ble to its diversity and size, allowing a 

mini-trial of venue facts. Whether a trial 

proceeds in the plaintiff’s home county in 

El Paso or a defendant’s home county in 

Dallas is of great moment. In sum, the 

intercounty bias argument proves, rather 

than defeats, the point. Avoiding the fact 

and appearance of bias is a powerful state 

interest. There is no corresponding system 

of venue rules for a subdistricted county. 

Rather, as we explained, the state insists 

on linking the elective and jurisdictional 

base. Texas wants a trial judge, not a 

partisan. We are persuaded that Texas 

has a compelling interest in linking jurisdic- 

tion and elective base for judges acting 

alone. By definition there can be no dilu- 

tion from the county-wide election of such 

single officials. 

JOHNSON, Circuit Judge, dissenting: 

Introduction 

Let it be clear at the outset: this case 

presents compelling allegations of racial 

discrimination brought under the United 

States Voting Rights Act by black and 

Hispanic minorities. Congress intended 

the Voting Rights Act to be a key measure 

in its efforts to erase a haunting legacy of 

racial discrimination in the United States. 

The majority and concurring opinions in 

this case, in reasoning inconsistent with 

this Court’s long history of progressive and 

enlightened interpretation of civil rights 

legislation,! seriously cripple this congres- 

1297 (5th Cir.1973) (en banc), aff'd sub nom. 
East Carroll Parish School Board v. Marshall, 
424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 

(197%) (per curiam), which established an 
enlightened set of standards to be applied 
under the Voting Rights Act’s “totality of the 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

sional intent. Despite unmistakable con- 
gressional statements concerning the broad 
scope of the Voting Rights Act, the majori- 

ty and concurring opinions have taken dif- 
ferent directions to achieve the same re- 
sult: they deny minority groups the right 

to challenge discriminatory practices in ju- 

dicial elections. 

The majority opinion is completely isolat- 

ed. No previous court has ever even sug- 
gested that judicial elections might be ex- 
empt from the reach of Section 2 of the 

Voting Rights Act. To the contrary, this 

Court, the United States Court of Appeals 

for the Fifth Circuit, had earlier concluded 
that Section 2 applied to all elections, in- 

cluding judicial elections. Not only does 

the majority opinion reverse this two year 
old precedent, but it also demonstrates a 
shocking lack of concern for the urgently 

argued position of the Attorney General, 

who has consistently maintained that the 
Voting Rights Act reaches all elections. 

The majority’s isolated opinion stands as a 
burning scar on the flesh of the Voting 

Rights Act; the majority opinion is not 

simply wrong, it is dangerous. 

Judge Higginbotham’s concurring opin- 
ion (“the concurrence”) is scarcely removed 

from the majority opinion. Like the major- 
ity opinion, the concurrence is wholly incon- 

sistent with the reasoned decisions of nu- 
merous courts and the established position 

of the Attorney General. The concurrence 

purports to rely upon compelling precedent 
from another federal court. But in truth, 

the concurrence is entirely premised upon a 

single case that is not authority for the 
concurring opinion’s eccentric holding. 

The scar the concurrence would leave on 

the Voting Rights Act is no less injurious 

circumstances” test. The Supreme Court la- 
ter cited Zimmer as the authoritative exposi- 
tion of these standards. See Thornburg v. 

277 

than that the majority inflicts; the concur- 

rence is not only wrong, it too is danger- 

ous. 

Several truths are self-evident from the 

clear language of the statute that had here- 

tofore opened the electoral process to peo- 

ple of all colors. The Voting Rights Act 

focuses on the voter, not the elected offi- 

cial. The Act was intended to prohibit ra- 

cial discrimination in all voting, the sole 

inquiry being whether the political pro- 

cesses are equally open to all persons, no 

matter their race or color. The Act is 

concerned only with the intent of persons 

of “race or color” in casting a ballot; it has 

no interest in the function of the person 

holding the office. Yet, the majority and 

concurring judges carve out a sweeping 

exception to the Act’s intended scope, con- 

cluding that the Voting Rights Act does 

not apply to judicial elections (or at least 

some judicial elections). I refuse to join 

my fellow judges’ purposeful and calculat- 

ed deprivation of the Voting Rights Act's 

ability to eliminate racial discrimination in 

the electoral process. 

THE MAJORITY OPINION 

In 1988 this Court handed down its deci- 

sion in Chisom v. Edwards, 839 F.2d 1056 

(5th Cir.), cert. denied sub nom. Roemer v. 

Chisom, 488 U.S. 955, 109 S.Ct. 390, 102 

L.Ed.2d 379 (1988), which held that Section 

2 of the Voting Rights Act applies to judi- 

cial elections. Today, in an opinion that 

mutilates familiar precepts of statutory 

Gingles, 478 U.S. 30, 36 n. 4, 106 S.Ct. 2752, 
2759 n. 4, 92 L.Ed.2d 25 (1986).  



278 

  

construction,? the majority rudely abandons 

2. Purporting to apply the text of the statute, 
Majority Opinion, slip op. at 250 n. 14, at 
—— n. 14, the majority essentially concludes 
that the term “representative” in Section 2 of 
the Voting Rights Act is synonymous with 
the term “legislator.” To the contrary, the 
majority is not applying the text of the stat- 
ute, but rather it is applying its own novel 
definition of an isolated term appearing on 
one single occasion in the statute. Be that as 
it may, the majority still should never have 
reached the point of literally applying the text 
of the statute. In this Circuit, it is estab- 
lished law that “literal statutory construction 
is inappropriate if it would produce a result 
in conflict with the legislative purpose clear- 
ly manifested in an entire statute or statu- 
tory scheme or with clear legislative history.” 
Almendarez v. Barrett-Fisher Co., 762 F.2d 
1275, 1278 (5th Cir.1985). Conveniently, the 
majority opinion ignored this established 
law, probably because it knew that its “liter- 
al” definition of “representative” was incon- 
sistent with other language in the Voting 
Rights Act and the legislative history of the 
Act. 

On May 27, 1988, a panel of this Court 
denied a Petition for Rehearing and for Re- 
hearing En Banc in Chisom v. Edwards be- 
cause “no member of this panel nor Judge in 
regular active service on the Court ... re- 
quested that the Court be polled on rehearing 
en banc.” (emphasis added). Despite the de- 
nial of rehearing in Chisom concerning the 
applicability of Section 2 of the Voting 
Rights Act to judicial elections, the majority 
now utilizes the grant of en banc considera- 
tion in the instant case to reconsider Chisom. 
Such action, while certainly not prohibited, 
offends the familiar principle of stare deci- 
sis. It cannot be stated too adamantly: the 
majority of this Court is reconsidering a de- 
cision on which, just barely two years ago, 
no member of the Court even suggested hold- 
ing the mandate in order to explore the pos- 
sibility of a need to reconsider the case en 
banc. 

The capricious path the instant case was 
forced to take to accomplish the rejection of 
Chisom v. Edwards is revealing. As late as 
January 11, 1990, just as a special session of 

the Texas legislature was convened, a panel 
of this Court, two members of which are 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

the Chisom precedent. The majority, con- 

now aligned with the majority position, en- 
tered an order staying the judgment of the 
district court in the instant case. The ex- 
press intent of this order was to afford the 
legislature a reasonable time to address the 
issues presented in the federal district court's 
decision. In part, it recited: 

IT IS ORDERED that appellants’ motion 
for stay pending appeal are [sic] GRANTED. 
We do so in order that the State of Texas 
may be allowed a reasonable opportunity to 
address the problem presented by the hold- 
ing of the district court [in the instant case] 
entered November 8, 1989, that the state 
system of selecting judges is invalid as violat- 
ing Section 2 of the Voting Rights Act.... 

That holding, if sustained on appeal, will 
require an organic and wholesale review and 
reconstitution of the Texas judicial selection 
system, a task which should be addressed 
and carried out by the state’s elected repre- 
sentatives, rather than by the federal courts. 
Only if it becomes apparent that the state is 
unwilling to act with measured and appro- 
priate speed in this regard should our courts 
intervene. When the State has had a reason- 
able period within which to address the 
problem presented in a special session of the 
Legislature, the Court will entertain a mo- 
tion to dissolve. That has not yet occurred; 
when it does, we will be amenable to a 
motion to dissolve the stay which we enter 
today. 
League of United Latin American Citizens v. 
Clements, No. 90-8014 (5th Cir. Jan. 11, 
1990) (unpublished). The stay order, which 
cited Chisom and presumed the validity of 
Chisom, remained in effect until March 28, 
1990, when it was dissolved by the panel 

which originally heard the instant case. 
That same day, the members of this Court 

voted to hear the case en banc on an expedit- 
ed schedule. The panel opinion here was 
rendered on May 11, 1990, and the en banc 
Court heard oral arguments on June 19, 
1990. 

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

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

cluding that the Act does not apply to any 

judicial election, delivers a devastating 
blow to the Act’s continuing ability to elimi- 

nate racial discrimination in voting. At 

this stage, there is little reason to revisit in 

detail Judge Higginbotham’s refutation of 

the majority’s attack on Chisom v. Ed- 
wards. It is sufficient simply to reiterate a 

few essential—and well established— 

points. 

Congress enacted the Voting Rights Act 

in 1965 “to rid the country of racial dis- 
crimination in voting.” South Carolina v. 

Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 

803, 812, 15 L.Ed.2d 769 (1966). Since the 
inception of the Act, the Supreme Court 
has consistently interpreted the Act in a 

manner which affords it “the broadest pos- 
sible scope” in combatting racial discrimi- 

nation. Allen v. State Board of Elections, 
393 U.S. 544, 567, 89 S.Ct. 817, 832-33, 22 
L.Ed.2d 1 (1969). Other courts, including 

this Court, have followed the Supreme 

Court's lead. See, e.g, Zimmer wv. 
McKeithen, 485 F.2d 1297 (5th Cir.1973) (en 

banc), aff'd sub nom. East Carroll Parish 
School Board v. Marshall, 424 U.S. 636, 96 

S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per cu- 

riam). As a consequence, the Voting 

Rights Act regulates a wide range of vot- 

ing practices and procedures. See United 

States v. Board of Commissioners, 435 

U.S. 110, 122-23, 98 S.Ct. 965, 974-75, 55 

L.Ed.2d 148 (1978). 

For a resolution of the instant case, it is 

unnecessary to look beyond Section 14(c)(1) 

of the Voting Rights Act, which defines the 

salient word “voting” and describes the 

range of election practices that are encom- 

passed within the regulatory sphere of the 
Act: 

The terms “vote” or “voting” shall in- 

clude all action necessary to make a vote 

effective in any primary, special, or gen- 

279 

eral election, including, but not limited 

to, registration, listing pursuant to this 

subchapter or other action required by 

law prerequisite to voting, casting a bal- 

lot, and having such ballot counted prop- 

erly and included in the appropriate to- 

tals of votes cast with respect to candi- 

dates for public or party office and 

propositions for which votes are received 

in an election. 

42 U.S.C. § 1973] (1982) (emphasis added). 

Can this language in the Act itself be ig- 

nored? It is indisputable that Texas’ elect- 

ed judges are “candidates for public or 

party office.” Thus, by its express terms, 

the Voting Rights Act applies to state judi- 

cial elections. Indeed, this is the only re- 

sult consistent with the plain language of 
the Act. 

Nonetheless, relying on a restrictive defi- 

nition of the single word “representative” 

in Section 2 of the Act, the majority deter- 

mines that the Voting Rights Act does not 

necessarily apply to all “candidates for 

public or party office.” Such a conclusion 

breaches several established canons of stat- 

utory construction. The majority’s restric- 

tive definition of “representative” violates 

the requirement that remedial legislation 

such as the Voting Rights Act be broadly 

construed. See Allen, 393 U.S. at 565, 89 

S.Ct. at 831-32. The majority’s reliance on 

an isolated term violates the requirement 

that a reviewing court examine a statute in 

its entirety. See Duke v. University of 

Texas at El Paso, 663 F.2d 522, 525 (1981), 

cert. denied, 469 U.S. 982, 105 S.Ct. 386, 83 

L.Ed.2d 320 (1984). 

Moreover, the majority’s awkward deci- 

sion violates the requirement that a review- 

ing court avoid statutory interpretations 

that lead to an absurd or inconsistent re- 

sult. See United States v. Turkette, 452  



  

280 

U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 

L.Ed.2d 246 (1981). As just one example of 

the majority opinion’s troubled logic, con- 

sider the majority's crude attempt to distin- 

guish judges from other elected officials. 

The majority repeatedly urges that judges 

are not “representatives” within the com- 

prehension of the Voting Rights Act be- 

cause judges are not advocates, that is, 

judges “speak for and to the entire com- 

munity, never for segments of it and still 

less for particular individuals.” Majority 

Opinion slip op. at 248, at —— (emphasis 

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

majority recognizes that this Court has al- 

ready found that many other elected offi- 

cials are ‘representatives,’ officials who 

also cannot fairly be described as advocates 

for segments of the community or particu- 

lar individuals. Majority Opinion slip op. at 

250 n. 14, at —— n. 14. A county sheriff 

or court clerk, for example, speaks for and 

to the entire community—is responsible for 

and to the entire community. If a county 

sheriff or court clerk, as with a judge, 

attempted to act in a partisan manner, that 

person would be grossly deficient in his or 

her duties. 

It should be clear by this point that the 

majority’s decision is less an attempt to 

interpret congressional intent concerning 

the reach of the Voting Rights Act, and 

more an attempt to effectuate the majori- 

ty’s policy determination that state judicial 

elections should be immune from federal 

congressional interference. Perhaps the 

strongest evidence of the majority's desire 

to supplant the stated aims of Congress 

with its own policy preferences is its con- 

spicuously casual treatment of the position 

of the United States Attorney General. In 

United States v. Board of Commissioners, 

435 U.S. at 131, 98 S.Ct. at 979, the Su- 

preme Court concluded that the Attorney 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

General's interpretation of the Voting 

Rights Act is persuasive evidence of the 

original congressional understanding of the 

Act, “especially in light of the extensive 

role the Attorney General played in draft- 

ing the statute and explaining its operation 

to Congress.” Id. In the present case, the 

Attorney General has filed an amicus curi- 

ae brief which maintains that the scope of 

Section 2 of the Voting Rights Act reaches 

all elections, including judicial elections. 

But remarkably, the majority dismisses the 

Attorney General's position, noting simply 

that it does not seem to “weigh very heavi- 

ly in the scales.” Majority Opinion at 23. 

The application of Section 2 should de- 

pend solely on the fact of nomination or 

election. As the Eleventh Circuit—a Cir- 

cuit which shares this Court’s long tradi- 

tion of enlightened enforcement of federal 

civil rights legislation—has noted, 

“[n]Jowhere in the language of Section 2 

nor in the legislative history does Congress 

condition the applicability of Section 2 on 

the function performed by an elected offi- 

cial.” Dillard v. Crenshaw County, 831 

F.2d 246, 250-51 (11th Cir.1987) (emphasis 

added). By exempting an entire class of 

elected officials from Section 2 simply on 

the basis of their judicial function, the 

majority has not only inextricably placed 

this Court at odds with the conclusions of 

other circuits, but also has struck a dev- 

astating blow to the Voting Rights Act's 

ability to alleviate racial discrimination in 

the voting process. 

IL. 

THE CONCURRENCE 

Judge Higginbotham’s concurring opin- 

ion concludes, and I agree, that the Voting 

Rights Act applies to judicial elections. 

The concurrence, however, is itself serious- 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

ly flawed. Critical examination of the con- 

curring opinion’s construction of the single 

office holder exception reveals the error: * 

the concurrence’s creative interpretation of 

the Voting Rights Act would result in the 

per se exclusion from the reach of the 

Voting Rights Act of elections for the 

greatest part of the judiciary—state dis- 

trict court judges. In a troubling display 

of judicial intervention, the concurrence’s 

result-oriented opinion fails even to ac- 

knowledge the clear purpose of the Act 

evidenced in its language and legislative 

history. 

In adopting the Civil War amendments, 

Congress was propelled by a concern for 

the emasculation of minority voting 

strength through the puissant coupling of 

bigotry with state supported election prac- 

tices. Similarly, a century later, Congress 

enacted the Voting Rights Act for the 

broad purpose of eradicating racial discrim- 

ination in voting across the length and 

breadth of this nation.® In 1982 amend- 

ments to the Act, Congress strengthened 

the Act's promise to ensure minorities 

equal access to the political process. The 

Senate Report accompanying the 1982 

4. The concurrence asserts that there can be 
no dilution of minority voting strength 
where the elected official acts independently, 
regardless of whether there are one or one 
hundred such official posts in the relevant 
district. 

5. See Concurring Opinion slip op. at 266, at 

6. President Ford's poignant words are as 
powerful today, fifteen years later: “the right 
to vote is the very foundation of our Ameri- 
can system, and nothing must interfere with 
this very precious right.” President Gerald 
Ford, Remarks Upon Signing A Bill Extend- 
ing the Vouing Rights Act of 1965 (August 6, 
1975). 

7. The United States Attorneys General, in an 
unbroken chain, have consistently interpret- 

281 

amendments indicates that the Voting 

Rights Act was designed not only to cor- 

rect active discrimination, but to “deal with 

the accumulation of discrimination.” Sen- 

ate Report Accompanying the 1982 Amend- 

ments to the Voting Rights Act at 5, 1982 

U.S.Code Cong. & Admin. News at 182. Es- 

pecially in light of the history and language 

of the Act, it is axiomatic that the relevant 

inquiry centers on the voter —specifically, 

the minority voter—not on the elected offi- 

cial. The Act is, after all, the Voting 

Rights Act. 

Section 2 and the Judiciary 

The majority opinion concludes that state 

district court judges are not ‘“representa- 

tives” within the comprehension of Section 

2 of the Voting Rights Act. However, as 

the concurrence aptly notes, the term “rep- 

resentative” in Section 2 is not synonymous 

with “legislator.” Congress intended the 

Voting Rights Act to prohibit and alleviate 

discrimination in all voting, a term which 

Congress defined to include any action nec- 

essary to make a vote effective in any 

election with respect to any candidate for 

public or party office.” From the language 

ed the Voting Rights Act broadly, and, more 
recently, have interpreted Section 2 to reach 
elected judges. At the time the original Vot- 
ing Rights Act was passed in 1965, the Attor- 
ney General stated that “every election in 
which registered voters are permitted to vote 
would be covered.” Voting Rights: Hearing 
Before Subcommittee No. 5 of the House Judi- 
ciary Committee, 89th Cong. 1st Sess. 21 
(1965) (emphasis added). In both Chisom v. 
Edwards, 839 F.2d 1056 (5th Cir.), cert. de- 
nied sub nom. Roemer v. Chisom, 488 U.S. 
955, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988), 

and in the instant case, the Attorney General 

filed an amicus brief in which he maintains 
that the scope of Section 2 reaches all elec- 
tions, including judicial elections. 

Additionally, in a recent Section 5 preclear- 
ance review, the Assistant Attorney General  



  

282 

of the Act as a whole, it is clear that the 

term “representative” corresponds with the 

term “candidate.” It is also clear that a 

contestant in a judicial election is a candi- 

date for public office. Thus, the language 

and reasoning of the concurring opinion is 

sound to the limited extent it urges that 

neither the words nor the legislative histo- 

ry of the Act indicate any intention on the 

part of Congress to exempt judicial elec- 

tions from coverage. 

This Court has previously addressed the 

question of the Act’s application to judicial 

elections. In Chisom v. Edwards, a case 

which examined the application of Section 2 

in the context of a challenge to Louisiana’s 

system of electing state supreme court jus- 

tices, a panel of this Court held that Sec- 

tion 2 applies with equal force to judicial 

elections. As in the concurring opinion in 

the instant case, the outcome in Chisom 

hinged upon an examination of both the 

plain language and the legislative history 

of the Act. 

Despite a basic agreement with this 

Court’s earlier analysis in Chisom, the con- 

currence here attempts to shift the focus of 

the Voting Rights Act from the minority 

voter to the elected official. This Court 

denied preclearance of a proposed majority 
vote, designated post, at-large method of ju- 
dicial elections in Georgia similar to that 
under attack in the instant case, concluding 

in part: 
Our review of a broad range of evidence in 
this regard indicates that polarized voting 
generally prevails in all of the superior court 
circuits now under review and there is a 
consistent lack of minority electoral success 
in at-large elections. Thus, it appears that, 
in the totality of the circumstances, black 
voters in these circuits have a limited oppor- 
tunity to elect their preferred candidates. ... 

In addition, the state has not shown how 

its interests are served by circuitwide elec- 
tions in many of the circuits now at issue 
where the at-large election feature is in 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

recognized in Chisom that the term “repre- 

sentative” for purposes of the Voting 
Rights Act may be defined as anyone se- 

lected by popular election from a field of 

candidates to fill an office.® The definition 
of “representative” in Chisom intertwines 

with the statute’s definitions of “vote” and 

“voting” and assures the Act’s application 
to all elections. The concurrence in the 

present case, however, subtly constricts 

this definition. While acknowledging that 

Congress used the terms “candidate” and 
“representative” interchangeably when 

drafting the Act, the concurrence defines 
“representative,” at least within the nar- 

row confines of Texas elections for district 

judges, as “one who is chosen to be respon- 

sive to the people and to represent their 
interests in decisions.” Concurring Opin- 
ion slip op. at 258, at ——. The concur- 

rence’s definition attempts to precipitously 

limit the scope of the Act’s remedial provi- 

sions, emphasizing the position of the of- 
fice-holder over the status of the voter. 

The anticipated responsive nature of a par- 

ticular office (or office holder) is of abso- 

lutely no consequence to the initial and 

dispositive question of whether the office is 

filled through the use of an electoral pro- 
cess. Nonetheless, the concurrence’s defi- 

apparent violation of Section 2 of the Vot- 
ing Rights Act. 

Letter from Assistant Attorney General John 
R. Dunne to Georgia Attorney General Mi- 
chael J. Bowers (Apr. 25, 1990). 

8. Chisom, 839 F.2d at 1060. 

9. It is true that one of the Senate Report 
factors that may be probative in a vote dilu- 
tion case to establish a Section 2(b) violation 
is “whether there is a significant lack of 
responsiveness on the part of elected offi- 
cials to the particularized needs of the mem- 
bers of the minority group.” S.Rep. at 29, 
1982 U.S.Code Cong. & Admin.News at 207. 
However, the Senate Report emphasizes that 
“[ulnresponsiveness is not an essential part 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

nition is necessary to its “single official” 

argument—which is based in part on an 

examination of the duties and functions 

performed by a trial judge once he or she is 

in office—and the argument that the State 

has a compelling interest in retaining the 
current system. 

The Minority Voter 

Despite Congress’ clear statement that 
the Voting Rights Act applies to all voting, 

the concurrence, through rhetoric sur- 

rounding the term ‘representative,’ at- 

tempts to shift attention from the one cast- 

ing a vote to the one for whom the vote is 

cast. Not one word or thought contained 

in Section 2(a) or (b) supports, or is sug- 

gested by the concurrence in support, of 

this effort. The Voting Rights Act was 

of plaintiff's case.” Id. at n. 116, 1982 U.S. 

Code Cong. & Admin.News at 207. In fact, 

in Clark v. Edwards, 725 F.Supp. 285 (M.D. 
La.1988), a case involving a vote dilution 
challenge to the use of multi-member dis- 
tricts and at-large voting to elect Louisiana 
district court, family court, and court of ap- 
peals judges, the district court remarked that 
the element of responsive representation 
simply is not a consideration in a judicial 
election case: 

The Senate Report ... also suggested 
that lack of responsiveness on the part of 
elected officials to the particularized need 
of the members of the minority group 
might be a factor in some cases.... That 
obviously is not a factor in this case since 
the only response which a member of the 
judiciary may make is to rule on all mat- 
ters fairly and impartially, without favor- 
ing or being prejudiced against any group. 

Id. at 301. Consequently, while a state's in- 
terest in retaining a system which exudes an 
appearance of impartiality may be con- 
sidered among the totality of the circum- 
stances, the converse, actual responsiveness, 
should not be relevant to a claim of vote 
dilution in the context of a judicial election. 

10. Section 2, as amended in 1982, now pro- 

vides: 

283 

designed to eradicate discrimination in vot- 
ing, and the essential inquiry is whether 

the political processes leading to the cast- 
ing of the ballot are equally open to all 

persons, no matter what their race or color. 

Nothing in the language of Section 2 

suggests that a reviewing court should con- 

centrate on the type of election under dis- 

pute—whether it is for a mayor, an alder- 

man, a legislator, a constable, a judge or 

any other kind of elected official. Rath- 

er, the sole focus of Section 2 is the minori- 

ty voter—specifically, whether the minority 

voter has been allowed the opportunity to 

participate fully in the democratic process. 

Nowhere in the language of Section 2 

nor in the legislative history does Con- 

gress condition the applicability of Sec- 

tion 2 on the function performed by an 

(a) No voting qualification or prerequisite 
to voting or standard practice, or procedure 
shall be imposed or applied by any State or 
political subdivision in a manner which re- 
sults in a denial or abridgement of the right 
of any citizen of the United States to vote on 
account of race or color, or in contravention 
of the guarantees set forth in section 
1973b(f)(2) of this title, as provided in sub- 
section (b) of this section. 

(b) A violation of subsection (a) is estab- 
lished if, based on the totality of circum- 

stances, it is shown that the political pro- 
cesses 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 pro- 
cess and to elect representatives of their 
choice. The extent to which members of a 
protected class have been elected to office in 
the State or political subdivision is one cir- 
cumstance which may be considered: Pro- 
vided, That nothing in this section establish- 
es a right to have members of a protected 
class elected in numbers equal to their pro- 
portion in the population. 
42 US.C. § 1973 (1982).  



  

  

284 

elected official.... Once a post is open 

to the electorate, ... if it is shown that 

the context of that election creates a 

discriminatory but corrigible election 

practice, it must be open in a way that 

allows racial groups to participate equal- 

ly. 

Dillard v. Crenshaw County, 831 F.2d 

246, 250-51 (11th Cir.1987).11 

The instant case reveals an electoral 

scheme which is “discriminatory but corri- 

gible.” Whenever a number of officials 

with similar functions are elected from 

within a discrete geographic area, there 

exists the inherent potential for vote dilu- 

tion. The concurrence, however, ignores 

this verifiable fact, and concludes that, be- 

cause the full authority of the elected posi- 

tion is exercised exclusively by one individ- 

ual, there can be no impermissible dilution 

of the minority vote. 

The Voting Rights Act is not concerned 

with the power and authority vested in the 

elected office. It is the value and efficacy 

of the political process accorded the voter, 

not the office holder, which is secured by 

statute. The Supreme Court’s decision in 

Thornburg v. Gingles? stressed Congres- 

sional concern over the submergence of 

minority votes as a result of significant 

white bloc voting. The express language 

of Section 2(b), which looks only to the 

“political processes leading to nomination 

or election” and to whether minority mem- 

bers ‘have less opportunity than other 

members of the electorate to participate in 

11. This Court, in Chisom, stressed the sound- 
ness of the Dillard court's reasoning. Chi- 
som, 839 F.2d at 1060. 

12.478 U.S, 30, 106 S.Ct. 2752, 92 1..Ed.2d 25 
(1986). 

13. Congress has acknowledged that, depend- 
ing on whether the right or the wrong ques- 
tion is posed, courts may reach a conclusion 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

the political process and to elect represent- 

atives of their choice,” emphasizes this 

Congressional concern on the voter and not 

the elected official. Congress focused in 

Section 2 on the elimination of discrimina- 

tion in voting (thus the title of the Act), 

and on the creation of minority opportuni- 

ties for electoral success. See Gingles, 478 

U.S. 30, 48, 106 S.Ct. 2752, 2765, 92 L.Ed.2d 

25 (1986); Haith v. Martin, 618 F.Supp. 

410, 413 (E.D.N.C.1985), aff’d, 477 U.S. 901, 

106 S.Ct. 3268, 91 L.Ed.2d 559 (1986) (the 

Act applies “to all voting without any limi- 

tation as to who, or what, is the object of 

the vote’) (emphasis in original). 

The concurrence asserts that the essen- 

tial right secured to minorities under Sec- 

tion 2 is the right to have “their interests 

represented in governmental deci- 

sions.” Concurring Opinion slip op. at 

275, at ——. In this way, the concurrence 

bolsters its argument that creating smaller 

districts in multi-seat counties would create 

a perverse result by lessening “minority 

influence” over the decisions reached in 

lawsuits. Going further afield, the concur- 

rence expresses concern that under a sys- 

tem such as that authorized in the district 

court’s interim plan, there is a high proba- 

bility that a minority voter appearing in 

court will have his or her case heard by a 

judge whom he or she had no hand in 

electing. 

The concurrence’s discussion approaches 

the perceived problem from the wrong 

end; > again, quite simply, the focus 

which is totally anathema to the intent of the 
legislature. See, e.g., S.Rep. at 28 (discussing 
the “wrong test” imposed by the intent test). 
The concurring opinion’s rear-ended ap- 
proach can best be illustrated through the 
use of another question: Does the Act guar- 
antee that minority interests are represented 
or that minorities have access to the political 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

should be on the rights of the voter, not 

the litigant. The essential inquiry is 

whether the minority vote is diluted— 

whether minority citizens have an equal 

chance of electing candidates of their 

choice. As the concurrence acknowledges, 

the standard is whether the political pro- 

cesses are equally open to participation. 

The focus of the 1982 legislative history of 

the Act, the 1985 amendment, and Gingles 

is on electoral opportunities and success. 

The concurrence refuses to acknowledge 

the preeminence, within the context of the 

Voting Rights Act, of the efficacy of the 

minority vote. The concurrence notes that, 

because all registered voters in the county 

vote for all the judges, “minority voters 

have some influence on the election of each 

judge.” Concurring Opinion slip op. at 

274, at ——. This statement entirely 

avoids the issue: the instant case is before 

this Court because minority voters have 

asserted and proven that any influence 

they may potentially have as a cohesive 

voice—whether as to the election of one 

judge or several—is submerged at the bal- 

lot box by white bloc voting. 

Even more disturbing, however, is the 

concurrence’s confusion of the minority as 

process? While it is undoubtedly presumed 
that an elected official will represent the 
desires of the voters, the Voting Rights Act 
does not speak to such a presumption. 
While it may seem that the two questions are 
simply different sides of the same coin, the 
distinction is one which the legislature has 
contemplated. If the concurrence’s state- 
ment that the “right secured to minorities 
under Section 2 of the Voting Rights Act to 
not have their vote diluted is expressed in the 
assertion that their interests are to be repre- 
sented in governmental decisions” were cor- 
rect, this would lead to the absurd conclu- 
sion that a plaintiff could, pursuant to the 
Voting Rights Act, bring to task an elected 
official who has not, during his tenure in 

285 

voter and the minority as litigant. This 

confusion is best illustrated by the concur- 

rence’s concern that, under a single mem- 

ber districting scheme such as that imposed 

by the federal district court’s interim plan, 

“a minority member would have an 84.75% 

chance of appearing before a judge who 

has no direct political interest in being re- 

sponsive to minority concerns.” Id. slip op. 

at 274, at ——. The right of minorities to 

an equal opportunity to elect the candidates 

of their choice encompasses more far- 

reaching effects than the statistical proba- 

bility that a minority litigant will appear 

before a judge of like race or color.* De- 

spite the progress achieved under federal 

and state civil rights statutes, minorities in 

this country are far from free of the linger- 

ing legacy of racial discrimination, even at 

the ballot box. 

The Function of Function 

When juxtaposed against the express 

language of the Act, a test which requires 

an examination of the function of the elect- 

ed official is inherently suspect by virtue of 

its obvious judicial invention. As one court 

has emphatically noted, 

office, given proper deference to minority 
interests. 

14. Black and Hispanic judges serve as role 
models for other minority group members, 
who may not have envisioned a legal or 
judicial career as a real possibility in the 
past. In addition, minority electoral victo- 
ries encourage other minority members to 
participate in the political process by voting 
and by running for office. Persistent minor- 
ity defeat, on the other hand, leads to apathy 
among minority voters and a feeling of ex- 
clusion from the opportunity to join in the 
process of self-government. To assert that 
these interests are any less tangible because 
of the nature of the elected office is to per- 
vert the very core of the Voting Rights Act.  



      

286 LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

[nJowhere in the 239 pages of the [Sen- 

ate] Report is there any indication what- 

soever that Congress intended the Vot- 

ing Rights Act to apply to only particular 

types of elections. Rather, the entire 

Report indicates that the 1982 

amendment was intended to effect an 

expansive application of the Act to state 

and local elections. 

Southern Christian Leadership Confer- 
ence v. Siegelman, 714 F.Supp. 511 (M.D. 

Ala.1989). The title or duties of an elected 

office are inconsequential to the fundamen- 

tal question of whether, due to significant 

white bloc voting, the votes of a cohesive 

minority group are consistently submerged 

and rendered ineffectual to elect the minor- 

ity’s preferred candidate. 

The concurrence opines that “[fJunction 

is relevant to the threshold question of 

what features of the state arrangement 

define the office.” Concurring Opinion slip 

op. at 274, at ——. This statement in its 

broadest sense is undoubtedly true. In the 

context of the Voting Rights Act, however, 

the compelling question is at what point 

that function will be examined. The Act's 

focus on the minority voter reinforces the 

proposition that the function of the elected 

official is only relevant to an examination 

of whether, under the totality of the cir- 

cumstances, a Section 2 violation has been 

15. In fact, the concurrence concedes that 
“section 2, if a violation is found, can lead to 
the dismantling of an entire system of voting 
practices that may have been in place for 
many years.” Concurring Opinion slip op. at 
268, at ——. 

16. The concurrence repeatedly argues that 
affording the minority plaintiffs relief in the 
instant case would totally dismantle the trial- 
level judicial system which Texas has chosen 
to implement. The torch has already de- 
stroyed this straw man; as the concurrence 

established, not whether Section 2 is appli- 
cable. 

To focus primarily on the function of the 
official during the initial analysis of a Vot- 
ing Rights Act claim is to ignore the essen- 
tial inquiry of the Act: “whether, as a 
result of the challenged practice or struc- 
ture, the fundamental right of minorities to 
elect candidates of their choice and to par- 
ticipate equally in the political process has 
been violated.” Senate Report at 28, 1982 
U.S.Code Cong. & Admin.News at 205, 206 
(emphasis added). The quoted language 
indicates that, contrary to the concurring 
opinion’s assertions, a reviewing court is 
not bound to accept a state’s governmental 
plan if that plan in fact results in the illegal 
submergence of minority votes.!® If defer- 
ence to the function of an official were in 
fact required, courts would have been act- 
ing contrary to the law since the very ori- 
gin of voting rights litigation. Surely the 
imposition of single member districts in a 
judicial context treads no more upon a 
state’s electoral scheme than the now fa- 
miliar court-ordered displacement of well- 
entrenched at-large election schemes for 
legislative bodies.!® 

Vote Dilution and 
Single-Member Offices 

The concurrence, characterizing Texas 
district court judges as single officehold- 
ers,!” concludes that no violation of Section 

has pointed out, Texas has structured its 
government such that elected trial judges of- 
ten wield their power independently. Even 
if single member districting should be the 
remedy ultimately imposed in the instant 
case, this fundamental characterization 
would not be altered. 

17. A court reviewing a claim of vote dilution 
must look to the plaintiffs and whether their 
votes, although cast, are impotent. The 

plaintiffs’ success depends on an adequate 
demonstration of vote dilution. This task



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 287 

2(b) can be shown because “each judge 
holds a complete judicial office,” and there 
can be no share of such a single-member 
office. Concurring Opinion slip op. at 270, 
at ——. This application of the so-called 
“single officeholder exception” is entirely 
without support. 

The concurrence relies primarily on the 
Second Circuit's opinion in Butts v. City of 
New York, 779 F.2d 141 (2d Cir.1985), 
which examined New York’s primary run- 
off election law. The contested New York 
law provided that if no candidate for may- 
or, city council president, or comptroller 
received more than forty percent of the 
vote in a party primary, then a run-off 
election is held between the two candidates 
receiving the most votes. The district 
court, concluding that the totality of the 
circumstances demonstrated a Section 2 vi- 
olation, found in favor of the minority 
plaintiffs. The Second Circuit reversed, 
noting that 

[t]he concept of a class’s impaired op- 

portunity for equal representation [can- 

may be impossible where there is only one 
office at issue in the relevant jurisdiction 
because the election of an official to such an 
office, with unique responsibilities over a 

discrete geographical area, is unlikely to 
have dilutive potential. In short, no divisible 

alternative can be made. In the instant case, 

however, several similar, if not identical, po- 

sitions are sprinkled throughout a relevant 
geographic area, presenting the likely poten- 
tial for vote dilution. 

The concurring opinion reaches the tenuous 
conclusion that Congress intended Section 2 
to prohibit the discriminatory dilution of mi- 
nority voting strength when minorities are 
attempting to elect appellate court judges, 
but that Section 2(b) can never reach the 
at-large elections of trial judges—regardless 
of whether one or one hundred judges are 
elected from the same district—because the 
latter officials decide controversies indepen- 
dently. There is no support for this conten- 
tion in the words of the Act, in the legislative 

not be] ... uncritically transferred] 

from the context of elections for multi- 

member bodies to that of elections for 

single-member offices.... [T]here is no 

such thing as a “share” of a single-mem- 

ber office. 

Butts, 779 F.2d at 148. The concurring 

opinion rests squarely—and solely—on this 

brief passage from Butts; examination of 

the particular facts in Butts, however, re- 

veals that this passage provides absolutely 

no support for the concurrence. 

In Butts, the voting district consisted of 

a municipality. From this voting district, 

three positions were filled by election. The 

three positions were the offices of (1) may- 

or, (2) city council president, and (3) comp- 

troller. Concluding that it is impossible to 

capture a “share” of a single member of- 

fice, the Second Circuit held that the con- 

tested electoral law did not trigger a vote 

dilution analysis and therefore could not 

violate Section 2(b).!# The instant case, on 

history of Section 2, nor in logic for this 
result-oriented contrivance. 

18. The Butts rule that a single-member office 
is not physically divisible has been implicitly 
rejected in Carrollton Branch of NAACP v. 
Stallings, 829 F.2d 1547 (11th Cir.1987), cert. 
denied sub nom. Duncan v. Carrollton, 485 
U.S. 936, 108 S.Ct. 1111, 99 L.Bd.2d 272 
(1988). In Stallings, plaintiffs challenged the 
one-person form of county commission 
government in Carroll County, Georgia, be- 
cause it diluted minority voting strength and 
lessened the opportunity of black persons in 
the county to participate in the electoral pro- 
cess. This one-person system had been in 
effect since 1953. The Eleventh Circuit re- 
versed the judgment in favor of the defen- 
dants, holding that the district court had 

applied the incorrect legal standard (in light 
of Gingles) by failing to give the proper 
weight to the two most important factors in 
a Section 2 vote dilution claim: (1) the ex- 
tent to which minorities had been elected,  



  

  

288 

the other hand, involves the election of 

multiple judges to virtually identical posi- 

tions in one geographic area, with each 

judge exercising autonomy over his or her 

particular office. The concurrence incor- 

rectly extends Butts’ reasoning to conclude 
that if minority groups are unable to elect 

their preferred candidate to these auton- 
omous positions, the result is simply a con- 

sequence of the political process and not 

the result of vote dilution. 

Butts stands for nothing more than the 
unremarkable proposition that in certain 
electoral situations, there exists only one 

relevant office for the whole electorate. In 

Butts, one of the offices at issue was the 

position of mayor. The Second Circuit rea- 
soned that unlike the electorate which se- 

lects candidates to fill the legislature, the 

electorate which selects a candidate to fill 
the mayoralty cannot be subdivided into 

districts. In holding that a mayoral elec- 

tion cannot be the basis of a vote dilution 

claim, Butts thus focuses on the electorate 
and whether the electorate can be subdivid- 
ed; it does mot focus on the official and 

whether the official or his office can be 

subdivided. 

On a cursory examination of the concur- 

ring opinion, its attempted expansion of the 

Butts rationale might seem plausible. This 

superficial plausibility, however, is what 

makes the concurring opinion so danger- 

ous; it has the potential to seduce the 

unwary into an interpretation of the Voting 

Rights Act that would frighteningly limit 

and (2) the existence of racially polarized 
voting. Id. at 1555. 

In its brief discussion of Stallings, the con- 
currence mischaracterizes the Eleventh Cir- 
cuit’'s analysis, implying that the reversal 
turned only on the presence of evidence indi- 
cating a discriminatory intent. In fact, the 
Eleventh Circuit devoted most of its discus- 
sion to an analysis of the “effects” test of 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

the applicability of the Act. The concur- 

rence’s understanding of the “single office- 

holder exception” is seriously flawed, and 

must not be allowed to do further damage. 

In its broadest sense, the concurrence’s 

conception of the “single officeholder ex- 

ception” states absolutely nothing. Every 

officeholder is a single officeholder; no 

position is shared by more than one person. 

Every officeholder exercises complete au- 

thority over the duties of his or her office. 

To say that a district judge in Texas exer- 

cises full responsibility over his office sim- 

ply does not advance the analysis. Every 

state legislator exercises full responsibility 

over his or her office; in that respect the 

legislator is no different from a judge. Ev- 

ery county sheriff exercises full responsi- 

bility over his or her office; in that respect 

the county sheriff is no different from a 

judge. 

The problem with the concurrence’s sin- 

gle officeholder analysis is that it misdi- 

rects the focus of the inquiry. The ques- 

tion is not whether a judge can be subdivid- 

ed, as the concurrence posits, but rather 

whether the judiciary can be subdivided, 

or more precisely, whether the electorate 

that selects the members of the judiciary 

can be fairly subdivided such that the votes 

of minority voters within the electorate are 

not submerged in a bloc of white votes. 

The focus must be on the electorate, and 

not on the individuals who are chosen by 

those voters. 

Section 2 and Gingles, and to the district 
court's findings as to whether the single- 
member scheme resulted in discriminatory 
vote dilution. The Eleventh Circuit reversed 
the district court’s judgment based both on 
its treatment of the plaintiffs’ constitutional 
challenge, and on its treatment of the Sec- 
tion 2 challenge as well. 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

Nonetheless, in an unprecedented exam- 

ple of judicial creativity, the concurrence 

attempts to expand the Butts rule by au- 

thorizing an examination of a trial court 

judge’s role as a sole decisionmaker.!? 

Such an expansion flies in the face of con- 

gressional intent that the Act liberally ap- 

ply to all forms of voting. The concur- 

rence does not do justice to the spirit of the 

Voting Rights Act by attempting to expand 

Butts to a situation in which several virtu- 

ally identical positions are elected by the 

same electorate to serve the same geo- 

graphic area. 

Whether an office-holder wields his pow- 

er in an individual or collegial manner is 

simply not the relevant inquiry. Butts, the 

case on which the concurrence hinges, was 

not based on a “collegial decisionmaking” 

rationale, nor was this concept even dis- 

cussed. The Butts exception is premised 

simply on the number of officials being 

elected (one), the unique responsibilities of 

that office, and the impediment to subdivid- 

19. The concurrence heavily relies on its con- 
clusion that the full authority of a trial 
judge's office is exercised exclusively by one 
individual. This conclusion is at odds with 
the true structure of the judicial system in 
Texas. For example, administrative matters 
are handled through a collegial decision- 
making process by the district judges within 
the county. Such matters include the elec- 
tion of a local administrative judge, the ap- 
pointment of staff and support personnel, 
the adoption of local rules of administration, 

the adoption of local rules and the exercise 
of supervisory authority over the clerk's of- 
fice. See Tex.Govt.Code Ann. § 74.091 et 
seq. (Vernon 1988). Furthermore, the 
judges, functioning together as a collegial 
body, are charged with the responsibility of 
selecting by majority vote a county auditor. 
Id. § 84.001 et seq. Moreover, the judges 
share authority over administration of the 
caseload. In Harris County, for example, 
fifty-nine district judges have overlapping au- 
thority to handle the heavy caseload of the 

289 

ing that single position so that minority 
voters have the opportunity to elect a 
“share.” In the instant case, however, this 
Court is not concerned with the election of 
one single member position; rather, this 
Court is concerned with the election, within 
discrete geographic areas, of as many as 
fifty-nine judges with virtually identical 
functions. The instant case is unlike 
Butts; there is no physical impediment to 
elections from smaller representative ar- 
eas. 

One court has already specifically ad- 
dressed the problem with which we are 
faced. In Southern Christian Leadership 

Conference v. Siegelman, 714 F.Supp. 511 
(M.D.Ala.1989), the court rejected the appli- 

cation of Butts to the election of several 
trial judges from a single county.2? 

In effect, the at-large boundaries [in 
Butts ] coincide with the only “district” 

boundaries possible; because there is 
only one position to be filled, it becomes 
impossible to split up the jurisdiction any 
smaller. The concept of vote dilution is 

district. Similarly, jury selection, case as- 
signment, and record retention are handled 
on a county-wide basis. Furthermore, cases 
can be freely transferred between judges and 
any judge can work on any part of a case 
including preliminary matters. One district 
judge may, therefore, find his or her hands 
tied—or greatly assisted—by an earlier order 
imposed by another court located in the 
county. Tex.R.Civ.P. 330(h). In light of this 
overlapping authority and responsibility, it is 
incongruous to suggest that district court 
judges do in fact exercise “full” authority 
over the office. 

20. The Siegelman court concluded, and I 
agree, that the courts in both Butts and Unit- 

ed States v. Dallas County Comm'n, 850 F.2d 
1433 (11th Cir.1988) implicitly utilized the 
term “single-member office” to refer “to a 
situation where under no circumstances will 
there ever be more than one such position in 
a particular geographic voting area.” Siegel- 
man, 714 F.Supp. at 518.  



  

  

290 

effectively rendered meaningless and 

such offices are inappropriate for section 

2 vote dilution challenges. There is no 

such rationale, however, for not applying 

section 2 to elected positions merely be- 

cause “the full authority of that office is 

exercised exclusively by one individual,” 

as the defendants would have this court 

do. 

Siegelman, 714 F.Supp. at 519-20 (foot- 

notes omitted). 

The approach in Siegelman is consistent 

with the Supreme Court’s analysis in 

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

S.Ct. 2752, 92 L.Ed.2d 25 (1986). In Gin- 

gles, the Supreme Court stated that a 

threshold inquiry in a claim that an at-large 

election system dilutes minority voting 

strength is whether there is evidence that 

the minority group is sufficiently large and 

geographically compact to constitute a ma- 

jority in a single-member district. “The 

single-member district is generally the ap- 

propriate standard against which to mea- 

sure minority group potential to elect be- 

cause it is the smallest political unit from 

which representatives are elected.” Gin- 

gles, 478 U.S. at 50 n. 17, 106 S.Ct. at 2766 

n. 17. Proof of this geographically com- 

pact minority population essentially iso- 

lates the at-large electoral structure as the 

feature which has the potential to deny the 

minority fair electoral access. The mainte- 

nance of an at-large election scheme is not 

dilutive, however, where the electoral 

scheme in the relevant jurisdiction is indi- 

visible because there is only one position to 

be for the particular jurisdiction. 

Applying this reasoning, I continue to 

urge the adoption of the Siegelman court’s 

definition of single member office: 

The true hallmark of a single-member 

office is that only one position is being 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

filled for an entire geographic area, and 

the jurisdiction can therefore be divided 

no smaller. While mayors and sheriffs 

do indeed “hold single-person offices in 

Alabama,” they do so because there is 

only one such position for the entire geo- 

graphic area in which they run for elec- 

tion.... It is irrelevant, in ascertaining 

the potential existence of vote-dilution, 

that these officials happen to exercise 

the full authority of their offices alone. 

Siegelman, 714 F.Supp. at 518 n. 19 (em- 

phasis original). 

The Siegelman court is not alone in its 

approach to a claim of vote dilution. Sev- 

eral courts have found Section 2 violations 

in cases arising from similar factual situa- 

tions. For example, in Clark v. Edwards, 

725 F.Supp. 285 (M.D.La.1988), the district 

court assumed that districts with more 

than one judicial position were properly 

characterized as multi-member districts. 

Similarly, in Haith v. Martin, the district 

court concluded that because North Car- 

olina Superior Court judgeships are “desig- 

nated seats in multi-member districts, ... 

they are subject to section 5 preclearance 

requirements.” 618 F.Supp. 410. Quoting 

the language of Section 2, the Haith court 

stated that “the Act applies to all voting 

without any limitation as to who, or what, 

is the object of the vote.” Id. at 413. See 

also Martin v. Allain, 658 F.Supp. 1183 

(S.D.Miss.1987); Williams v. State Board 

of Elections, 696 F.Supp. 1563 (N.D.IIL 

1988). 

The concurrence, noting that Haith’s fo- 

cus was preclearance under Section 5 and 

not the merits of a vote dilution claim un- 

der Section 2, discounts this reference to 

the designation of trial judges as part of a 

multi-member body. Yet, even while urg- 

ing that Haith is irrelevant to the instant 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

case because it involves Section 5 preclear- 

ance, the concurrence notes that there is no 

reason to distinguish between Section 5 

and Section 2 with “respect to their applica- 

bility to judicial elections.” Concurring 

Opinion slip op. at 268, at ——. The con- 

currence’s conclusion is based on the real- 

ization that 

[tJ]o hold otherwise would lead to the 

incongruous result that if a jurisdiction 

had a discriminatory voting procedure in 

place with respect to judicial elections it 

could not be challenged, but if the state 

sought to introduce that very procedure 

as a change from existing procedures, it 

would be subject to Section 5 preclear- 

ance and could not be implemented. 

Id. The concurrence, while clearly ac- 

knowledging the interlocking nature of 

Section 2 and Section 5, simply exempts 

from its reasoning those judges who are 

said not to act collegially; the concur- 

rence’s logic is strained and internally in- 

consistent. 

A violation of the Voting Rights Act 

occurs where the challenged system effec- 

tively discourages equal participation in the 

electoral process and lessens the opportuni- 

ty of minority voters to elect representa- 

tives of their choice. Where several offi- 

cials, performing essentially the same job, 

are elected at-large from one geographic 

area, the potential for vote dilution is no 

less tangible simply because each official 

acts independently of the others. As the 

court in Siegelman stated, there exists “no 

rational reason why the concept of vote 

dilution cannot, or should not, apply to 

elected members of the judiciary simply 

because judges 'exercise their authority in 

solitude.” 714 F.Supp. at 520. 

The concurrence attempts to shore up its 

argument that there can be no dilution of 

  

291 

votes for the district judge positions in the 

instant case by asserting that the indepen- 

dent nature of the trial judge is integral to 
the linking of jurisdiction and elective base. 

The concurrence argues that 

Texas has structured its government 

such that it wields judicial power at the 

trial level through trial judges acting 

separately, with a coterminous or linked 

electoral and jurisdictional base, each ex- 

ercising the sum of judicial power at that 

level, and all with review by courts act- 

ing collegially. We are persuaded that, 

because the fact and appearance of inde- 

pendence and fairness are so central to 

the judicial task, a state may structure 

its judicial offices to assure their pres- 

ence when the means chosen are undeni- 

ably directly tailored to the objective. 

The choice of means by Texas here—ty- 

ing elective base and jurisdiction—define 

the very manner by which Texas’ judicial 

services are delivered at the trial court 

level. They define the office. Nothing 

in the Voting Rights Act grants federal 

courts the power to tamper with these 

choices. 

Concurring Opinion slip op. at 269, at —. 

Essentially, the concurrence argues that 

the union of elective base and jurisdiction 

defines the very nature of the Texas dis- 

trict judge position. Having posited the 

Texas office of district judge, the concur- 

rence concludes that there is “compelling 

necessity sufficient to overcome the strict 

scrutiny of state acts impinging upon a 

fundamental interest.” Id. slip op. at 269, 

at ——. The concurrence’s assertions, 

however, are contrary to the realities of the 

Texas system. Any modification in the 

elective base of a judicial district will not 

destroy the essence of the district judge 

position any more than have the persistent 

modifications in the jurisdiction of Texas 

 



  

  

  

292 

district courts. It is inconceivable that the 

remedial imposition of a non-dilutive elec- 

toral scheme would have a more than negli- 

gible effect on the method by which judges 

exercise their authority. The concurrence 

cites no evidence—because there is none— 

that the very nature of the judicial office 

will be irreparably damaged by a modifica- 

tion in the elective base. In the absence of 

such evidence, it can hardly be said that the 

continued unmodified union of elective base 

and jurisdiction is a “compelling” state in- 

terest which militates against the applica- 

tion of the Voting Rights Act. 

Undeterred by the obvious irrelevance of 

the acclaimed union between elective base 

and jurisdiction, the concurrence urges an 

additional state interest against the applica- 

tion of the Voting Rights Act—the appear- 

ance of judicial impartiality. The concur- 

rence argues that the appearance of impar- 

tiality is a defining element of Texas’ dis- 

trict judgeships. Again, the concurrence’s 

attempts to manufacture a “compelling” 

state interest belie its desperation to 

achieve a result that would not require the 

displacement of the present electoral 

scheme. The fact that Texas currently 

elects judges from county-wide areas in 

order to promote the appearance of impar- 

tiality speaks to the state’s interest in re- 

taining the current system; it does not 

speak to the very definition of the official 

post. The interest in retaining an appear- 

ance of impartiality is a factor which may 

be considered when, pursuant to Gingles, 

the totality of the circumstances are exam- 

ined to determine if a Section 2 violation 

exists. However, this factor—the appear- 

21. While creating smaller districts exists as a 
potential means to remedy impermissible 
vote dilution, it is not an exclusive remedy. 
A legislature is at liberty to implement any 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

ance of impartiality—is absolutely irrele- 

vant to the preliminary question of the 

applicability of Section 2. 

The instant case reveals an electoral 

scheme which is “discriminatory but corri- 

gible.” 2! Each county elects three to fifty- 

nine district court judges. In each county, 

all judges have the same authority and 

exercise the same responsibility. With the 

exception of specialty courts, all judgeships 

are essentially fungible; within each spe- 

cialty, the judgeships are also fungible. 

Section 2 requires that once correctable 

vote dilution has been established, it must 

be eradicated by the implementation of a 

plan which will “completely remedy” ?? the 

violation by “fully provid[ing an] equal op- 

portunity for minority citizens to partic- 

ipate and to elect candidates of their 

choice.” S.Rep. at 31, 1982 U.S.Code Gong. 

& Admin.News at 208. 

The State's Interest in Retaining the 

Current System 

The defendants argue that elections for 

trial judges present strong state interests 

in retaining an at-large election system. 

Even if this contention has merit, the 

State’s asserted interests are relevant only 

to the inquiries of whether plaintiffs have 

proven a Section 2 violation under the total- 

ity of the circumstances and, if so, what 

remedy would be most appropriate to allev- 

iate the dilution of minority voting 

strength, while intruding on state interests 

only to the extent necessary to accomplish 

the task. 

In Zimmer v. McKeithen, 485 F.2d 1297 

(5th Cir.1973) (en banc), aff'd sub nom. 

electoral system which will alleviate vote di- 
lution. 

22. Dillard, 831 F.2d at:252, 

   



  

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

East Carroll Parish School Board v. Mar- 
shall, 424 U.S. 636, 96 S.Ct. 1083, 47 
L.Ed.2d 296 (1976) (per curiam), this Court 
set forth a non-exclusive list of factors to 
be examined when applying the totality of 
the circumstances test.?? In Gingles, the 
Supreme Court reaffirmed the totality of 
the circumstances approach to a vote dilu- 
tion claim. In doing so, the Supreme Court 
noted that the “factors were derived from 
the analytical framework of White v. Re- 
gester ... as refined and developed by the 
lower courts, in particular by the Fifth 
Circuit in Zimmer. ...” Gingles, 478 U.S. 
at 36 n. 4, 106 S.Ct. at 2759 n. 4 (citations 
omitted). The Supreme Court went further 
than the mere application of the totality 
test, however, and established a three-part 

foundation for the proof of a Section 2 vote 
dilution claim. The minority group must 
demonstrate first that it is sufficiently 

23. The factors include (1) the history of dis- 
crimination in the state; (2) the extent to 
which voting is polarized by race; (3) the 
existence of practices or procedures which 
enhance the opportunity for discrimination; 
(4) whether minority groups have been de- 
nied access to a candidate slating process; 
(5) the existence and extent of any socio-po- 
litical vestiges of discrimination; (6) whether 
political races are characterized by overt or 
covert racial appeals; and (7) the extent to 
which minority groups have been elected in 
the jurisdiction. In addition, the legislative 
history of the Act instructs that an inquiry 
into the responsiveness of the elected offi- 
cials to minority needs and the legitimacy of 
the state’s asserted reasons for maintaining 
the existing system may provide additional 
insight. 

24. Unless these threshold Gingles factors are 
established, “the use of multimember dis- 
tricts generally will not impede the ability of 
minority voters to elect representatives of 
their choice.” Gingles, 478 U.S. at 48, 106 
S.Ct. at 27685. 

25. In holding that the current at-large 
scheme for electing Texas district court 
judges violates Section 2, the federal district 
court made numerous specific factual find- 

293 

large and geographically compact to consti- 

tute a majority in a single-member district; 

second, that the minority is politically cohe- 

sive; third, that the majority votes suffi- 

ciently as a bloc to usually defeat the mi- 

nority’s preferred candidate. Id. at 50-51, 

106 S.Ct. at 2766-67.2* Once the plaintiffs 

have satisfied these three threshold re- 

quirements, as they did here, the district 

court proceeds to the totality of the circum- 

stances inquiry. 

The concurrence in the instant case, how- 

ever, totally ignores the plaintiffs’ success- 

ful compliance with the Gingles three-part 

foundation showing. It is by this ruse that 

the concurrence never reaches the federal 

district court’s treatment of the vote dilu- 

tion factors based on its per se exclusion of 

at-large elections for trial judges from the 

scope of Section 2(b).25 It must now be 

ings regarding the Gingles threshold factors 
as well as the Senate Report, or Zimmer, 
factors. For purposes of this dissent, it need 
not be decided whether the district court 
correctly determined these factual issues. It 
should be noted and flagged at this point, 
however, that the trial record is replete with 
evidence of an inescapable reality: minori- 
ties in the challenged Texas districts are sel- 
dom ever—indeed, are only with great rari- 
ty—able to elect minority candidates to any 
of the at-large district court judge positions 
available in the districts. 

It is necessary to indicate that this writer 
would not affirm the interim remedial por- 
tion of the district court’s order in toto. Spe- 
cifically, I am constrained to conclude that 
the district court acted beyond the scope of 
its remedial powers by ordering that judicial 
elections be nonpartisan. The district 
court's order fails to defer to a political 
choice of the State of Texas, a choice which 
was not even challenged by the plaintiffs in 
the instant case. The district court gave no 
explanation for rejecting the system of parti- 
san elections. No evidentiary hearing was 
held on the issue, and no factual findings 
were made. The equity powers of the dis- 
trict court neither encompass nor justify the 
federal district court's actions; the district  



  

  

  

294 

apparent that the concurrence’s fundamen- 
tal basis for denying minority groups the 
opportunity to challenge their exclusion 
from the process of judicial self-govern- 
ment is simply that the concurrence finds 

the concept of subdistricting unappealing 
as a proposed remedy. The only legitimate 

point at which to weigh this factor, how- 

ever, is at the proof and remedy stages, 
when the countervailing factors of voting 

discrimination, as initially determined by 

the district court—including, in particular, 
the plaintiffs’ inability to elect their pre- 

ferred candidates—may be fully taken into 

balance. 

Similarly, the State’s interest in retaining 

an at-large election scheme is a factor to be 
weighed by a court applying the totality 

test only after the existence of the thresh- 

old Gingles factors has been determined.? 
In the instant case, the State has not artic- 

ulated so compelling an interest in retain- 
ing the existing electoral scheme that the 
dilution of minority votes should go unrem- 

edied.? 

court should have deferred to the State's 
policy choice for partisan elections as ex- 
pressed in its statutory scheme. 

26. The current administration endorses this 
approach. In an amicus brief filed in the 
instant case, the United States has argued 
that the proper approach is to consider, first, 
whether plaintiffs have met the three-part 
test outlined in Gingles. Assuming that this 
has been done, it is then appropriate to con- 
sider other factors set out in Gingles, and to 
weigh in particular the importance of the 
state’s interest in the electoral system under 
attack. 

United States Brief at 13. 

27. No opinion is expressed whether such a 
situation may ever be demonstrated. 

28. The concurrence, by treating considera- 
tions such as the appearance of impartiality 
and venue rules as definitive elements of the 
relevant elected post, has avoided the need to 
analyze at what point a state’s asserted inter- 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

When assessing the point at which a 

state’s articulated interest in retaining the 

current at-large scheme should be con- 

sidered, the Supreme Court’s acknowledg- 

ment that the Senate factors are secondary 

considerations, behind the three-part Gin- 

gles test, is of particular relevance.?® Spe- 

cifically, the Supreme Court noted that, 

while the Senate Report factors “may be 

relevant to a claim of vote dilution through 

submergence in multimember districts, un- 

less there is a conjunction of the [three 

threshold factors], the use of multimember 

districts generally will not impede the abili- 

ty of minority voters to elect representa- 

tives of their choice.” Gingles, 478 U.S. at 

48, 106 S.Ct. at 2765. From this language, 

it is beyond dispute that the Supreme Court 

has articulated a legal test for vote dilution 

claims which anticipates a threshold show- 

ing only of geographical compactness, po- 

litical cohesion, and white bloc voting suffi- 

cient usually to prevent election of the mi- 

nority’s preferred candidate.?® 

est in retaining the existing scheme should 
be considered. As has already been dis- 
cussed in footnote 16, these considerations 

are not part and parcel of the trial judge 
post. 

What the concurrence has done, instead of 
examining the State's interest in retaining 
the existing scheme, is to consider the State's 

interest in not implementing a voting scheme 
similar to that imposed under the interim 
plan (subdistricting) in order to alleviate any 
potential vote dilution. This approach posi- 
tions the remedy squarely in a place of incor- 
rect prominence and foregoes any serious 
inquiry into the existence of impermissible 
vote dilution. Stated simply, the concur- 
rence has placed the cart before the horse. 

29. By articulating a threshold test which ex- 
amines three characteristics of the minority 
group and its voting patterns, the Supreme 
Court has implicitly stressed the proposition 
that the Voting Rights Act is primarily con- 
cerned with the efficacy of the minority vote 

   



  

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

The conclusion that a state’s interest is 

properly considered in the second phase of 

the Gingles analysis is bolstered by the 

Senate Report's indication that the list “of 

typical factors is neither comprehensive nor 

exclusive. While the enumerated factors 

will often be pertinent to certain types of 

§ 2 violations, particularly to vote dilution 

claims, other factors may also be relevant 

and may be considered.” Id. at 45, 106 

S.Ct. at 2763 (footnote omitted). The Re- 

port stresses that no particular factors 

need be proved and neither the existence 

nor the nonexistence of a majority of 

factors dictate the outcome. Rather, the 

determination of whether the political pro- 

cesses are equally open depends on an eval- 

uation of the relevant political process. It 

is during this examination of minority ac- 

cess to the relevant jurisdiction’s political 

process that a state’s interest in retaining 

the existing system is particularly relevant. 

Congress most certainly did not intend to 

frustrate the important state interest in a 

and not with the function or characteristics 

of the elected post. 

30. For example, one of the two “[a]dditional 
factors that in some cases have had proba- 
tive value” in the Senate Report's illustrative 
list of totality of the circumstances factors is 
“whether the policy underlying the state or 
political subdivision’s use of such voting 
qualification, prerequisite to voting, or stan- 
dard, practice or procedure is tenuous.” 
S.Rep. No. 417, 97th Cong., 2d Sess. 29, re- 
printed in 1982 U.S.Code Cong. & Admin. 
News 177, 207. In the proceedings below, 
the district court considered this factor at the 
appropriate point—during a trial on the mer- 
its. The district court was not persuaded by 
defendants’ defense that at-large elections 
served a critical state interest. The court 
determined that “[w]hile the Court does not 
find that the present system is maintained on 
a tenuous basis as a pretext for discrimina- 
tion, the Court is not persuaded that the 

reasons offered for its continuation are com- 
pelling.” District Court Opinion at 77. 

295 

fair and impartial judiciary; at the same 

time, however, Congress expressed the af- 

firmative intent to replace unlawfully dilu- 

tive electoral systems with ones in which 

minorities would have a full and fair oppor- 

tunity to participate. In enacting Section 

2(b) of the Voting Rights Act in 1982, it is 

clear that Congress was continuing the 

struggle to make the Act responsive to the 

needs and aspirations of the nation—to 

make absolutely certain that the fundamen- 

tal right of minorities to cast an effective 

vote for candidates of their choice was not 

abridged. 

For these reasons, it is imperative that a 

court first proceed to determine whether 

the Gingles three-part test has been met; 

only then should a court proceed to consid- 

er, under the “totality of the circum- 

stances,” other relevant factors,?® including 

the state interest in maintaining an at-large 

election system, to determine whether, on 

balance, the plaintiffs have proved a Sec- 

tion 2 violation. 

31. Because of my view that the State has not 
articulated a substantial interest in retaining 
the existing at-large system of electing dis- 
trict judges, the question of how much 
weight this factor should be afforded is not 
addressed. As the Supreme Court has indi- 
cated, “recognizing that some Senate Report 
factors are more important to multimember 
district vote dilution claims than others ... 
effectuates the intent of Congress.” Gingles, 
478 U.S. at 49 n. 15, 106 S.Ct. at 2765 n. 15. 

It is my firm belief, however, that under no 
circumstances should the State’s interest out- 
weigh the following factors: the extent to 
which minority group members have been 
elected to office in the jurisdiction and the 
extent to which voting in the elections of the 
jurisdiction has been racially polarized. 
This belief is based on my acknowledgement 
of the Supreme Court's indication that 
“[ulnder a ‘functional’ view of the political 
process mandated by § 2 ... the most im- 
portant Senate Report factors bearing on § 2 
challenges to multimember districts are 

\  



  

  
  

296 

In the instant case, the State asserts the 

following interests as justification for re- 
taining its dilutive electoral system: (1) en- 

suring popular accountability by making 

judges’ jurisdiction coterminous with the 

electoral boundaries; (2) avoiding bias 

caused by small electoral districts; and (3) 

preserving the administrative advantages 

of at-large elections, including the use of 

specialized courts. The concurrence would 

not only accept the existence of these inter- 

ests, but would characterize them as com- 

pelling. 

Accountability: The State has advanced 

the argument that at-large elections pro- 

vide greater accountability of the judge to 

county voters. The Chief Justice of the 

Texas Supreme Court testified that judges 

are “accountable to those people who can 
be hailed [sic] into their court,” because 

people who feel they have been wronged by 

a particular judge may vote against that 

judge in the next election. Ostensibly, the 

district court’s interim plan eliminates ef- 

fective accountability. The concurrence 

notes that under the district court’s interim 

plan, for example, a minority litigant has 

“a 98.3% chance of appearing before a 

judge in whose election he had not been 

able to vote.” Concurring Opinion slip op. 

at 274, at —. 

The concurrence’s argument that judges 

must be “accountable” to potential lit:- 

gants is an affront to the judiciary of the 

State of Texas. An honorable judiciary 

separated from the influence of others is 

“indispensable to justice in our society.” 

Canon 1 of the Texas Code of Judicial 

Conduct (emphasis added). District judges 

are charged to apply the law, not respond 

[these factors.]” Id. Additionally, placing 
greater weight on the factors which examine 
minority success at the polls and racial vot- 
ing patterns furthers the purpose of the Act 

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

to the expectations of litigants. To say 

that a district judge must be accountable to 

litigants is to suggest the unthinkable of 

great numbers of highly respected, dedicat- 

ed public servants. Not only is such a 

suggestion misleading to a public already 

mystified by the bench and bar, it is offen- 

sive to those who have occupied distin- 

guished positions as Texas state district 

judges in the past, as well as those who 

now occupy such positions. 

Even if ‘accountability’ were a legit 

imate state interest, it is not a compelling 

reason to justify the current dilutive sys- 

tem. Under the existing system, it is high- 

ly probable that a case will be heard out- 

side the county in which a litigant lives. In 

such a case, at least one—and probably 

both—of the parties will be appearing be- 

fore a judge who was elected by a popula- 

tion which does not include that litigant. 

The argument that judges must remain 

“accountable” to potential litigants in their 

courts (nauseous as this straw man specter 

may be) pales in light of the current Texas 

venue rules, which frequently require that 

an out of county resident appear before a 

judge for whom the litigant neither cast a 

vote for nor against. Even further, in Tex- 

as, parties can agree to give a district court 

venue over a case not arising in the county. 

Nipper v. U-Haul Co., 516 S.W.2d 467 

(Tex.Civ.App.—Beaumont 1974, no writ). 

The concurrence argues that Texas’ elab- 

orate system of venue rules supports the 

argument that the State has demonstrated 

a concern for inter-county bias. However, 

any interest in ensuring accountability and 

the appearance of impartiality which may 

to “correct an active history of discrimina- 
tion ... [and] deal with the accumulation of 
discrimination.” S.Rep. at 5, 1982 U.S.Code 
Cong. & Admin.News at 182. 

   



LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

be suggested by the Texas venue scheme is 

lessened considerably by Texas’ character- 

ization of venue challenges as dilatory 

pleas which, if not raised initially, are 

waived. In light of such a practice, the 

state interest cannot be said to be compel- 

ling. 

Aside from the complexities of the Texas 

venue rules, there are many other occa- 

sions when a party may appear before a 

judge elected by the residents of another 

county. For example, district court judges 

are frequently called into other counties to 

help with docket control. Despite the fact 

that the county’s residents have no re- 

course against this out-of-county judge at 

the ballot box, Texas courts have upheld 

the constitutionality of this practice. See, 

e.g., Reed v. State, 500 S.W.2d 137 (Tex. 

Crim.App.1973). Nor is the practice of 

electing judges from subdistricts without 

precedent in the state. Texas Justice of 

the Peace courts, lower level trial courts 

with jurisdiction over an entire county, are 

elected from sub-county precincts.?? Thus, 

a litigant often may appear before a justice 

of the peace who lives in the same county 

as the litigant, but not the same judicial 

district. 

Additionally, Texas authorizes the use of 

retired or senior state district judges, who 

wield all the powers of their elected and 

active peers. Such a judge was, of course, 

at one time elected to that office. Upon 

32. In Martin v. Allain, 658 F.Supp. 1183, 
1195-96 (S.D.Miss.1987), the court adopted a 
single-member district remedy for some Mis- 
sissippi trial judges who were elected at-large 
in racially dilutive elections, after finding 
that Mississippi already elected some other 
judges from areas smaller than the court's 
jurisdiction. The court there stated: 

Although the state has adopted the policy 
of the post system of electing judges in 
multi-member judicial districts above the 

  

297 

retirement, however, that judge while sit- 

ting is vested with the complete authority 

of the office and is not subject to election 

or reelection. Simply stated, Texas’ retired 

or senior judges contribute greatly to the 

reduction of court dockets, but they are no 

longer accountable in any fashion to the 

electorate. See Tex. Gov't Code Ann. 

§§ 75.001-.002 (Vernon 1988). 

There seems to be no basis in fact for the 

State’s contention that county-wide ac- 

countability is essential to the proper selec- 

tion of district judges, or that any measure 

of electoral accountability is significantly 

defeated by dividing the county into small- 

er electoral districts. 

A Fair and Impartial Judiciary: Both 

the State and intervenors put on witnesses 

who testified that the creation of subdis- 

tricts was inadvisable because it could lead 

to perceptions of judicial bias and undue 

influence by special interests. Specifically, 

the witnesses testified that judges elected 

from smaller districts would be more sus- 

ceptible to undue influence by organized 

crime or to pressure by other political 

sources including special interest groups. 

The concurrence accepts this argument, 

and urges in addition that subdistricting 

“would change the structure of the govern- 

ment because it would change the nature 

of the decision-making body and diminish 

the appearance if not the fact of judicial 

independence.” 33 Concurring Opinion slip 

justice court level, it long ago adopted the 
policy of single-member electoral districts 
for justice court judges. The state also has 
the policy of judges deciding cases which 
may originate outside their election dis- 
tricts. 

33. Once again, the concurrence’s asserted 
concern is premised on the anticipated reme- 
dy—subdistricting. = While the Supreme 
Court, in Gingles, did indicate that a “single- 

 



  

298 LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

op. at 275, at ——. The concern that a 

judge elected from a small electorate is 

more susceptible to improper pressure, 

however, has not prevented or impeded 

Texas from creating judgeships in counties 

with relatively small populations. Texas 

has 386 district judges. A significant num- 

ber of these judges are elected from dis- 

tricts of less than 100,000 people; indeed, 

in some districts, as few as 24,000 to 50,000 

people constitute the relevant electorate. 

Even if Harris County (with a population of 

2.5 million people) were divided into as 

many as fifty-nine subdistricts (the number 

of district courts of general and special 

jurisdiction), each district would contain ap- 

proximately 41,000 people. If Dallas Coun- 

ty were divided into thirty-seven subdis- 

tricts, each subdistrict would have approxi- 

mately 42,000 people. In short, even if 

judicial districts in large counties were sub- 

divided, the resulting subdistricts are un- 

likely to be smaller than many existing 

judicial districts in Texas. Consequently, 

the ostensible state interest against a small 

electorate in judicial districts has not been 

shown. 

Furthermore, Texas law does not reflect 

the witnesses’ fear that subcounty districts 

are inconsistent with the existence of a fair 

and impartial judiciary. Justices of the 

Peace are already elected from areas small- 

er than a county; in a very extended num- 

ber of counties, these districts contain 

smaller populations than the hypothetical 

subdistricts of Dallas and Harris counties 

member district is generally the appropriate 
standard against which to measure minority 
group potential to elect,” it did not mandate 
the imposition of subdistricts to remedy ev- 
ery instance of illegal vote dilution. The 
concurrence, by erroneously factoring in, at 
the liability phase, concerns which may nev- 
er be borne out, refuses to properly acknowl- 
edge the intent of the Voting Rights Act. 

discussed above. For example, the Texas 

Constitution permits counties with as few 

as 18,000 people to be divided into four 

justice of the peace precincts. Tex. Const. 

art. 5, § 18(a). 

The foregoing is sufficient to demon- 

strate the state has no compelling interest 

in retaining county-wide elections. Even if 

it were not, it is plainly dispositive that the 

Texas Constitution was recently amended 

to give voters the option of electing district 

judges from subdistricts. See Tex. Const. 

art. 5, § 7a(i). That no county has yet to 

implement such an elective scheme does 

not alter the reality that such a change 

already has the blessing of the state legis- 

lature. In light of this constitutionally au- 

thorized electoral scheme, the State cannot 

now say that it has a compelling interest in 

not electing district judges from an area 

smaller than a county. 

Considering the precedent for the cre- 

ation of judicial subdistricts, the size of the 

potential subdistricts, and the lack of any 

real indication that perceived impropriety 

would result, the state’s asserted inter- 

ests do not support the continuation of its 

present dilutive electoral system. 

Administrative Advantages: The State 

has cited the administrative advantages of 

the present system, including the county- 

wide retention of records, the random as- 

signment of cases to judges within the 

county and county-wide jury empaneling. 

There is no reason why an electoral scheme 

34. It is also notable that one judge, an inter- 
venor in the instant case, testified that he 
was not aware of any allegations of unfair- 
ness or suggestions that white litigants were 
not treated fairly by minority judges elected 
from subcounty Justice of the Peace pre- 
cincts. 

   



  

LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

utilizing subdistricts cannot retain each and 

every one of these administrative features; 

any remedy which might be imposed in this 

case need not require that a judge elected 

from a subcounty area have jurisdiction 

only over that area. In fact, the interim 

plan fashioned by the district court in the 

instant case specifically retained all of the 

foregoing valid administrative features. 

Furthermore, even if retention of certain 

administrative conveniences were not possi- 

ble under a remedial scheme, that fact can- 

not justify the continuation of an otherwise 

racially dilutive electoral process. See 

Westwego Citizens for Better Gov't w. 

Westwego, 872 F.2d 1201 (5th Cir.1989). 

The concurring opinion attempts to place 

great weight on the interest of the State in 

retaining the system of “specialty” courts. 

But there is absolutely no reason why a 

remedy would be unable to accommodate 

this interest by retaining these courts of 

specialized jurisdiction? Most counties 

which utilize the administrative conve- 

nience of specialty courts have several of 

each court; consequently, a remedy could 

be formulated which retains the use of 

such courts.?® It cannot be gainsaid that 

the State has almost unlimited flexibility to 

devise a remedial plan which retains spe- 

cialty courts and all of the other important 

government interests while eradicating the 

dilution of minority voting strength. It is 

critical that it be understood that the histo- 

ry, the intent, the text and spirit of the 

Voting Rights Act in general and Section 2 

35. It should be noted that the Texas Constitu- 
tion limits the State's interest in establishing 
specialty courts; the state supreme court has 
ruled that the legislature may not disturb 
state courts’ jurisdiction. 

36. Because the district court, in its interim 

plan, indicated the belief that a remedy 
could be created which allows the substan- 
tial use of the Texas system of specialty 

  

299 

in particular mandates the implementation 

of just such a remedial electoral scheme. 

Summary: Taken together, the State’s 

attempt to articulate its interest in retain- 

ing the current voting system pales when 

compared to the clear purpose of the Vot- 

ing Rights Act. The State has not shown 

an inalterable policy of not subdividing dis- 

tricts, nor has it shown that judges would 

be less accountable to the electorate if 

elected from a subdistrict. Further, there 

is no indication that any impropriety, real 

or perceived, on the part of judges elected 

from smaller units would in fact occur. 

Finally, while the State may indeed have a 

legitimate interest in retaining specialty 

courts, the State has failed to demonstrate 

why that interest cannot be effectuated in 

an electoral scheme which does not dilute 

minority voting strength. 

III. 

CONCLUSION 

“The Voting Rights Act was designed by 

Congress to banish the blight of racial dis- 

crimination in voting, which has infected 

the electoral process in parts of our coun- 

try for nearly a century.” 3 It is my most 

earnest conviction that the majority and 

concurrence have each chosen erroneous 

methods to examine the particular speci- 

men of vote dilution asserted by the plain- 

tiffs and found by the district court here. 

The true method that both have missed has 

courts, District Court Order at 7, this writing 

expresses no view on whether or not a state's 
interest would be substantially stronger if 
such a remedy could not be devised. 

37. South Carolina v. Katzenbach, 383 U.S. 

301, 308, 86 S.Ct. 803, 808, 15 L.Ed.2d 769 

(1966). 

 



  

    

300 LATIN AMERICAN CITIZENS COUNCIL # 4434 v. CLEMENTS 

been obscured by their failure to recognize 

the true meaning of the Voting Rights Act, 

and by their failure to comply with the 

strictures of Gingles. The majority, aban- 

doning established precedent, has deter- 

mined that Section 2 of the Voting Rights 

Act does not apply to any judicial elections. 

The concurrence has looked to the func- 

tion of the elected official, and the duties 

and powers of the official once in office, to 

conclude that, because trial judges act inde- 

pendently, at-large elections cannot result 

in minority vote dilution. There is simply 

no support in the words of the Act, in the 

legislative history of Section 2, nor in logic 

for either the majority or the concurrence’s 

embrace of such result-oriented determina- 

tions. 

The position of each Administration has 
been that the Voting Rights Act applies to 
judicial elections. The current Administra- 
tion goes even further and strongly urges 
that Section 2(b) was violated by the elec- 

toral scheme that was utilized here to elect 
certain Texas district court judges. 

The Voting Rights Act is in no way con- 
cerned with the names or positions listed 
on the ballot. The United States Congress, 
by enacting the Voting Rights Act, has 
instructed that this and every other court 
focus on the voter, particularly the minori- 

ty voter, and the efficacy of each vote cast, 
so as to ensure that minorities are not 

denied an equal opportunity to participate 
effectively in the democratic process. 

I respectfully dissent. 

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.