Correspondence from Ifill to McDonald with Complaint in Intervention; Motion of HLA Plaintiffs to Intervene; Memorandum in Support of Motion

    5 National Office » 

HL) Suite 1600 

i NAACP LEGAL DEFENSE 99 Hudson Street 

AND EDUCATIONAL FUND, INC. New York, N.Y. 10013 (212) 219-1900 Fax: (212) 226-7592 

December 12, 1988 

Ms. Gabrielle MacDonald, Esq. 
Matthews & Branscomb 
301 Congress Avenue 
Suite 3050 
Austin, TX 78701 

Dear Ms. MacDonald: 

It was a pleasure speaking with you today. I was doubly pleased 
to hear that you would be interested in acting as a cooperating 
attorney on our planned intervention in the LULAC v. Clements 
case, challenging the method of electing district judges in 
Texas. 

  

As I explained, LDF is planning to intervene on behalf of Black 
plaintiffs in Harris County. Our plaintiffs are the Houston 
Lawyers’ Association, and individual Black lawyers and community 
leaders. 

As per our discussion, I have enclosed our draft complaint in 
intervention. I have also enclosed the complaint originally 
filed by Rolando Rios of the Southwest Voter Registration Project 
on behalf of the LULAC plaintiffs. 

I understand that you still need to clear up technical matters at 
your office, before you can consent to help with the case. 
However, I hope that you will please contact me as soon as you are certain that you will be working with us, as I am anxious to file as soon as possible. 

Again, I enjoyed speaking with you, and I sincerely hope that we 
wlll be working together. 

Sincerely, 

Sherrilyn A. Ifill 
staff attorney 

enclosures 

Regional Offices 

Suite 301 Suite 800 

1275 K Street, NW 634 S. Spring Street 

Washington, DC 20005 Los Angeles, CA 90014 

(202) 682-1300 (213) 624-2405 

Fax: (202) 682-1312 Fax: (213) 624-0075 

Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part 
deductible for U.S. of the National Association for the Advancement of Colored People 
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its 

commitment to equal rights. LDF has had for over 30 years a separate 
Board, program, staff, office and budget.  



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 
MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 

(LULAC), et al., 

PLAINTIFFS 

Houston Lawyers’ Association 
Alice Bonner, Weldon Berry, Francis Williams, 
Rev. William Lawson, Deloyd T. Parker, 
Bennie McGinty 

PLAINTIFF-INTERVENORS, 

VS. 

    

No. 88-CA-154 

WILLIAM CLEMENTS, Governor of the State of 
Texas, JIM MATTOX, Attorney General of the State 
Texas; JACK RAINS, Secretary of State of the 
State of Texas, All in their official capacities; 
THOMAS R. PHILLIPS; JOHN F. ONION, JR. 
RON CHAPMAN; THOMAS J. STOVALL,JR.; JAMES F. 
CLAWSON, JR.; JOE E. KELLY; JOE B. EVINS; 
SAM B. PAXSON; WELDON KIRK; CHARLES J. MURRAY ; 
RAY D. ANDERSON; JOE SPURLOCK IX, All in their 
official capacities as members of the Judicial 
Districts Board of the State of Texas, 

  

  

DEFENDANTS. 

TT TTT TT "EN th ct i us Sh te rr SS tn SP i es ta X 

COMPIAINT IN INTERVENTION 

Introduction 

1. This action is brought by five Black registered voters and a 

membership organization of Black attorneys and registered voters 

in Harris County, Texas, who seek to intervene in MO 88 CA-154, 

LULAC v. Clements, for the purpose of protecting their interests   

i 

 



  

as Black voters in being able to participate equally in the 

political process and elect candidates of their choice in Harris 

County district judge elections. They allege that the at large 

judicial electoral districts scheme as currently constituted, 

denies Black citizens an equal opportunity to elect the 

candidates of their choice, in violation of section 2 of the 

Voting Rights Act of 1965 as amended, 42 U.S.C. § 1973, and the 

Fourteenth and Fifteenth Amendments of the United States 

Constitution. They also allege that Art. 5, 87(a)i of the 

Constitution of the State of Texas was adopted with the 

intention, and/or has been maintained for the purpose of 

minimizing the voting strength of Black voters, in violation of 

the Fourteenth and Fifteenth Amendments to the United States 

Constitution, 42 U.S.C. §1983, and section 2 of the Voting Rights 

Act of 1965 as amended, 42 U.S.C. §1973. Plaintiff-intervenors 

seek declaratory and injunctive relief enjoining the continued 

use of the current judicial electoral districts scheme. 

  

Jurisdiction 

2. This Court has jurisdiction pursuant to 28 U.S.C. 1331 and 

1343 and 42 U.S.C. § 1973j(f). This is an action arising under 

the statutes and Constitution of the United States and an action 

to enforce statutes and constitutional provisions that protect 

civil rights, including the right to vote. 

 



  

3. Plaintiffs seek declaratory and other appropriate relief 

pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 

2202. 

Parties 

4. Plaintiff-intervenor Houston Lawyers’ Association is a member 

organization of seventy Black attorneys who reside in the Harris 

County area, each of whom is a registered voter, qualified to 

vote for district judges in Harris County. As part of its 

organizational mission, the Houston Lawyers’ Association has 

worked to promote the fair representation of Blacks in the 

judiciary in Harris County. 

5. Plaintiff-intervenor Weldon Berry is an adult Black citizen 

of the United States who resides in Harris County, Texas. He is 

registered to vote, and is qualified to vote for district judges 

in Harris County. He was an appointed district judge who lost 

in an at large election in Harris County, Texas. 

6. Plaintiff-intervenor Francis Williams is an adult Black 

citizen of the United States who resides in Harris County, Texas. 

He is registered to vote and is qualified to vote for district 

judges in Harris County. He was an appointed district judge who 

lost in an at large election in Harris County, Texas. 

 



  

7. Plaintiff-intervenor Alice A. Bonner is an adult Black 

citizen of the United States who resides in Harris County, Texas. 

She is registered to vote, and is qualified to vote for district 

judges in Harris County. She was an appointed district judge who 

lost in an at large election in Harris County, Texas. 

8. Plaintiff-intervenor William Lawson is an adult Black citizen 

of the United States who resides in Harris County, Texas. He is 

registered to vote, and qualified to vote for district judges in 

Harris County. 

9. Plaintiff-intervenor Deloyd T. Parker, Jr. is an adult Black 

citizen of the United States who resides in Harris County, Texas. 

He is registered to vote, and qualified to vote for district 

judges in Harris County. 

10. Plaintiff-intervenor Bennie McGinty is an adult Black 

citizen of the United States who resides in Harris County, Texas. 

She is registered to vote, and qualified to vote for district 

Judges in Harris County. 

11. Defendant William Clements is a white adult resident of the 

State of Texas. He is sued in his official capacity as Governor 

of the State of Texas. In his capacity as Governor, defendant 

Clements is the chief executive officer of the state and as such 

 



  

is charged with the responsibility to see that the laws of the 

State are faithfully executed. 

12. Defendant Jack Rains is a white adult resident of the State 

of Texas. He 1s sued in his official capacity as Secretary of 

State of the State of Texas. In his capacity as Secretary of 

State, he is the chief elections officer of the state and as such 

is charged with the responsibility to administer the election 

laws of the state. The Secretary of State is further empowered 

under the Texas Election Code, Section 31.005, to “ake 

appropriate action to protect the voting rights of the citizens 

of Texas from abuse. 

13. Defendant Jim Mattox is a white adult resident of the State 

of Texas, He is sued in his official capacity as Attorney 

General of the State of Texas. In his capacity as Attorney 

General he is the chief law enforcement officer of the state, and 

as such is charged with the responsibility to enforce the laws of 

the state. 

14. Defendants Thomas R. Phillips, John F. Onion, Ron Chapman, 

Thomas J. Stovall, James F. Clawson, Jr., Joe E. Kelly, Jce B. 

Evins, Sam M. Paxson, Weldon Kirk, Charles J. Murray, Ray D. 

Anderson, and Joe Spurlock, II, are members of the Texas Judicial 

Districts Board, which was created by Art. 5, Sec, 7a of the 

Texas Constitution in 1985. The Judicial Districts Board is 

 



required to enact statewide reapportionment if the legislature 

fails to do so, after each federal decennial census. In addition 

to statewide reapportionment, the Judicial Districts Board may 

reapportion the judicial districts of the state as the necessity 

arises in its judgment. The Judicial Districts Board is 

comprised of twelve ex officio members, and one lawyer member 

appointed by the Governor of the State of Texas. No member of 

the Texas Judicial Districts Board has ever been Black. 

Factual Allegations 
  

15. Texas has a history of official discrimination that touched 

the right of Black citizens to register, to vote, and otherwise 

to participate in the democratic process. 

16. Primary elections were restricted to whites in Texas until a 

Black resident of Houston successfully challenged this 

discriminatory practice before the Supreme Court of the United 

States in 1944. 

17. The Texas Legislature created a state poll tax in 1902 which 

helped to disenfranchise Black voters until the use of poll taxes 

was outlawed by the Supreme Court of the United States in 1966. 

18. It has been estimated that the poll tax and white primary 

reduced the number of Blacks participating in Texas elections  



  

from approximately 100,000 in the 1890’s to 5,000 by 1906. 

1S. The State of Texas, and its political subdivisions are 

covered by Section 5 of the Voting Rights Act of 1968, as 

amended, the special administrative preclearance provision for 

monitoring all State and local voting changes. 

20. Elections in Texas in general, and Harris County in 

particular, are characterized by significant racial bloc voting. 

In such elections, white voters generally vote for white 

candidates and Black voters generally vote for Black candidates. 

The existence of racial bloc voting dilutes the voting strength 

of Black voters where they are a minority of the electorate. 

21. Texas has traditionally used, and continues to use unusually 

large election districts, particularly in large metropolitan 

areas such as Harris County, which have large concentrations of 

minority voters. 

22. The political processes leading to nomination or election in 

Texas in general, and Harris County in particular, are not 

equally open to participation by Blacks, in that Blacks have less 

opportunity than other members of the electorate to participate 

in the political process and to elect representatives of their 

choice. For example, Black citizens continue to bear the effects 

of pervasive official and private discrimination in such areas of 

 



  

education, employment and health, which hinders their ability to 

participate in the political process. 

23. According to the 1980 Census, Texas had a total population 

of 14,228,383. Blacks comprise approximately 12 percent of the 

State’s population. 

24. No Black attorney has ever served on the Texas Supreme Court 

or on the Texas Court of Criminal Appeals. 

25. District judges in Texas are elected in an exclusionary at 

large numbered place system. 

26. Only 2% of district judges in Texas are Black. One (1) 

percent of the State’s appellate justices are Black. 

27. Harris County is made up of 27 cities in southeastern Texas, 

of which Houston is the largest. Houston is the largest city in 

Texas. The population of Houston is approximately 1,728,910. 

The Black population of Houston is 440,346. 

28. Harris County covers 1,723 square miles. According to the 

Texas Data Center, in 1987 the population of Harris County was 

2,782,414, Blacks comprise approximately 19.5% of the Harris 

County population. 

 



  

29. The voting age population of Harris County is 1,685,081. 

Eighteen (18) percent of the voting age population in Harris 

County is Black. 

30. Harris County is served by fifty-nine (59) district judges. 

This is the largest number of district judges of any judicial 

district in Texas. Harris County is also the largest judicial 

district by population. 

31. In recent years Black candidates have run for district judge 

in almost every general election in Harris County, yet only 4 

judges out of 59 (6.7% of the district judges), are Black. 

32. In the November 1988 General Election for example, six Black 

candidates ran for twenty-five (25) contested district judge 

positions. All six Black candidates lost, despite overwhelming 

Black voter support. Similarly, in the November 1986 General 

Election, of ten Black candidates who ran in twenty (20) 

contested races, eight lost, despite overwhelming support from 

Black voters. 

33. Justices of the Peace are elected from single member 

precincts within Harris County. There are 2 Black Justices of 

the Peace in Harris County, elected from a precinct with a 

majority Black voting age population. 

 



  

34. There is a substantial degree of residential segregation by 

race in Harris County. 

35, Blacks in Harris County are =a politically cohesive, 

geographically insular minority and the judicial candidates they 

support are usually defeated by a bloc voting white majority. 

36. Plaintiff-intervenors reallege the contents of paragraphs of 

11-29 of Plaintiffs’ First Amended Complaint, as they relate to 

Harris County, Texas. 

37. In 1985, Art. 5 §7 of the Texas Constitution of 1876 was 

amended to include §7(a), which created the Judicial Districts 

Board and provided in relevant part that: 

The legislature, the Judicial Districts Boards, 
or the Legislative Redistricting Board may not 
redistrict the judicial districts to provide for 
any judicial district smaller in size than an 
entire county except as provided by this section. 
Vernon’s Ann. Tex. Const. Art. Bs 87(a)i. 

38. Prior to the 1985 amendment, the Texas Constitution provided 

that "The State shall be divided into as many judicial districts 

aS may now or hereafter be provided by law, which may be 

increased or diminished by law." Art. 5. §7, Texas Constitution 

of 1876. 

10 

 



  

39. Although all counties in Texas have more than one district 

judge, no county in Texas holds elections for single member 

judicial districts. All districts judges in Texas run in 

exclusionary at large, winner take all, numbered place elections. 

40. This electoral practice dilutes the voting power of 

politically cohesive, geographically insular communities of Black 

voters which could constitute effective voting majorities in 

single member districts. 

41. Using 1980 census figures, it would be possible to draw at 

least eleven single member geographically compact districts of 

equal population in which the majority of the voting age 

population is Black. 

42. In the alternative, the failure to use a non-exclusionary at 

large election system for district judges, dilutes the voting 

strength of Black voters. The use of a non-exclusionary at large 

voting system could afford Blacks an opportunity to elect 

judicial candidates of their choice. For example, under an at 

large system utilizing limited or cumulative voting, Black voters 

would have a more equal opportunity to elect district judges. 

11 

 



  

Allegations Regarding Intervention 
  

43. On July 11, 1988 plaintiffs filed an action on behalf of 

Mexican-American and Black plaintiffs challenging the district 

judges schemes in forty-four (44) counties throughout Texas, 

including Harris County. 

44. Plaintiff-intervenors seek to intervene in this action, 

pursuant to Rule 24 (a) of the Fed. Rule Civ. Procedure, in order 

to protect the interests of Black plaintiffs in the Harris. County 

area, who will be affected by a decision in this case. They are 

entitled to intervene as a matter of right because their 

application is timely, disposition of the action may impair or 

impede the ability of Black voters to protect their interest in 

ensuring that the method of electing district judges in Harris 

County is equally open to Black citizens, and the proposed- 

intervenors are not adequately represented by existing parties. 

12 

 



First Claim for Relief 
  

45. Plaintiffs reallege the contents of paragraphs 1-42. 

46. The present districting scheme for Texas district judges was 

adopted with the intention and/or has been maintained for the 

purpose of minimizing the political strength of Black voters in 

violation of the Fourteenth and Fifteenth Amendments to the 

United States Constitution, section 2 of the Voting Rights Act of 

1965 as amended, 42 U.S.C. $1973, and 42 U.S.C. § 1983. 

Second Claim for Relief 
  

47. Plaintiffs reallege the contents of paragraphs 1-42. 

48. The present districting scheme for Texas district judges has 

the result of making the political processes leading to 

nomination and election less open to participation by Black 

voters in that they have less opportunity than other citizens to 

elect the candidates of their choice, and thereby violates 

section 2 of the Voting Rights Act of 1965 as amended, 42 U.S.C. 

51973. 

 



  

Relief 

WHEREFORE, plaintiffs ask this Court to enter a judgment: 

1. Granting plaintiffs request to intervene in this action; 

2. Declaring that the present districting scheme for electing 

Texas district judges violates the Fourteenth and Fifteenth 

Amendments to the Constitution, section 2 of the Voting Rights 

Act of 1965 as amended, 42 U.S.C. § 1973, and. 42 U.S.C. § 1983; 

3. Ordering defendants to develop and establish a scheme for 

electing district judges that fully remedies the dilution of 

plaintiff-intervenors voting strength and provides Black voters 

with an equal opportunity to elect the candidates of their 

choice; 

4. Granting plaintiff-intervenors their taxable costs in this 

action, necessary expenses of the litigation, and reasonable 

attorney’s fees; and 

5. Providing such other relief as the Court finds just. 

14 

 



  

Respectfully submitted, 

JULIUS LENONNE CHAMBERS 
SHERRILYN A. IFILL 
NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 

16th floor 
New York, New York 10013 

219-1900 

¢ 
/ GABRIELLE K. McDONALD 

MATTHEWS & BRANSCOMB 301 Congress Avenue 
A Professional Corporation Suite 2050 

Austin, TX 78701 
(512) 320-5055 

  

  

     

      Of Counsel: 
   

Attorneys for Plaintiff 
-Intervenors 

Houston Lawyers’ Association, 
et al. 

January 19, 1988 

15 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 
(LULAC), et al., 

PLAINTIFFS, 

vs. No. 88-CA-154 
  

WILLIAM CLEMENTS, Governor of the State of 
Texas; JIM MATTOX, Attorney General of the State 
of Texas; JACK RAINS, Secretary of State of the 
State of Texas, all in their official capacities; 
THOMAS R. PHILLIPS; JOHN F. ONION, JR.; RON CHAPMAN: 
THOMAS J. STOVALL, JR.; JAMES F. CLAWSON, JR.; JOE 
E. KELLY; JOE B. EVINS; SAM B. PAXSON: WELDON KIRK; 
CHARLES J. MURRAY; RAY D. ANDERSON; JOE SPURLOCK II, 
all in their official capacities as members of the 
Judicial Districts Board of the State of Texas, 

DEFENDANTS. 

MOTION OF HOUSTON LAWYERS’ ASSOCIATION 
PLAINTIFFS TO INTERVENE 
  

  

Pursuant to Fed. R. Civ. PD. 24(a) and 24(b), proposed 

intervenors Houston Lawyers’ Association, Alice Bonner, Weldon 

Berry, Francis Williams, Rev. William Lawson, Deloyd T. Parker, 

and Bennie McGinty, Black registered voters in the State of 

Texas, residing in Harris County, move for leave to intervene in 

this action. Their proposed complaint in intervention is 

attached to this motion as Appendix 1. 

As grounds for this motion, proposed intervenors state: 

: 

 



  

i. On July 11, 1988, plaintiffs filed suit seeking a 

declaratory judgment that the existing at large system for 

electing district judges in forty four (44) counties in Texas 

violates the Voting Rights Act of 1965, as amended, and the 

Constitution of the United States, in that such a system dilutes 

the voting strength of Mexican-American and Black voters. 

Plaintiffs filed an amended complaint on August 15, 1988. 

2. On September 27, 1988, defendants filed a motion to stay 

this case, pending a decision by the Supreme Court of the United 

States on whether to grant certiorari to Louisiana state   

petitioners in the case of Chisom Vv. Roemer. In that case, the   

Fifth Circuit Court of Appeals held that judicial elections are 

covered by §2 of the Voting Rights Act. This court granted the 

defendant’s motion to stay. That stay was lifted on November 

25, 1988 after the Supreme Court denied certiorari to the Chisom   

Vv. Roemer petitioners.   

3. Proposed intervenors seek to represent Black voters in 

Harris County, Texas, whose right to participate equally in the 

electoral process has been denied by the at large system of 

electing district judges in Texas, as currently constituted. 

Proposed intervenors seek to present to the court evidence of the 

local interaction of economic, social and political forces which, 

in conjunction with the current unmodified at large electoral 

scheme, has resulted in the inability of Blacks to elect 

candidates of their choice to the Texas judiciary. 

4. Proposed intervenors also seek to have the court order 

 



  

the defendants to develop a new districting scheme, and/or a 

modification of the current at large electoral system, so as to 

recognize fully the voting strength of Black voters. 

WHEREFORE, proposed intervenors request that this Court 

grant their motion to intervene. 

 



  

Respectfully submitted, 

JULIUS EL CHAMBERS 
SHERRIL A. IFILL 

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 
16th Floor 
New York, New York 10013 
(212) 219-1900 

Of Counsel: il 
IELLE K. McDONALD 

MATTHEWS & BRANSCOMB 301 Congress Avenue 
A Professional Corporation Suite 2050 

Austin, TX 178701 
(512) 320-5055 

  

  

Attorneys for Plaintiff- 
Intervenors 

Houston Lawyers’ Association, 
et al. 

January 18, 1988 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that on the th day of January, 1989, a 

true copy of the foregoing Motion for Houston Lawyers Association 

Plaintiffs to Intervene, Memorandum in Support, and Complaint in 

Intervention, were served upon counsel for all parties by 

depositing same in the United States mail, first class postage 

prepaid, addressed to the following: 

Garrett, Thompson & Chang Rolando L. Rios 
Attorneys At Law 
8300 Douglas, Suite 800 
Dallas, Texas 75225 
Attorneys of Plaintiff Watson 

Susan Finkelstein 

Attorney At Law 

Attorney At Law 
201 No. St. Mary’s, Suite 521 
San Antonio, Texas 78205 
Attorney for Plaintiffs 

Renea Hicks 
Assistant Attorney General 

201 No. St. Mary’s, Suite 600 
San Antonio, Texas 78205 
Attorney for Plaintiff Moreno 

P.O0.Box 12548, Capitol Station 
Austin, Texas 78711 
Attorney for Defendants 

el 
  

ielle K. McDonald 
Attorney for Intervenors 

Houston Lawyers’ Assoc., et al. 

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 
MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 
(LULAC), et al., 

PLAINTIFFS, 

VS. No. 88-CA-154 
  

WILLIAM CLEMENTS, Governor of the State of 
Texas; JIM MATTOX, Attorney General of the 
State of Texas; JACK RAINS, Secretary of State 
of the State of Texas, all in their official 
capacities; THOMAS R. PHILLIPS, JOHN F. ONION, 
JR.; RON CHAPMAN; THOMAS J. STOVALL, JR.; JAMES 
F. CLAWSON, JR.; JOE E. KELLY: JOE B. EVINS; 
SAM B. PAXSON; WELDON KIRK; CHARLES J. MURRAY; 
RAY D. ANDERSON; JOE SPURLOCK IY, all in their 
official capacities as members of the Judicial 
Districts Board of the State of Texas, 

DEFENDANTS. 

MEMORANDUM IN SUPPORT OF PILAINTIFF-INTERVENORS ’ 
MOTION TO INTERVENE 
  

  

On July 11, 1988, plaintiffs filed suit challenging the 

current scheme of electing district judges in forty-four (44) 

counties in Texas, as violative of the Constitution of the United 

States and Section 2 of the Voting Rights Act of 1965, as 

amended. Plaintiffs seek declaratory and injunctive relief, 

requiring the defendants to draw judicial district boundaries 

which will create single member districts, from which Mexican- 

American and Black voters may elect judicial candidates of their 

choice. 

 



Proposed plaintiff-intervenors, Black voters who reside in 

  

Harris County, Texas, seek to intervene in this action for the 

purpose of protecting their right to participate equally in the 

electoral process and elect judicial candidates of their choice 

to the Texas state judiciary, and to insure that any court 

ordered remedy recognizes fully the voting strength of Black 

voters in Harris County. 

1. Intervention is Appropriate Under Rule 24 (a)   

Proposed plaintiff-intervenors are entitled to intervene as 

2 right in this lawsuit. Fed. R. Civ. Pp. 24 (a) provides that: 

[ulpon timely application, anyone shall be 
permitted to intervene in an action...when the 
applicant claims an interest relating to the ... 
transaction which is the subject of the action and 
applicant is so situated that the disposition of 
the action may as a practical matter impair or impede 
the applicant’s ability to protect that interest, 
unless the applicant’s. interest is adequately repre- 
sented by existing parties. 

Proposed plaintiff-intervenors satisfy each of the four 

requirements of this rule. 

A. Proposed plaintiff-intervenors’ application is timely.   

Timeliness is to be determined from all the circumstances of 

  

the case. Leslsz v. Kavanagh, 710 F.2d 1040, 1043 (5th Cir. 

1983) (citing NAACP V. New York, 413 U.S. 345, 365-66, 37 L.EA.   

2d 648 (1973)). This circuit has set out four factors that 

 



  

determine the circumstances governing timeliness: (1) the length 

of time during which the proposed intervenor knew or reasonably 

should have known of his/her interest in the case before filing 

to intervene; (2) the extent of the prejudice that the existing 

parties to the litigation may suffer as a result of the proposed 

intervenor’s failure to move to intervene as soon as he/she 

actually knew or reasonable should have known of his/her interest 

in the case; (3) the extent of the prejudice that the proposed 

intervenor may suffer if his/her petition for leave to intervene 

is denied; and (4) the existence of unusual circumstances 

militating either for or against a determination that the action 

is timely. See Ass’n of Professional Flight Attendants v. Gibbs,   

  

804 F.2d 318, 320-321 (5th Cir. 1986) (citing Stallworth wv. 

Monsanto Co., 558 F.2d 257, 264-266 (5th Cir. 1977)).   

The circumstances of this case make intervention timely. 

Only six months have passed since the original complaint was 

filed on July 11, 1988. Defendants filed an answer on September 

26, 1988. No legal issues have been decided, and only minimal 

discovery has taken place. On October 17, 1988 before discovery 

commenced, this court entered an order staying the proceedings, 

pending the disposition of the petition for writ of certiorari in 

the case of Roemer v. Chisom. The issue raised in that case,   

whether §2 of the Voting Rights Act applies to judicial 

elections, was germane to the disposition of the case at hand. 

Defendants, therefore, are not prejudiced by the timing of this 

proposed intervention. As a practical matter, discovery has only 

 



  

recently commenced, although the stay in the instant case was 

lifted on November 25, 1988 following the Supreme Court’s denial 

of certiorari in Roemer v. Chisom. Trial is set for April 17,   
  

1988. 

B. Interest of Proposed Plaintiff-intervenors. 
  

Proposed plaintiff-intervenors have a substantial interest 

in the "transaction" that is the subject of this case. They are 

Black voters residing in Harris County, Texas, one of the 

counties where the judicial districting scheme was challenged in 

the original action. Proposed plaintiff-intervenors have a 

significant interest in proving that the at large system of 

electing judges, as currently constituted, dilutes the votes of 

Blacks in particular, and as such, undermines the ability of 

Blacks to elect candidates of their choice to the judiciary. 

Moreover, proposed plaintiff-intervenors have a strong 

interest in ensuring that any remedial plan which may be 

implemented as a result of this suit will result specifically in 

increasing the electoral opportunities for Black voters in Harris 

County. Proposed plaintiff-intervenors in their complaint, have 

challenged specific aspects of the current at large system which 

may require alternative remedies other than the single member 

districts which are prayed for by plaintiffs. The modified at 

large election plans proposed by plaintiff-intervenors, may prove 

critical to fashioning an equitable remedy for Black voters in 

 



  

Harris County. 

C. Proposed Intervenors’ Interest Will Be 
  

Impaired or Impeded by Disposition of this Action 
  

If intervention is denied, the disposition of this action 

will clearly impede the proposed intervenors’ ability to protect 

their interests in gaining equal access to the electoral process. 

Any outcome of this case will affect the proposed intervenors’ 

rights under the Constitution of the United States and the Voting 

Rights Act of 1965. 

The interest of Black voters in establishing that the 

current electoral system impairs their ability to elect 

candidates of their choice to the Texas judiciary, will be 

critically undermined by the disposition of this suit if Black 

voters are denied the right to Play a critical role in 

establishing liability and in fashioning an appropriate remedy. 

D. Adequacy of Representation. 
  

Finally, proposed intervenors are entitled to intervention 

as a right because their interest is not adequately represented 

by the parties now before the Court. 

This circuit follows the Supreme Court rule that the burden 

of establishing inadequate representation for the purposes of 

intervention should be treated as minimal. See Baker v. Wade, 743 
  

 



  

F.2d 236, 240 (5th Cir. 1984) (citing Trbovich Vv. United Mine 
  

Workers of America, 404 U.S. 528, 538 n. 10, 982 S.C." 630, 636 n.   

  

10, 30 L.Ed.2d 686,694 n.10 (1972)); see also Bush v. Viterna, 

740 ‘F.2d 350, 355 (5th Cir. 1984). As stated by the court in 

Baker and Bush, the requirement of Rule 24(a) " is satisfied if 

the applicant shows that representation of his interest ‘may be’ 

inadequate." Bush v. Viterna, 740 F.2d at 355 (5th Cir. 1984)   

(quoting Trbovich, 404 U.S. at 538 n.10.); Baker wv. Wade, 743   

  

F.24 at 240. 

In order to determine whether the at large system of 

electing district judges as currently constituted, violates the 

provisions of §2 of the Voting Rights Act, this court must engage 

in an " intensely local appraisal" of the "past and present 

reality, political and otherwise" of each of the challenged 

counties. Thornburgh v. Gingles, 478 U.S. 30, 78-79 (1986).   

The proposed plaintiff-intervenors, Black voters, are in the best 

position to provide the court with evidence of the local 

interaction of social, political and economic forces and its 

effect on the participation of Blacks in the political process in 

Harris County. 

Proposed plaintiff-intervenors are particularly concerned 

that their interests as Black voters be adequately and fully 

represented in conjunction with the claims of plaintiff Mexican- 

American voters. Proposed plaintiff-intervenors seek to 

represent specifically the interests of Black voters, whose right 

to participate in the political process has been critically 

 



  

undermined by the current judicial electoral scheme. Black 

plaintiffs are uniquely qualified to present the evidence needed 

to prove the liability of the defendants. with regard to Black 

voters. Moreover, the original remedy proposed by the plaintiffs 

may not adequately represent the interest of proposed plaintiff- 

intervenors. 

Because defendants will not be prejudiced, proposed 

plaintiff-intervenors timely application to intervene should be 

granted. 

2. In the Alternative, Intervention is Proper   

  

Under Rule 24 (b) 

Even if the Court determines that the proposed plaintiff- 

intervenors are not entitled to intervention as a right, they 

should be permitted to intervene in this lawsuit pursuant to Rule 

24 (b), which provides that intervention may be permitted when "an 

applicant’s claim or defense and the main action have a question 

of law or fact in common," and when intervention will not " 

unduly delay or prejudice the adjudication of the rights of the 

original parties." 

Clearly, in this case, the questions of law raised by 

plaintiffs and by proposed plaintiff-intervenors are common. 

Both challenge the methed of electing district judges in Texas 

under §2 of the Voting Rights Act of 1965, as amended, and the 

Constitution of the United States. Moreover, proposed plaintiff- 

 



  

intervenors are in a unique position to present factual 

information regarding the effect of the current electoral scheme 

on the ability of Black voters to elect candidates of their 

choice to the Texas judiciary. The court should properly 

consider the fact that the proposed intervenors "will 

significantly contribute to full development of the underlying 

factual issues in the suit." New Orleans Public Service Inc., Vv. 
  

United Gas Pipe Line Company, 732 F.2d 452,472 (5th Cir. 1984),   

cert. denied, Morial v. United Gas Pipe Line Co., 469 U.S. 1019,   

83 L.Ed 2d 360 (1984) (quoting Spangler v. Pasadena City Bd. of 
  

  

Ed... 552 F.24 1326, 1329 (9th Cir. 3977). 

Finally, permitting intervention would neither delay nor 

prejudice the rights of the original parties. 

 



  

Respectfully submitted, 

Show A. Stl 
~ LL T h CHAMBERS 

SHERRILYN A. IFILL 
99 Hudson Street 
16th Floor 
New York, NY 10013 

(212) 219-1900 

Of Counsel: 
4 (Hla 

RIELLE K. McDONALD MATTHEWS & BRANSCOMB 301 Congress Avenue 
A Professional Corporation Suite 2050 

Austin, TX. 78701 

(512) 320-5055 

  

  

Attorneys for Plaintiff 
-Intervenors 

Houston Lawyers’ 
Association, et al. 

January 19, 1988