Reply Brief on Remand for State Defendants-Appellants

    Office of the dite General 

State of Texas 

DAN MORALES 
ATTORNEY GENERAL 

October 23, 1991 

VIA EXPRESS DELIVERY 
Gilbert Ganucheau, Clerk 
Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC, et al. v. Attorney General of Texas, et al., 
No. 90-8014 

Dear Mr. Ganucheau: 

Enclosed for filing in the above-referenced cause are seven 
copies of the State Defendants-Appellants' Reply Brief on Remand. 
Also enclosed are the original and three copies of the state's Response 
in Potential, Partial Opposition to Motion by Some Jefferson County 
District Judges for Leave to File Amicus Curiae Brief. 

ie ANS 

Renea Hicks 3 
Special Assistant Atiorviey General 

~ - 
gt a 

  

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

cc: Counsel of Record 
Members of Texas Judicial Districts Board 
Audrey Selden 

512/463-2100 P.O. BOX 12548 AUSTIN, TEXAS 78711-2548 
AN FOUALEMPLOYMENT OPPORTUNITY EMPLOYER 

 



    
No. 90-8014 
  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

  

LULAC COUNCIL #4434, et al., 
Plaintiffs-Appellees, 

V. 

ATTORNEY GENERAL OF TEXAS, et al., 

Defendants-Appellants. 

  

On Remand from the 
Supreme Court of the United States 

  

REPLY BRIEF ON REMAND FCR 
STATE DEFENDANTS-APPELLANTS 

  

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney General 

MARY F. KELLER 
Deputy Attorney General 

RENEA HICKS 
Special Assistant Attorney General 

JAVIER P. GUAJARDO 
Special Assistant Attorney General 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 
FAX: (512) 463-2063 

October 23, 1991 Attorneys for State Defendants- 
Appellants 

 



    
No. 90-8014 
  

UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

  

LULAC COUNCIL #4434, et al, 
Plaintiffs-Appellees, 

V. 

ATTORNEY GENERAL OF TEXAS, et al, 
Defendants-Appellants. 

  

On Remand from the 
Supreme Court of the United States 

  

REPLY BRIEF ON REMAND FOR 
STATE DEFENDANTS-APPELLANTS 

  

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney General 

MARY F. KELLER 
Deputy Attorney General 

RENEA HICKS 
Special Assistant Attorney General 

JAVIER P. GUAJARDO 
Special Assistant Attorney General 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 
FAX: (512) 463-2063 

October 23, 1991 Attorneys for State Defendants- 
Appellants 

 



    
TABLE OF CONTENTS 

I. THE STATE'S INTEREST IN SIMULTANEOUSLY 
MAINTAINING THE INDEPENDENCE, ACCOUNT- 
ABILITY, AND LEGITIMACY OF ITS JUDICIAL SYSTEM 
IS OF THE HIGHEST ORDER AND PRESENTS A LEGAL, 
NOT A FACTUAL, BALANCING QUESTION FOR THE 
COUTRT  ccrnniinssrcarsonsnrsssrsissrisersissenssssisstnsisssnssnsssnsmssssssssmsssasssrotesone 2 

II. THE STATE CONSISTENTLY MAINTAINS THE 
INDEPENDENCE-ENHANCING LINKAGE BETWEEN 
THE ELECTORAL AND JURISDICTIONAL BASES OF 
ITS ELECTED DISTRICT JUDGES ...c.ciorissssrssmssrenssesssrser 6 

CONCLUSION 

I CERTIFICATE OF SERVICE .........c.corerusstsmsrmsnessnsrsrmisssssssrisnsemmssnssrons 11 

 



    
INDEX OF AUTHORITIES 

CASES PAGE(S) 

Bradley v. Fisher, 13 Wall, 335 (1872) ..cuummmsrcisesmnsmissmerosseres 5 

Chisomuv, Roemer, 111 S.CL. 2354 (1091).......ccccorrrerreeisrersrnsesveosrarsvrnes passim 

Gregory v, ASheroft, 111 S.Ct. 2305 (1991)......ccccrerirermisrsneessrsnsosnsnerase passim 

Houston Lawyers’ Association v. Attorney 
General of Texas, 111 S.Ct, 2370 (1991). cccvreerersessirssrssrivesnsrnssosnrnsn passim 

Morial v. Judiciary Commission of the State of Louisiana, 
565 F.20 205 (Bth Cir. 1077) ...ceserscrsrssassmsssssssssscnsesssssmsirinsnssonivessenminsa 5 

STATUTES AND RULES 

ATTICIC BD, 8 TaUT) ireccrririressisisersssmesiosertossnessnsssiinsssivesrmicorrsinmssmrssbimtcbrassstsissrsaors 6 

TEX. R. ClV. P. BAD. iiisicrccssissnmerssninsimitirssisrsrssossmesssmsissssssssisinsesmmesborestos 7 

 



   

REPLY BRIEF ON REMAND FOR STATE DEFENDANTS-APPELLANTS 

This reply brief is on behalf of the official-capacity state defendants- 

appellants, referred to collectively as either "the state" or "Texas," and who 

are: the Attorney General of Texas; the Secretary of State of Texas; and the 

thirteen members of the Texas Judicial Districts Board, including the Chief 

Justice of the Supreme Court of Texas as chairman of the Board. 

SUPPLEMENTAL STATEMENT OF THE CASE 

This case targets nine major urban counties in Texas. Each is 

different, and the facts about each one require independent evaluation once 

(and if) the overarching issues are cleared. Past the first layer of statewide 

issues, there really are nine major voting rights cases lumped into this one 

appeal. The trial court spent a total of five trial days hearing these nine 

cases. Compressed testimonial accounts of such matters as the state 

interest, therefore, should not be surprising. The necessary evidence is in 

the record; it is just more compact than might usually be the case. 

The appellees’ briefs hint that the state is late in arriving at the state 

interest it now posits as a determinative issue. HLA, for example, 

erroneously suggests that the state never argued the linkage theory to the 

trial court. HLA Remand Brief 15 n.12. The state's post-trial reply brief to 

the trial court may not have used the term "linkage" but it made the 

argument about the twin components of judicial accountability and judicial 

independence which underly the linkage argument in its current form. 

That trial court-level brief paraphrased the testimony of the Chief Justice of 

the Supreme Court of Texas as being about "the inherent tension between 

the role of a trial judge and their being subject to popular election." The 

brief continued: 

 



   

Nothing prevents the state from doing what it can to relieve that 
tension without eliminating either of the elements that might 
create it. Countywide election of all the district judges sitting in 
a particular county embodies a policy which performs that 
function. It can hardly be deemed tenuous if the state's choice 
in the first place to elect its trial judges is to be respected. 

State's Post-Trial Reply Brief at 4. Thus, the spotlight now focused on the 

state's interest has shown before at the trial court level, contrary to HLA's 

statement. 

HLA also gives a misimpression about what the state said to the 

Supreme Court about the alternative remedies to which HLA never commits 

but to which it often refers. Texas did not tell the Court that those 

remedies "are" creative and useful, HLA Remand Brief at 18. Texas said that 

they "may" be, adding (on the HLA-reference page) that "[i]Jt just happens, 

though, that Congress never thought about it, and Texas election law does 

not contemplate it." 

ARGUMENT IN REPLY 

L. 

THE STATE'S INTEREST IN SIMULTANEOUSLY MAINTAINING THE 
INDEPENDENCE, ACCOUNTABILITY, AND LEGITIMACY OF ITS JUDICIAL 
SYSTEM IS OF THE HIGHEST ORDER AND PRESENTS A LEGAL, NOT A 

FACTUAL, BALANCING QUESTION FOR THE COURT 

LULAC, HLA, and Oliver adopt the view that the Supreme Court's 

section 2 coverage decisions in Chisom v. Roemer and Houston Lawyers’ 

Association v. Attorney General of Texas leave this Court with little to do but 

perform a rather perfunctory Rule 52(a) clearly erroneous review of the trial 

court's ultimate vote dilution finding, affirm it, and remand the case for 

implementation of a remedy. The amicus curiae United States adopts a less 

blasé view but argues that the matter now is largely an evidentiary one in 

which, with guidance from the two Supreme Court decisions, the parties 

 



    
will fill in the blanks at the trial court level, and the trial court will evaluate a 

then-complete record. 

Both approaches are wrong. Both reach their conclusions through the 

clever tactical maneuver of blithely tossing off Gregory v. Ashcroft as a 

simple statutory construction case with no meaning for this case. Both fail 

to see the forest (Gregory's constitutional underpinning of federalism) for 

the trees (the hornbook holding about a federal statute's coverage). The 

failure of vision seems willful, for Gregory says much of importance about the 

way to treat the state interest at this point in this case. 

Justice White's concurrence found a broader holding, albeit one he 

disparaged, in the Gregory majority's opinion. He read Gregory to hold that 

Congress must "specify the precise details" when it exercises its 

enforcement powers under section 5 of the Fourteenth Amendment to 

intrude into traditional state domains. 111 S.Ct. at 2412. That holding, 

clear from any careful reading of Gregory, forms the basis for the argument 

of Texas in this case that the state's compelling interest in maintaining the 

legitimacy of its judicial branch through consistently maintaining an 

electoral structure which harmonizes judicial independence and judicial 

accountability is an interest to which this Court may give determinative legal 

weight. 

Chisom’s holding did not rest so much on the proposition that the 

1982 amendment to section 2 plainly covers judicial elections as it did on 

the proposition that the amendment did not plainly retreat from pre-1982 

coverage of such elections. It does not follow, however, that the 1982 

Congressional extension of the Constitution's independent reach from 

intentional discrimination to effective discrimination constituted a 

legislative repeal of the preexisting role of the federal judiciary in weighing 

3. 

 



   

  

the asserted state interest in discrimination cases and certainly not in 

discrimination cases involving state judicial systems. Gregory's teaching, 

conveniently ignored by the plaintiff-appellees, is that, with regard to 

something as crucial to the states’ independent existence as their judicial 

systems, Congressional action under the enforcement powers given by the 

Civil War Amendments must plainly specify its target. 

Nothing in the language and nothing in the extensive legislative 

history of the 1982 amendment to section 2 of the Voting Rights Act 

discloses a Congressional intent concerning state judicial elections to 

convert the weighing of the state's interest into nothing but a "factor" to be 

weighed as seen fit by the trial judge. The weight of the state interest in 

challenges to judicial elections remains, and how it balances with the myriad 

other factors in the totality of the circumstances, remains a legal issue under 

the statutory regime of section 2 just as it is under the constitutional regime 

of the Equal Protection Clause. 

Thus, the clearly erroneous rule does not tether this Court to the 

weight the trial court gave to the state interest in judicial independence, 

accountability, and, ultimately, legitimacy. This Court may perform its own 

balancing, just as it does in equal protection analysis. 

LULAC and Oliver argue that the Court may not undertake such an 

independent legal weighing, even in equal protection cases. LULAC Remand 

Brief 11; Oliver Remand Brief 17. The law of this circuit is directly to the 

contrary. In an en banc opinion by Judge Goldberg, in a case involving a 

state judge, after observing that the asserted state interest of maintaining 

the independence of its judges was entitled to the "greatest respect," and 

after noting that the "judicial office is different in key respects from other 

offices," this Court reversed the trial court's finding that a state statute 

-4- 

 



regarding judges violated the Equal Protection Clause. Morial v. Judiciary 

Commission of the State of Louisiana, 565 F.2d 295, 302, 304-06 (5th Cir. 

1977), cert. denied, 435 U.S. 1013 (1978). There was not the slightest 

mention, or concern, about the clearly erroneous rule and whether it 

permitted the reversal. The Court simply weighed the state interest against 

the claimed rights as federal courts always do in these types of cases: as a 

legal matter (although admittedly and necessarily based on the detailed facts 

found by the trial court). 

The approach in Morial is the proper approach here. The 1982 

amendment to section 2 did not invalidate it, Gregory reinforces it, and the 

plaintiffs have not refuted it. 

Judicial independence is a matter of critical importance and is to be 

given special weight. The Supreme Court recognized it over a century ago 

when it adopted the doctrine of absolute judicial immunity to further "that 

independence without which no judiciary can be either respectable or 

useful." Bradley v. Fisher, 13 Wall. 335, 347 (1872). Section 2's elongation 

of the constitutional reach, and its complete silence with respect to state 

judicial systems, did not lessen the relative importance of such 

independence in the weighing process demanded in the statute. Holding 

that it did would seem perverse; if anything, the relative weight to be 

accorded the state's interest in an independent judiciary should be 

increased, not lessened, when principles of federalism already are stretched 

as far as they have been here.  



   

II. 

THE STATE CONSISTENTLY MAINTAINS THE INDEPENDENCE- 
ENHANCING LINKAGE BETWEEN THE ELECTORAL AND JURISDICTIONAL 

BASES OF ITS ELECTED DISTRICT JUDGES 

LULAC, HLA, and Oliver find flaws in the linkage which the state 

asserts is so important to the integrity of its district judge system. They 

criticize it for not being perfect and would have the Court ignore it because 

of the imperfections they find. 

One of their principal attacks on the linkage argument is their claim 

that Article 5, § 7ali), of the Texas Constitution reflects the state's 

inconstancy in devotion to the linkage it claims is so important. They argue 

that the provision reveals that Texas turned its back on the linkage in 1985 

by amending the state constitution to permit the linkage to be broken by the 

voters of a county. 

There are two problems with their argument. First, under § 7ali), 

matters do not end with the county voters' passing a general election 

proposition to allow the creation of judicial districts composed of parts of 

the county. County passage of such a proposition merely permits one of 

three state bodies -- the legislature, the Judicial Districts Board, or the 

Legislative Redistricting Board -- to redistrict judicial districts smaller than 

the county in question. The proposition's county passage does not require 

such a break with the virtually unbroken Texas tradition of more than a 

century of not having smaller-than-county judicial districts. 

The second flaw in the plaintiffs’ argument is that such a proposition 

has never been put on the ballot, has never passed, and, necessarily, never 

been presented as a fait accompli to one of the three authorized state 

judicial redistricting bodies. Thus, § 7ali) has not broken the link. It only 

 



   

  

sets up a never-invoked mechanism, short of constitutional amendment, 

which would authorize breaking the link. 

The plaintiffs and the United States also question the constancy of the 

state in maintaining the link by pointing out that Texas justices of the peace 

are elected from smaller-than-countywide districts. Texas, of course, is not 

before this Court defending its justice of the peace electoral system. It is 

defending its district court electoral system. That justices of the peace, who 

need not be lawyers, who typically hear cases of a very different type than 

district courts, and whose decisions are subject to trial de novo appeals to 

state county or district courts, see TEX. R. CIv. P. 574a, are elected in a 

certain way says nothing about the state's interest in maintaining the 

jurisdictional and electoral base linkage for district courts. It is a legal 

irrelevancy, about which there appears to have been no evidence offered at 

trial. 

The plaintiffs also denigrate the asserted state interest by arguing that 

district courts in Texas have statewide jurisdiction and that therefore there 

is not now, and in fact has never been, the kind of linkage the state finds so 

important. The link Texas relies on is between the electoral base and the 

primary jurisdictional base, which indisputably is the county. 

Anomalies, necessary ones at that, do not make the plaintiffs’ case of 

inconsistency. It is impossible in a modern commercial society to narrowly 

confine the jurisdiction of state trial courts of general jurisdiction. It is 

possible to establish rules for what the crucial connections must be, and in 

Texas the law firmly establishes that there must be a reasonably strong 

connection between the county in which the presiding district judge sits 

and the events around which the lawsuit will revolve. The county is the 

lodestar. Even in the many cases whose venue is deemed proper, or 

7. 

 



  

   
necessary, in Travis County, the connection is present because those cases 

typically involve state governmental action, and Travis County is the seat of 

state government. 

Criminal cases, juvenile cases, family cases, and the vast majority of 

business disputes arise within the county (or, counties) forming the judicial 

district. The law dictates that the disputes be heard by the judges in the 

counties where they originated. There is no serious dispute but that district 

judges dispense justice for the people of their community -- the people who 

may vote in the judicial races. 

Finally, the plaintiffs point to testimony from Chief Justice Phillips 

that Texas permits the assignment of visiting judges outside the county in 

which they were elected. There is no testimony or other evidence from the 

plaintiffs about the frequency of this practice. 

The only evidence is that offered by the state in D. Ex. 2 and D. Ex. 3, 

which are excerpts from the annual reports on the Texas judiciary by the 

Texas Judicial Council for the years 1986-87 and 1987-88. These exhibits 

reflect what anyone familiar with the Texas Judicial system knows. 

Assignments of sitting district judges outside their electoral area is an 

anomaly and makes up only a miniscule portion of the cases disposed of by 

the district courts across Texas, or the district courts targeted in this 

lawsuit. For example, D. Ex. 3 reflects that, for the year examined, district 

courts in Texas made over 600,000 case dispositions in civil, criminal, and 

juvenile litigation. (The number of days' activity is not reflected, but it 

perforce must be much larger, probably approximating at least a million.) By 

contrast, the exhibit, on its third page, also reflects that the assignment of 

sitting district judges outside their primary jurisdiction resulted in about 

1,800 total days of such service. This is but a blip on the screen. It hardly 

-8- 

 



   

reflects desertion by the state of its linkage of jurisdiction and electoral 

bases. 

That practical considerations result in incidental, temporary breaks in 

the linkage does not erase the linkage as a central facet of district courts in 

Texas. Consistency does not require perfection. What Texas has done is 

enough to demonstrate consistency. 

The fact remains that the link exists, that it has existed essentially 

unperturbed for over a century, and that no racially discriminatory intent 

lies behind it. The plaintiffs attack the link and would permanently break it. 

Although they make occasional feints toward alternative remedies to 

subdistricting, they offered no evidence at trial about their viability or their 

ability to remedy the violations they claim exist in the current electoral 

structure. The opportunity was there, for they did offer evidence of their 

ability to draw subdistricts which would remedy the violations they allege. 

Yet, they did nothing to explain in the record what could be done with 

alternative remedies. 

 



NCLUSION 

For the reasons offered here and in the opening brief on remand, the 

state urges the Court to act as prayed for in that opening remand brief. 

Respectfully submitted, 

DAN MORALES 
Attorney General of Texas 

WILL PRYOR 
First Assistant Attorney General 

MARY F. KELLER 
Deputy Attorney General 

oe * 

fe) Cnoa_ Wel 
RENEA HICKS 
Special Assistant Attorney General 

  

JAVIER GUAJARDO 
Special Assistant Attorney General 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

ATTORNEYS FOR 
STATE DEFENDANTS-APPELLEES 

 



CERTIFICATE OF SERVICE 

I certify that on this 23rd day of October, 1991, I sent two 
copies of the foregoing document by first class United States mail, 
postage prepaid, to each of the following: William L. Garrett, Garrett, 
Thompson & Chang, 8300 Douglas, Suite 800, Dallas, Texas 75225; 
Rolando Rios, Southwest Voter Registration & Education Project, 201 
N. St. Mary's, Suite 521, San Antonio, Texas 78205; Sherrilyn A. Ifill, 
NAACP Legal Defense and Educational Fund, Inc., 99 Hudson Street, 
16th Floor, New York, New York 10013; Gabrielle K. McDonald, 7800 
N. Mopac, Suite 215, Austin, Texas 78750; Edward B. Cloutman, III, 
3301 Elm Street, Dallas, Texas 75226-1637; E. Brice Cunningham, 
777 South R. L. Thornton Frwy., Suite 121, Dallas, Texas 75203; J. 
Eugene Clements, Porter & Clements, 3500 NCNB Center, 700 
Louisiana, Houston, Texas 77002-2730; Robert H. Mow, Jr., Hughes & 
Luce, 1717 Main Street, Suite 2800, Dallas, Texas 75201; Jessica 
Dunsay Silver, Department of Justice, P. O. Box 66078, Washington, D. 
C. 20035-6078; Susan Finkelstein, Texas Rural Legal Aid, Inc., 405 N. 
St. Mary's, Suite 910, San Antonio, Texas 78205; David R. Boyd, Balch 
& Bingham, P. O. Box 78, Montgomery, Alabama 36101; Susan E. Russ, 
Miller, Hamilton, Snider & Odom, One Commerce Street, Suite 802, 
Montgomery, Alabama 36104; Fournier J. Gale, III, Maynard, Cooper, 
Frierson & Gale, 2400 AmSouth Tower - Harbert Plaza 1901 6th 
Avenue, North, Birmingham, Alabama 361010; Walter S. Turner, Office 
of the Attorney General, 11 South Union Street, Room 303, 
Montgomery, Alabama 36130; ; Tom Maness, Jefferson County 
Courthouse, Beaumont, Texas 77701; Seagal V. Wheatley, 
Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., 711 Navarro, 
Sixth Floor, San Antonio, Texas 78205; and Russell W. Miller, 3300 
Texas Commerce Tower, Houston, Texas 77002. 

(ong Yond, 
  

Renea Hicks