State Defendants' Proposed Pre-Trial Order

    THE ATTORNEY GENERAL 

OF TEXAS 

JIM NMATTOX 
ATTORNEY GENERAL September 11 1989 

bd 

HAND-DELIVERED 
  

John D. Neil 

Deputy U. S. District Clerk 
200 E. Wall, Room 316 

Federal Building 
Midland, Texas 79701 

Re: LULAC Council #4434, et al. v. Mattox, et al., 

No. MO-88-CA-154 

Dear Mr. Neil: 

Enclosed for filing in the above-referenced matter are the original 

and one copy of the State Defendants’ Proposed Pretrial Order, with 

attachments. 

Sincerely, 

a 
Renea Hicks 

Special Assistant Attorney General 

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

CC: Counsel of record 

312/163-2100 SUPREME COURT BUILDING AUSTIN, TEXAS TRTI1I=-25108 

 



  

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND-ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 

Plaintiffs, 

Civil Action No. 

MO-88-CA-154 

VS. 

JIM MATTOX, et al., 

Defendants. LO
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STATE DEFENDANTS' PROPOSED PRE-TRIAL ORDER 

The State Defendants -- that is, the Attorney General of Texas, 

the Secretary of State of Texas, and the thirteen members of the 

Judicial Districts Board of Texas, all in their official capacities -- 

submit the following proposed pre-trial order: 

[The State Defendants adopt the introductory paragraph and 

9 1-3 of the pre-trial order submitted by the plaintiffs ("plaintiffs’ 

pre-trial order").] | 

4. In general, the State Defendants claim that the present 

system of the State of Texas for electing judges to the one hundred 

seventy judicial districts challenged by the plaintiffs, including those 

challenged by the plaintiff-intervenors: (a) is not covered by the 

strictures of Section 2 of the Voting Rights Act; (b) is not a multi- 

member at-large electoral system, but instead is a system of one 

hundred seventy single member electoral districts; (c) in no instance 

dilutes the voting strength of eligible minority voters; (d) was not 

created and is not being maintained for the purpose of diluting the 

voting strength of eligible minority voters on the basis of their race. 

The State Defendants further maintain that Section 7a(i) of Article 5 

 



  

of the Texas Constitution was not created and is not being maintained 

for the purpose of discriminating against eligible minority voters on 

the basis of their race. 

[The State Defendants adopt § 4 of the plaintiffs’ pre-trial 

order.] 

5. The following facts and issues not in genuine dispute are 

established by the pleadings or are established by the stipulations or 

admissions of counsel: 

The Court has jurisdiction over the subject matter of this action. 

Venue is proper in this Court. 

The numbers listed under the "COURT" column in § 27 of the 

plaintiffs’ Second Amended Complaint are the only judicial districts 

under challenge in this action, except for the following judicial 

districts which no longer are under challenge in this action: in 

Galveston County, the 10th, 56th, 122nd, 212th, and 306th; in 

McLennan County, the 19th, 54th, 74th, and 170th; in Fort Bend 

County, the 240th, 268th, and 328th; in Smith County, the 7th, 114th, 

and 321st; in El Paso County, the 41st, 65th, 120th, 168th, 171st, 

243rd, 346th, and 327th; and in the combined counties of Hudspeth, 

Culberson, and El Paso, the 34th, 205th, and 210th. 

No claim is being made on behalf of eligible Hispanic voters as 

to the judicial districts in Dallas and Harris Counties. 

No claim is being made on behalf of eligible Black voters as to 

the judicial districts in Travis County. 

[The State Defendants anticipate that further stipulations will 

be made before trial commences, if time permits.] 

6. The contested issues of fact are: 

bi i 0 

 



  

Whether any of the challenged electoral systems have the 

effect of diluting minority voting strength? 

Whether any of the challenged electoral systems were created 

or are being maintained for the purpose of discriminating against 

eligible minority voters on the basis of their race? 

[The State Defendants adopt § 6 of the plaintiffs’ pre-trial 

order.] 

7. The contested issues of law are: 

Whether measuring the electoral success of minority 

candidates against the proportion of eligible minority voters instead 

of against the proportion of eligible minority lawyers would violate 

the prohibition in Section 2 of the Voting Rights Act against creating 

a right to proportional representation? 

Whether LULAC, LULAC #4434, and LULAC #4451 have 

standing to assert the rights of eligible black voters in any of the 

counties where those rights are claimed to be violated? 

Whether the plaintiffs may demonstrate compliance with the 

first Gingles factor (geographically compact, "safe" minority district) 

without excluding from those included in the district those persons 

who are not U. S. citizens? 

Whether the system in the State of Texas for selecting persons 

to serve in the office of state district judge is sufficiently removed 

from a pure electoral system to make the holding in the Fifth Circuit 

case of Chisom v. Edwards inapposite? 

Whether each of the one hundred seventy judicial districts 

under challenge in this action is a single member district which, as a 

 



matter of law, cannot result in the dilution of the rights under 

Section 2 or the U. S. Constitution of eligible minority voters? 

Whether the 72nd Judicial District (the only judicial district 

under challenge which is comprised of Lubbock County and Crosby 

County) is a single member district which, as a matter of law, cannot 

result in the dilution of the rights under Section 2 or the U. S. 

Constitution of eligible minority voters? 

Whether the plaintiffs’ burden of persuasion under each of the 

three threshold Gingles elements is by clear and convincing evidence, 

instead of by a preponderance of the evidence? 

[The State Defendants adopt § 7 of the plaintiffs’ pre-trial 

order.] 

8. The following exhibits were marked and received in 

evidence: 

[The State Defendants adopt § 8 of the plaintiffs’ pre-trial 

order. ] 

The State Defendants’ exhibits (except, in some instances, those 

to be offered solely for impeachment or rebuttal as indicated in Local 

Rule 300-6(c)) are listed on Attachment A to this draft pre-trial 

order. 

9, No proposed jury instructions are necessary, because this 

trial is to the Court. 

10. All amended pleadings have been filed. 

11. The following additional matters, to aid in the disposition 

of the action were determined:  



  

12. Based on the Court's indications that eight trial days 

would be allotted for this case, the State Defendants estimate that 

presentation of their case will take approximately three trial days. 

13. The proposed findings of fact and conclusions of law of 

the State Defendants are attached hereto as Attachment B. 

14. A list of the witnesses (except those to be used for 

impeachment only) for the State Defendants, together with a brief 

statement as to what their testimony will be, is attached hereto as 

Attachment C. 

15. All discovery in this case has been completed. 

16. An attorney's conference, as required by Order 

Preliminary to Pre-Trial Conference, was held on September 

1989. 

T——— 

17. Each party has advised the other generally with respect 

to all deposition questions and answers to be offered in evidence, but 

objections thereto have not yet been furnished. They will, however, 

be ready for presentation to the Court at the pre-trial conference if 

one 1s conducted. 

18. Memorandum briefs have not yet been furnished to 

either to the Court or opposing counsel with respect to all unusual 

questions of law. If the Court permits, the State Defendants would 

appreciate the opportunity to submit post-trial memorandum briefs 

and post-trial supplements to proposed findings of fact and 

conclusions of law. It is the State Defendants’ belief that the size and 

complexity of this case is such that post-trial briefing would greatly 

benefit the Court in disposing of it. 

 



  

[The State Defendants adopt qf 19-26 of the plaintiffs’ pre- 

trial order.] 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

Ae on Lh ol 
RENEA HICKS \ 
Special Assistant Attorney General 

    

JAVIER GUAJARDO 
Assistant Attorney General 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

(512) 463-2085 

ATTORNEYS FOR STATE 

DEFENDANTS 

CERTIFICATE OF SERVICE 

I certify that on this 11th day of September, 1989, I sent a 
copy 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; 

Sherrilyn A. Ifill, NAACP Legal Defense and Educational Fund, Inc., 99 

Hudson Street, 16th Floor, New York, New York 10013; Gabrielle K. 

McDonald, 301 Congress Avenue, Suite 2050, Austin, Texas 78701; 

Edward B. Cloutman, III, Mullinax, Wells, Baab & Cloutman, P.C., 3301 

Elm Street, Dallas, Texas 75226-1637; J. Eugene Clements, Porter & 

Clements, 700 Louisiana, Suite 3500, Houston, Texas 77002-2730; 

 



and Robert H. Mow, Jr., Hughes & Luce, 2800 Momentum Place, 1717 

Main Street, Dallas, Texas 75201. 

Ne IND HC < ty 

  

  

Renea Hicks 

 



  

ATTACHMENT A 
  

STATE DEFENDANTS' EXHIBITS 
(except impeachment, rebuttal, and those exhibits 
attached to deposition which are being admitted by 

agreement in lieu of live testimony)* 

D-1 Table of District Judge Races (1980-1988) 

D-2 Texas Judicial Council Annual Report (1987) 

D-3 Texas Judicial Council Annual Report (1988) 

D-4 Eligible Pool of Minority Lawyers By County 

D-5 Harris County elections (1980-1988) 

D-6 Dallas County elections (1980-1988) 

D-7 Bexar County elections (1980-1988) 

D-8 Travis County elections (-1988) 

D-9 Jefferson County elections 

D-10 Lubbock County elections 

D-11 Ector County elections 

D-12 Midland County elections 

D-13 Estimated VAP By Tract (Ector County) 

D-14 District Map (Ector County) 

D-15 Summary Total Registered Voters Travis County & 

Democractic and Republican Primary Vote 1972-1988 

D-16 Travis County Democratic Primary Vote by Precinct 

1984-1986-1988 

  

: The work of the experts for the State Defendants is not yet completed. 
Further exhibits may be competed as they complete their analyses. 

A-1 

 



D-17 Analysis Key Precincts 1984-1986 & 1988 Democractic 

Primary 

D-18 Precinct Map Travis County 1988 

D-19 Shaded Maps for Barrientos Moore - 1984 Runoff 

D-20 Shaded Maps Gonzales Sup. Ct. Race 1986 

D-21 Shaded Map 1988 McCown Primary 

D-22 Shaded Map 1987 Austin City Council Election 

D-23 1988 Republican Primary By Precinct 

D-24 1987 Austin City Council Election Returns 

D-25 Newspaper Endorsements McCown-Gallardo Daily Texas, 

Austin Chronicle Austin American Statesman 

Travis County Bar Poll Results 

Gallardo Campaign Mailings 

McCown Campaign Mailings 

Endorsement Mailins & Door Hangers 1988 Primary 

(a) Austin Progressive Coalition 

(b) Northeast Austin Democrats 

(c) West Austin Democrats 

(d) Democratic Women 

Deposition of Becky Beaver 

Deposition of Fernando Rodriguez 

Deposition of Judge Anthony Ferro 

Deposition of Tom Hannah 

Deposition of Lawrence Fuller  



ATTACHMENT B 

STATE DEFENDANTS' PROPOSED FINDINGS OF FACT 
AND CONCLUSIONS OF LAW 

FINDINGS OF FACT 
  

1. The system in the State of Texas for selecting state 

district judges is different in fundamental respects from electoral 

systems for selecting persons to fill Congressional, state legislative, 

city council, county commissioner, and other legislative and executive 

positions. For the judicial district positions in the counties involved 

in this lawsuit, many are filled initially by gubernatorial 

appointment, followed by unopposed races in both the primaries and 

general elections. The minimal eligibility requirements are far more 

stringent and, unlike any other public electoral races, have 

substantial educational requirements. Also, others (such as senior 

judges and former district judges who were defeated in an election) 

may temporarily perform the duties of office of the incumbent by 

presiding over judicial matters for varying lengths of time. 

2. The function of state district judges in Texas is different 

than the function of other elected officeholders, including appellate 

judges in Texas. State district judges do not engage in collegial 

decisionmaking or policy-making; instead, each one acts as a unitary 

decisionmaker. In this regard, they are more akin to sheriffs than to 

city council members. 

3 Since the inception of the State of Texas, the basic unit of 

government has been the county. 

B-1  



  

4. In Harris County, there are fifty-nine judicial districts 

and fifty-nine district judges. Of the incumbent judges, three (5%) 

are Black, three are Hispanic, and the rest are Anglo. Of the 

attorneys eligible to serve as district judge in Harris County, 3.8% are 

Black. 

5. In Dallas County, there are thirty-six judicial districts and 

thirty-six district judges. Of the incumbent judges, two (5.6%) are 

Black, one is Hispanic, and the rest are Anglo. Of the attorneys 

eligible to serve as district judge in Dallas County, 1.0% are Black. 

6. In Tarrant County, there are twenty-three judicial 

districts and twenty-three district judges. Of the incumbent judges, 

two (8.7%) are Black, and the rest are Anglo. Of the attorneys eligible 

to serve as district judge in Tarrant County, 2.4% are Black, and 1.2% 

are Hispanic. 

7. In Bexar County, there are nineteen judicial districts and 

nineteen district judges. Of the incumbent judges, five (26.3%) are 

Hispanic, and the rest are Anglo. Of the attorneys eligible to serve as 

district judge in Bexar County, 1.2% are Black, and 11.38% are 

Hispanic. 

8. In Travis County, there are thirteen judicial districts and 

thirteen district judges. All of the incumbents are Anglo. Of the 

attorneys eligible to serve as district judge in Travis County, 2.7% are 

Hispanic. 

9. In Jefferson County, there are eight judicial districts and 

eight district judges. All of the incumbents are Anglo. Of the 

attorneys eligible to serve as district judge in Jefferson County, 3.1% 

are Black, and .6% are Hispanic. 

B-2 

 



  

10. In Lubbock County, there are four judicial districts and 

four district judges. All of the incumbents are Anglo. Of the 

attorneys eligible to serve as district judge in Lubbock County, none 

is Black, and 5.1% are Hispanic. 

11. In Lubbock and Crosby County together, there is one 

judicial district and one district judge. He is Anglo. Of the attorneys 

eligible to serve as district judge in Lubbock and Crosby Counties, 

none is Black, and approximately 5% are Hispanic. 

12. In Ector County, there are four judicial districts and four 

district judges. All of the incumbents are Anglo. Of the attorneys 

eligible to serve as district judge in Ector County, .8% are Black, and 

3.2 % are Hispanic. 

13. In Midland County, there are three judicial districts and 

three district judges. All of the incumbents are Anglo. Of the 

attorneys eligible to serve as district judge in Midland County, .9% 

are Black, and 2.3% are Hispanic. 

14. In each of the counties involved in this lawsuit, an 

eligible voter may cast one vote in the election for district judge in 

each of the judicial districts in the county. A candidate for district 

judge must designate the judicial district for which he or she seeks 

election. The basic term of office of a district judge is four years. 

Elections are staggered at two-year intervals over a four year span. 

15. In all the counties involved in this lawsuit, the voting 

patterns for state district judges reflect a basic similarity. Blacks 

vote overwhelmingly for Democratic candidates. Hispanics do, too, 

although slightly less so. Anglos split into two basic groups which 

vary in relative size from county to county, one that consistently 

B-3 

 



  

votes for the Democratic candidate and one that consistently votes 

for the Republican candidate. These patterns remain basically 

consistent regardless of the ethnicity of the judicial candidate. Thus, 

the voting patterns in the counties involved in this lawsuit reveal 

bloc voting, but it is by party, not race. The nature of judicial district 

elections in Texas -- their low visibility to the electorate, the 

predominating tendency of the electorate to vote straight party 

tickets for down-ballot races such as judicial ones, the absence of 

issues -- is such that racially polarized voting cannot be discerned in 

the analyses presented to the Court. 

Harris County 
  

16. [The State Defendants generally adopt the findings of fact 

proposed by Defendant-Intervenor Wood.] 

Dallas County 
  

17. [The State Defendants generally adopt the findings of fact 

proposed by Defendant-Intervenor Entz.] 

Tarrant County 
  

18. The plaintiffs have failed to establish that whites vote 

consistently as a bloc so as usually to deny victory to black 

candidates for district judge. As their own expert admitted, the only 

two district judge races analyzed by the plaintiffs -- two 1986 

general election races in which Black and Anglo candidates opposed 

each other -- reveal no racially polarized voting. Furthermore, the 

other race they analyzed -- the 1988 Democratic Presidential 

Primary race -- reveals no racially polarized voting. In that race, 

Jesse Jackson, a Black candidate, was on the ballot with five Anglo 

contenders for the nomination. Simply dividing 100% by six (the 

B-4 

 



  

number of candidates) shows that each would receive 16.7% of the 

vote, including 16.7% of the votes of Anglos and the same percentage 

of the votes of Blacks, were the votes evenly split. The plaintiffs’ 

own analysis is that Jackson got approximately this percentage of the 

Anglo vote. This race alone demonstrates non-racially polarized 

voting. When combined with the other two analyzed races, it 

conclusively demonstrates (from the plaintiffs’ own evidence) non- 

racially polarized voting in Tarrant County. 

Bexar County 
  

19. The plaintiffs’ analysis of the voting patterns here fail to 

demonstrate racially polarized voting to any degree and certainly not 

to the degree required to reach legal significance. Instead, the 

analysis reveals the polarization of voters along party, not racial, 

lines. A comparison of two races illustrates the point. In the 1988 

general election contest for the 225th Judicial District between 

Serrata (Democrat, Hispanic) and Special (Republican, Anglo), the 

plaintiffs’ analysis is that Serrata, who lost the contest, got 28% of the 

Anglo vote. In the 1982 general election contest for the 144th 

Judicial District between Barrera (Republican, Hispanic) and 

Stohlhandski (Democrat, Anglo), the plaintiffs’ analysis is that 

Barrera, who won the contest, got 77% of the Anglo vote. What this 

analysis reveals is that the Anglos voted overwhelmingly for the 

Republican judicial candidate, regardless of the candidate's ethnicity. 

It does not reveal racially polarized voting, and it does not reveal 

that Anglos vote consistently as a bloc so as usually to deny minority 

voters the opportunity to elect the candidate of their choice. 

B-5 

 



  

20. A further indication that at-large elections in Bexar 

County do not operate to submerge the voting power of Hispanics is 

the large number of Hispanic candidates who are elected in county- 

wide races. In addition to the five Hispanic district judges elected, a 

county-court-at-law judge (Canales) was elected. The top vote getter 

in the county in 1988 was Rudy Garza, the Hispanic candidate for 

County Treasurer. 

Travis County 
  

21. The plaintiffs have failed to demonstrate that they can 

draw a geographically compact district comprised of at least a 50% 

voting age population of Hispanic voters. Because evidence shows 

that Black and Hispanic voters in the county are not politically 

cohesive, a combined minority district would be inappropriate. 

22. Travis County has shown a consistent pattern of voting 

Hispanic candidates into office from majority Anglo districts. State 

Senator Gonzalo Barrientos and State Representative Lena Guerrero 

are regularly returned to office by large margins from majority 

Anglo districts. In his two races in 1986 and 1988 for the state 

Supreme Court, Justice Raul Gonzalez won by large margins in Travis 

County against an Anglo opponent, receiving a majority of the Anglo 

vote in the process. In the 1986 Democractic primary runoff for 

County Treasurer, a Hispanic candidate (Ortega-Carter) defeated her 

Anglo opponent. 

23. The two 1988 Democratic primary races for judicial 

positions in Travis County, which the plaintiffs have analyzed, do not 

detract from the force of the preceding observations. In the contest 

between Gallardo (Hispanic) and McCown (Anglo) for the Democratic 

B-6 

 



nomination to run for the 345th Judicial District, Gallardo as the 

losing candidate garnered more than a third of the Anglo vote. He 

did this in what witnesses described as a politically sophisticated 

area, despite having ranked at the bottom of the influential Travis 

County Bar Poll, despite having gained a reputation for bizarre 

courtroom behavior, and despite having antagonized some influential 

local political interests (such as the environmental community) 

through his courtroom actions. His opponent was an unusually well- 

qualified judicial candidate, having (among other things) taught law 

at the University of Texas School of Law. McCown also received the 

overwhelming endorsement of the progressive political coalitions 

which are the most influential in Democractic primaries. 

The contest for the Democratic nomination for a county-court- 

at-law position between Garcia (Hispanic) and Phillips (Anglo) 

resulted in a loss for the Hispanic candidate, who still garnered a 

third of the Anglo vote. In this race for a Democratic party 

nomination, the candidacy of the Hispanic candidate was severely 

undermined when his 1986 endorsement of the Republican 

candidate for Texas Attorney General became known to the Austin 

Progressive Coalition, among the most influential political 

organizations in the county. 

These two races can only be seen as presenting special 

circumstances and do not override the clear indications in other 

races, both for judicial positions and for others, that whites 

consistently vote as a bloc so as to support, rather than oppose, the 

preferred candidate of Hispanic voters. This finding is consistent 

with the findings with regard to the dominant city in Travis County 

B-7  



  

in the recent decision of Overton v. City of Austin, 871 F.2d 529 (5th 

Cir. 1989) (affirming Judge Nowlin's finding that at-large city council 

elections in Austin did not dilute minority voting strength). 

Jefferson County 
  

24. Nearly all the races analyzed by the plaintiffs for this 

county involve sub-units of the county, not the county itself. Only 

two county-wide races (one in 1978 and 1988) were analyzed, and, 

in the more recent of the two, the choice of the Black voters won. 

More importantly, the evidence shows that a county-wide judicial 

race not analyzed by the plaintiffs resulted in an overwhelming 

victory for the Black judicial candidate against an Anglo opponent. 

In that 1984 race for county-court-at-law between a Black (Don 

Floyd) and his Anglo opponent, the Black candidate received the 

overwhelming support of Anglo voters, as well as Black voters. 

When combined with the county-wide 1988 Democratic Presidential 

primary results, in which Jesse Jackson won, the Floyd race refutes 

any argument that whites vote consistently as a bloc so as usually to 

deny Black voters the opportunity to elect candidates of their choice. 

Lubbock County 
  

25. The plttntiths have Tailed to demonstrate that they can 

draw a geographically compact district comprised of at least a 50% 

voting age population of either Hispanic or Black voters. Because the 

evidence shows that Black and Hispanic voters in the county are not 

politically cohesive, a combined minority district would be 

inappropriate. 

26. Ms. Mercado, the plaintiffs’ own witness, presented the 

evidence about the lack of cohesiveness between Blacks and 

B-8 

 



  

Hispanics. In a judicial race, for Justice of the Peace, a Black 

Republican candidate defeated an Hispanic Democratic candidate, 

garnering most of the Black vote. Also, a Black Republican 

successfully ran twice for State Representative against an Hispanic 

Democrat, again, according to Ms. Mercado, garnering most of the 

Black vote. In the light of this evidence, the Court must conclude 

that Blacks and Hispanics are not politically cohesive. 

  

Ector County 

27. The plaintiffs have failed to demonstrate that they can 

draw a geographically compact district comprised of at least a 50% 

voting age population of minority voters in this county. Even 

assuming that Black and Hispanic voters are politically cohesive, no 

geographically compact district can be drawn. 

Midland County 
  

28. The plaintiffs have failed to demonstrate racially 

polarized voting in judicial races here. They analyzed countywide 

results in only one judicial race -- the 1986 general election contest 

for the state Supreme Court. Whatever they may mean, the results 

here are insufficient for the plaintiffs to carry their burden of proof. 

Additionally, even that limited analysis suggests that the voting was 

strictly along political party lines, not racial ones. 

29. In none of the counties involved in this lawsuit have the 

plaintiffs demonstrated that the votes of Black, Hispanic, or combined 

minority voters are being diluted by the electoral systems under 

challenge. 

30. There is no evidence that any of the electoral systems 

under challenge, including Section 7a(i) of Article 5 of the Texas 

B-9 

 



  

Constitution, were created or are being maintained for racially 

discriminatory purposes. 

CONCLUSIONS OF LAW 

1. Because no intentional racial discrimination has been 

shown with regards to the challenged electoral systems, there is no 

violation of either the Fourteenth or Fifteenth Amendments to the 

United States Constitution. 

Section 2 of the Voting Rights Act does not cover judicial 

elections. Even if it does cover appellate judicial elections, as the 

Fifth Circuit held in Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988, 

cert. denied, 109 S.Ct. 390 (1989), it does not cover the state district 

judge elections at issue here. Furthermore, because the judicial 

districts under challenge here already are single-member districts, 

there is no at-large electoral system involved which can dilute the 

voting strength of minority voters. Cf. Butts v. City of New York, 779 

F.2d 141 (2d Cir. 1985) (single member offices cannot be the basis 

for Section 2 claims). 

3. Thornburg v. Gingles, 106 S.Ct. 2752 (1986), is the 

principal case interpreting Section 2 as it was amended in 1982. It 

established a three-part threshold test to determine whether a vote 

dilution claim has been made out and placed the burden on the 

plaintiffs for each part of the test. First, the plaintiffs must 

demonstrate that a "safe" minority district can be created by drawing 

a geographically compact district. In Brewer v. Ham, 876 F.2d 448, 

452 (5th Cir. 1989), the court set the standard for this first Gingles 

factor at fifty percent voting age population. Second, the plaintiffs 

B-10 

 



  

must demonstrate that the minority voters are politically cohesive. 

Merely proving that the minority group votes as a bloc for minority 

candidates does not establish this Gingles factor. Monroe v. City of 

Woodville. “F.2d. i (3th Cir. Aug. 30, 1989) Third, the 

plaintiffs must demonstrate that whites votes consistently as a bloc 

so as usually to deny minority voters the opportunity to elect 

candidates of their choice. Failure to meet any one of these tests is 

fatal to a plaintiff's case. Overton v. City of Austin, 871 F.2d 529, 538 

(5th Cir. 1989). 

4. The plaintiffs failed to meet the first Gingles factor (the 

ability to draw a safe minority district) for the twenty-seven judicial 

districts in Travis, Lubbock (and Crosby), Ector, and Midland 

counties. Therefore, their claim fails as to those districts and 

counties. 

8. The plaintiffs failed to meet the third Gingles factor 

(white bloc voting) for any of the judicial districts in any of the 

counties involved in this lawsuit. Therefore, their claim fails in its 

entirety. 

6. The relevant pool for determining whether minority 

candidates for district judge in Texas are being elected in a way that 

provides legally adequate representation is the pool of eligible 

minority lawyers, not the pool of eligible minority voters. Recent 

Supreme Court decisions establish this legal proposition on both 

constitutional and statutory grounds. See City of Richmond v. J. A. 

Croson Co., 109 S.Ct. 706, 725-26 (1989) (constitutional) and Wards 

Cove Packing Co. .v. Atonio, 109 S.Ct." >.“ (1989) (statutory). The 

applicability of these recently-developed legal principles to statutory 

B-11 

 



  

voting rights litigation is indicated by measuring the realities of 

judicial elections against Section 2's provision which states that 

nothing in it provides a right to proportional representation. 

Ignoring the special situation of the eligible pool in judicial elections, 

and comparing instead minority representation on the bench with 

the voters in general highlights that, in the latter instance, a right to 

proportional representation actually is what is being created. 

 



ATTACHMENT C 

STATE DEFENDANTS' WITNESS LIST 

(excludes impeachment witnesses) 

1. Chief Justice Thomas R. Phillips -- judicial function; basis for 
county-wide judicial elections; system for selecting state district 

judges in Texas 

> Dr. Delbert Taebel -- Gingles factors in all counties involved in 

this lawsuit, especially whether there is political cohesiveness among 
minority voters, meaningful racially polarized voting, and white bloc 

voting sufficient to usually defeat preferred candidates of minority 
voters 

3. Dr. Robert Stein -- Gingles factor of geographical compactness 

in Counties of Ector, Midland, Travis, and Lubbock 

4. Dr. James Dyer -- pool of minority lawyers eligible to serve as 
district judges in the counties involved in this lawsuit 

5. David R. Richards -- Gingles factors, except geographical 

compactness, in Travis County; political matters in Travis County 

6. Fernando Rodriguez (by deposition) -- Gingles factors in Travis 

County 

7: Becky Beaver (by deposition) -- Gingles factors in Travis 

County | 

8. Judge Anthony Ferro (by deposition) -- Gingles factors in Bexar 

County 

9, Judge Paul Canales -- Gingles factors in Bexar County 

10. Tom Hannah (by deposition)-- Gingles factors in Jefferson 

County 

11. Judge Felix Salazar -- Gingles factors in Harris County; judicial 

function  



12. Judge Louis Sturns -- Gingles factors in Tarrant County; judicial 

  

function 

13. Lawrence Barber (by deposition) -- Gingles factors in Ector and, 
to a lesser extent, Midland Counties 

14. Travis Shelton -- Gingles factors in Lubbock County; judicial 

function 

C-2